AVALON CITY COUNCIL MEETING WHICH WILL ALSO INCLUDE
A MEETING OF THE CITY COUNCIL ACTING AS
THE SUCCESSOR AGENCY TO THE ACIA AND THE HOUSING AUTHORITY, AND THE HOUSING AUTHORITY TUESDAY, DECEMBER 12, 2023 — 5:00 PM 410 AVALON CANYON ROAD
THIS VIRTUAL MEETING IS HELD PURSUANT TO AB 361
AGENDA
In compliance with the Americans with Disability Act, if you need special assistance to participate in this meeting, please contact the City Clerk’s Office (310) 510-0220. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. (28 CFR 35. 102-
35.104 ADA Title II). All public records relating to an agenda item on this agenda are available for the public inspection at the time the records are distributed to all, or a majority of all, members of the City Council. Such records shall be available at City Hall located at 410 Avalon Canyon Rd.
Due to social distancing recommendations from the Center for Disease Control and State of California Division of Occupational Safety and Health (Cal/OSHA) and the County of Los Angeles, and pursuant to findings made under AS 361, the CITY OF AVALON’S CITY COUNCIL SHALL GENERALLY BE AVAILABLE TO THE PUBLIC REMOTELY. The general public may attend the meeting in the Council Chambers however must adhere to social distancing requirements. The public is encouraged to watch and participate from the safety of their homes while practicing social distancing.
Council Chambers are open to the general public. Once the Council Chambers reach maximumoccupancy (as determined by the Fire Chief), the general public may participate in Oral Communication and address the City Council on an agenda item in person by waiting in the City Hall Court Yard and entering the Chambers one at a time at the appropriate time. No one will be admitted into the Council Chambers who is ill or exhibiting symptoms of COVID-19. Additionally, the general public may participate in Oral Communication and address the City Council on an agenda items by providing comments via Zoom or by sending comments to askcityofavalon .com.
For the public’s convenience, but not participation, the meeting can be viewed:
On local cable: Catalina Broadband Solutions channel 3
Streaming Online: www.cityofavalon.com/meetings *Streaming on Facebook Live: www.facebook.com/CityOfAvalonOfficial Streaming on YouTube: https:/lwww.youtube.com/CityofAvalonCA
FOR REMOTE PUBLIC PARTICIPATION
1) Join the Meeting via Phone Conference (Voice Only):
Phone Number: (669) 444-9171,Meeting ID: 812 4963 9798
Passcode: 637481
When you would like to comment during the meeting enter *9 on the phone’s key pad to activate the “raise hand” button at the time the Agenda Item is being presented for City Councilconsideration.
CITY COUNCIL/HOUSING AUTHORITY/SUCCESSOR AGENCY AGENDA
DECEMBER 12, 2023PAGE 2
CALL TO ORDER / PLEDGE OF ALLEGIANCE I INVOCATION I ROLL CALL
ANNOUNCEMENTS I WRITTEN COMMUNICATIONS
DEPARTMENT HEAD REPORTS
CITY MANAGER REPORT / CITY ATTORNEY REPORTCOUNCILMEMBER REPORTS / MAYOR REPORTORAL COMMUNICATION Members of the public may address the City Council at this time. No action will be taken on nonagenda items at this meeting. Speakers should limit comments to two (2) minutes each.
PRESENTATIONS - Southern California Edison Compliance Advisor, Traci Degnan, will provide the state mandated Annual Propane Gas Safety Public Awareness presentation.
CONSENT CALENDAR
1. Minutes
Although the live recording is the official record of public meetings, actions are preparedfor the Council’s approval.
Recommended Action
Approve minutes from the November 28, 2023 regular City Council Meeting.
2. Warrants
Expenditures Submitted for Approval
o Warrants in the amount of $719,170.84.
o Warrant from the CIMC Improvement Fund totaling $119,712.96.o One payroll totaling $233,097.90.o Three electronic fund transfers totaling $89,859.50.
Recommended Action
Approve total expenditures for November 20, 2023 through December 1, 2023 totaling $1,161,841.20.
3. Development Impact Fees Annual Report for the Fiscal Year Ended June 30, 2023 In February 2020, City Council adopted the findings of the development impact fee nexus study and established certain development impact fees and capacity charges. Reporting requirements under California Government Code 66006 specify that the City mustprepare annual reports of Development Impact Fees within 180 days of the close of the fiscal year.
Recommended ActionReceive and file the Fiscal Year 2022-23 Development Impact Fees Annual Report.
CITY COUNCILIHOUSING AUTHORITYISUCCESSOR AGENCY AGENDA
DECEMBER 12, 2023PAGE 3
** The following item on the Consent Calendar is the City Council acting as the HousingAuthority **
4. Housing Successor Agency Annual Report for Fiscal Year 2022-23 Health and Safety Code Section 34176.1 requires successor housing entities to prepare an annual report documenting compliance with expenditure proportionality and otherrequirements pertaining to the housing asset fund. The report is due to the California Department of Housing and Community Development by December 31, 2023.
Recommended Action
Adopt a resolution approving a Housing Authority Successor Agency Annual Report for Fiscal Year 2022-23.
** The following item on the Consent Calendar is the City Council acting as the Successor Agency to the Avalon Community Improvement Agency **
5. Recognized Obligation Payment Schedule (ROPS) 24-25 and Successor Agency Administrative Budget for Fiscal Year 2024-25As a result of the dissolution of redevelopment, the Successor Agency was created to administer the enforceable obligations and unwind the affairs of the former Avalon Community Improvement Agency. As part of that process, the Successor Agency must annually adopt the Recognized Obligation Payment Schedule, as required by Dissolution Law.Recommended Action
Adopt ‘A Resolution of the Successor Agency to the Avalon Community ImprovementAgency Approving a Recognized Obligation Payment Schedule 24-25 and SuccessorAgency Administrative Budget for Fiscal Year 2024-25.’
GENERAL BUSINESS
6. Cruise Ship Annual Report for the year ending December 31, 2023 In December 2022, the City Council adopted Resolution No. 22-55 establishing guidelines for the approval of cruise ships visiting Avalon through December 31, 2024. Theguidelines re-affirmed the framework by which cruise ships would be approved to visit Avalon as a port of call.
Recommended ActionReceive and file the Cruise Ship Annual Report for the calendar year ending December 31, 2023.
7. Authorization to Procure Various Process Analyzers for WWTP.
PERC Water maintains the City’s WWTP, and is requesting to procure various process analyzing equipment for the plant from Hach Company. The efficient and reliable operation of the treatment plant is essential to ensuring the environmental health andsafety of our community. The proposed equipment includes chlorine probes & controllers,
CITY COUNCIL/HOUSING AUTHORITY/SUCCESSOR AGENCY AGENDA
DECEMBER 12, 2023PAGE 4
dissolved oxygen (DO.) probes & controllers, and turbidity probes & controllers.
Recommended Action(1) Make the affirmative finding that the Hach Company has satisfied the sole sourcerequirement as specified in the Avalon Municipal Code Section 3-4.111(b). (2) Authorize PERC Water to procure various process analyzing equipment from Hach Company for the Wastewater Treatment Plant (WWTP) (3) Allocate funds from Sewer Fund 108-25-6552 for the procurement in the amount of not to exceed $89,900.
S. First Reading of an Ordinance Amending Title 2. Chapter 2-2, Section 2-2.307 City Manager Powers and Duties of the Avalon Municipal Code
City Staff recommend amending Title 2, Chapter 2-2, Section 2-2.307 of the AvalonMunicipal Code to broaden the powers of the City Manager to include appointment,removal, promotion and demotion of the office of the City Clerk.Recommended Action Introduce and waive the all further readings of an ordinance of the City of Avalon amending Title 2, Chapter 2-2, Section 2-2.307 City Manager Powers and Duties of the Avalon Municipal Code.
9. Award Above Ground Fuel Tank Installation and Site Remediation Contract The State of California requires the owners or operators of specific types of underground fuel storage tanks to permanently close by December 31, 2025. The City of Avalon ownsfour underground fuel tanks at the Avalon Fuel Dock that fall under this requirement. A REP for the third and final procurement component of this project — above ground fuel tank installation, removal of existing underground storage tanks, and site remediation — will close on December 11, 2023 at 3:00 p.m.
Recommended Action
Authorize the City Manager to negotiate and execute the contract for the above groundfuel tank installation and site remediation project to the lowest, responsible bidder.
10. Solicitation of Request for Qualified Bidders for Phase II of the Cabrillo Mole Fern’ Terminal Rehabilitation ProjectThe Cabrillo Mote Ferry Terminal is a multimodal transportation hub used by crosschannel carrier passengers traveling between the City and the mainland, cruise shipdisembarkment/embarkment, and serves as the primary entry point to the City. The second phase of the project will replace and reconfigure the existing structures to improve passenger queuing and adjacent transportation circulation. City Staff has determined the best and most efficient way to move the project forward is through a design-build process.
Recommended Action
Authorize the City Manager, or his designee, to solicit a request for qualifications to determined appropriate bidders for a design-build contractor for Phase II of the Cabrillo Mole Ferry Terminal Rehabilitation Project.
CITY COUNCILIHOUSING AUTHORITY!SUCCESSOR AGENCY AGENDA
DECEMBER 12, 2023
PAGE 5
ADJOURN
NOTICE OF POSTING
I, Devin Hart, declare that the City Council Agenda forTuesday, December 12, 2023 was posted on Thursday, December 7, 2023 on the City’s website www.cityofavalon.com/agendacenter, andat City Hall, 410 Avalon Canyon Road.Devin Elise Hart, Management Analyst
CITY OF AVALON CITY COUNCIL
MEETING DATE: December 12, 2023 AGENDA ITEM: 1
ORIGINATING DEP: City Clerk CITY MANAGER:__________
PREPARED BY: Gabrielle Morones, Deputy City Clerk
SUBJECT: City Council Minutes
RECOMMENDED ACTION(S): Approve minutes from the November 28, 2023 regular City Council Meeting.
REPORT SUMMARY: Although the live recording is the official record of publicmeetings, minutes are prepared for the Council’s approval.
FISCAL IMPACTS: N/A.
GOAL ALIGNMENT: Not Aligned.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: N/A.
FOLLOW UP ACTION: File minutes in the City Clerk’s office.
ADVERTISING, NOTICE AND PUBLIC CONTACT: The item was properly listed on the posted agenda pursuant to the Brown Act.ATTACHMENTS:
. November 28, 2023 regular City Council Meeting Minutes
AVALON CITY COUNCIL MEETING
TUESDAY, NOVEMBER 28, 2023
THIS VIRTUAL MEETING IS HELD PURSUANT TO AB 361
MINUTES
Due to social distancing recommendations from the Center for Disease Control and State of California Division of Occupational Safety and Health (Cal/OSHA) and the County of Los Angeles, and pursuant to findings made under AR 361, the CITY OF AVALON’S CITY COUNCIL SHALL GENERALLY BE AVAILABLE TO THE PUBLIC REMOTELY. The general public may attend the meeting in the Council Chambers however must adhere to social distancing requirements. The public is encouraged to watch and participate from the safety of their homes while practicing social distancing.
Council Chambers are open to the general public. Once the Council Chambers reachmaximum occupancy (as determined by the Fire Chief), the general public may participatein Oral Communication and address the City Council on an agenda item in person by waiting in the City Hall Court Yard and entering the Chambers one at a time at the appropriate time. No one will be admitted into the Council Chambers who is ill or exhibitingsymptoms of COVID-19. Additionally, the general public may participate in OralCommunication and address the City Council on an agenda items by providing comments via Zoom or by sending comments to [email protected] TO ORDER: 5:00 p.m.
ROLL CALL - Present via Teleconference and In-Person: Mayor Anni Marshall, Councilmembers Lisa Lavelle, Michael Ponce, Mary Schickling and Yesenia De La Rosa.
Also present: City Manager David Maistros, City Attorney Scott Campbell and Deputy City Clerk Gabrielle Morones.
ORAL COMMENTS - City Staff received two written correspondances via ask.com. One was from Kate Ruddon regarding Transient Rental Licenses and one from Catalina Business Enterprises regarding ICON of Avalon’s business proposal. Copies were distributed to City Council and are on file in the City Clerk’s office.
PRESENTATIONS - None
CONSENT CALENDAR - There were 9 Items on the Consent Calendar. Motion toapprove Items #1-#9 made by Michael Ponce, seconded by Lisa Lavelle. (All Ayes)
1. Minutes
Approved minutes from the November 2, 2023 Special City Council Meeting and November 7, 2023 regular City Council Meeting.
2. Warrants
Approved warrants in the amount of $635,233.43, two payroll totaling $477,018.53, two electronic fund transfers totaling $93,819.28 for a total expenditure of $1,206,071.24 October 30, 2023 through November 17, 2023.
CITY COUNCIL MINUTES
NOVEMBER 28, 2023PAGE 2
3. Findings to Continue to Hold Remote TeleconferenceNirtual City Council Meetings Pursuant to Assembly Bill 361Reconsidered the circumstances of COVID-19 state of emergency proclaimed by the Governor and COVID-1 9’s continued impact and determined that state or local officials have imposed or recommended measures to promote social distancing inconnection with COVID-19, and as such, that continuing to utilize the protections of Assembly Bill 361 will protect the health and safely of attendees.
4. Adopt an Ordinance Amending Title 3, Chapter 3-1. Section 3-1.116 Revocation or Suspension of Licenses of the Avalon Municipal Code
Adopted Ordinance No. 1215-23 of the City of Avalon Amending Title 3, Chapter 3-1, Section 3-1.116 Revocation or Suspension of Licenses of the Avalon Municipal Code.
5. Resolution Approving the Title VI Plan Relating to Section 5309 Funds Adopted Resolution No. 23-41 of the City Council of the City of Avalon, California,Authorizing the Title VI Compliance Plan.
6. Declare Six (6) Spin Bikes as Surplus Eguipment
Adopted Resolution No. 23-42 of the City Council of the City of Avalon Declaring Specified Equipment to be Surplus and Authorizing the Sale or Disposal Thereof.
7. Resolution to Oppose California Business Roundtable Statewide Initiative, Initiative No. 21-0042A1, the Taxpayer Protection and Government Accountability ActAdopted Resolution No. 23-43 of the City Council of the City of Avalon Opposing California Business Roundtable Statewide Initiative, Initiative No. 21-0042A1, the Taxpayer Protection and Government Accountability Act.
8. Avalon Wastewater Treatment Plant Chlorine Contact Tank Coating Procurement Authorized the procurement of supplies, equipment and services for coating the chlorine contact tank at the WWTP chlorine tank for a not-to-exceed sum of$45,000.
9. Extending the City’s the Deadline to Establish an Online Permitting System for Post-Entitlement Phase Permits in Accordance with State Law Adopted Resolutions No. 23-44 of the City Council of the City Avalon, California Extending the Deadline to Establish an Online Permitting System for PostEntitlement Phase Permits Under California Government Code Section 65913.3.5(AB 2234).
CITY COUNCIL MINUTES
NOVEMBER 28, 2023
PAGE 3
PUBLIC HEARING
10. Revised Fiscal Year 2023-2024 Miscellaneous Fee Schedule (1.) Heard a presentation regarding the Miscellaneous Fee Schedule. (2.) Mayor Marshall opened the Public Hearing, no comments were made. (3.) MayorMarshall closed the Public Hearing. (4.) Consensus was made to adopt the fee schedule with revisions as proposed and adopted Resolution No. 23-45 of the City Council of the City of Avalon Sefting Fees for Services, Facilities and Activities of the City of Avalon for Fiscal Year 2023-24.
Motion to approve made by Lisa Lavelle, seconded by Michael Ponce. (All Ayes)
11. Public Hearing — Appeal of the Decision of the Vehicle Hearing Officer: Denial of a Renewal for a Commercial Autoette Permit
(1.) Mayor Marshall open the Public Hearing. (2.) Public Comments were heardfrom the applicant Shawn Cape of Dive Catalina, Lily Chu and Fire Chief Michael Alegria. (3.) Mayor Marshall closed the Public Hearing. (4.) City Council considered applicants appeal and determined to a). Uphold the decision of the Vehicle Hearing Officer’s findings and decision dated September 6, 2023.Motion to approve made by Michael Ponce, seconded by Lisa Lavelle. (4 Ayes Marshall, De La Rosa, Lavelle and Ponce; 1 No-Schickling).
Shawn Cape of Dive Catalina requested that the appeal fee of $455 be waived.Motion to approve made by Anni Marshall, seconded by Michael Ponce.(All Ayes)
GENERAL BUSINESS
12. Authorization to Purchase Spare Pump for Catherine Lift Station (1.) Made the affirmative finding that the Xylem, Inc. has satisfied the solesource requirement as specified in the Avalon Municipal Code Section 3-
4.111(b). (2.) Authorized the purchase of a Flygt 6” submersible sewage pump from Xylem, Inc. to be placed in inventory and be available for immediate replacement for a not-to-exceed cost of $28,500. (3.) Allocated funds from Sewer Fund 108-25-6552 for the procurement in the amount of not-to-exceed$28,500.
Motion to approve made by Anni, seconded by Michael Ponce. (All Ayes)
13. Approval of Encroachment Permit for a Grease Interceptor within Third Street Adiacent to the Lobster Trap Restaurant
(1.) Approved an encroachment permit for a 750-gallon grease interceptor within Third Street adjacent to 126 Catalina Avenue, the Lobster Trap restaurant; and (2.) Authorized the City Manager to negotiate with the property owner to
CITY COUNCIL MINUTES
NOVEMBER 28, 2023PAGE 4
determine the precise location of the installation, and the amounts of the required bond and liability insurance.(3.) Adopted Resolution No. 23-46 of the City Council of the City of Avalon Approving an Encroachment Permit to Allow Installation of a 750-Gallon Grease Interceptor within the Public Right-of-Way Along Third Street.
Michael Ponce recused himself due to a Conflict of Interest.Motion to approve made by Lisa Lavelle, seconded by Yesenia De La Rosa. (4 Ayes-Marshall1 De La Rosa, Lavelle and Schickling; 1 Abstention-Ponce).
14. Authorization to Upgrade Communication Equipment at WWTP (1.) Authorized PERC Water to have The LeMasters Company (TLC) replace the existing communication equipment for the Wastewater Treatment Plant (WWTP) with the radio based Phoenix System. (2.) Allocated funds from Sewer Fund 108-25-6552 for the procurement in the amount of not-to-exceed $110,522.50.
Motion to approve made by Michael Ponce, seconded by Anni Marshall.(All Ayes).
15. Annual Love Catalina Tourism Authority Report
Received and filed report.
CLOSED SESSION-7:21 p.m.-7:59 p.m.
Following the appropriate announcement of the Closed Session items the City Council went into Closed Session to discuss the following:
1. CONFERENCE WITH LEGAL COUNSEL — INITIATION OF LITIGATION Initiation of litigation pursuant to 54956.9(c):
One (1) case.
2. PUBLIC EMPLOYEE APPOINTMENT
Title: City Clerk
Following Closed Session the Mayor announced there was no reportable action.
Mayor Marshall adjourned the meeting at 7:59 p.m.
I, Gabrielle Morones, Deputy City Clerk, do hereby certify that the DVD videotape of theRegular City Council Meeting on November 28, 2023, is the official record of the Council Meeting and is on file and maintained in City Hall.
L-.-
Gabrielle Morones, Deputy City Clerk
CITY OF AVALON CITY COUNCIL
MEETING DATE: December 12, 2023 AGENDA ITEM:
ORIGINATING DEP: Finance CITY MANAGER: tU,11
PREPARED BY: Matthew Baker, Finance Director
SUBJECT: Warrants
RECOMMENDED ACTION(S): Approve total expenditures for November 20, 2023 through December 1, 2023 totaling Si 161 841.20.
REPORT SUMMARY: These disbursements through December jst are comprised of warrants from the US Bank General Account totaling $719,170.84, warrant from the US Bank CIMC Improvement Fund Account totaling $119,712.96, one payroll totaling $233,097.90, and other electronic fund transfers totaling $89,859.50.
ITEM DESCRIPTION AMOUNT DATE
GF US BANK WARRANTS CK# 37073 -37131 $ 719,170.84 11/22/23CIMC US BANK WARRANTS CK# 248 119,712.96 11/28/23 PAYROLL 233,097.90 -12/01/23EFT -CALPERS RETIREMENT 42,104.75 11/22/23 EFT-CALPERS RETIREMENT 42,057.58 11/22/23EFT - HARBOR/REC CREDIT CARD AND BANK SERVICE FEES 5,697.17 12101/23 TOTAL DISBURSEMENTS $ 1,161,84120
GOAL ALIGNMENT: Ongoing meeting of City obligations.
FISCAL IMPACTS: There are sufficient funds available, and the expenditures are included in the FY23-24 Budget.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: N/A
FOLLOW UP ACTION: N/A
ADVERTISING, NOTICE AND PUBLIC CONTACT: Pursuant to the Brown Act.
ATTACHMENTS: Audit Certificate. Warrant List, US Bank Credit Card Detail
CITY OF AVALON
November 20, 2023 - December 1, 2023 DISBURSEMENTS
December 12, 2023
ITEM DESCRIPTION AMOUNT DATE
CF US BANK WARRANTS CKU 37073 -37131 $ 719,17084 11/22/23CIMC US BANK WARRANTS CK4 248 119,71296 11/28/23PAYROLL 233,09790 12/01/23 EFT - CALPERS RETIREMENT 42,10415 11/22/23EFT -CALPERS RETIREMENT 42,057.58 11/22/23 EFT - HARBOR/REC CREDIT CARD AND BANK SERVICE FEES 5,697.17 12/01/23 TOTAL DISBURSEMENTS $ 1,161,841.20
CERTIFICATE
IN ACCORDANCE WITH SECTION 32702OF THE GOVERNMENT CODE, I CERTIFY
THAT THE ABOVE DEMANDS ARE ACCURATEAND THAT FUNDS ARE AVAILABLE FOR PAYMENT.
APPROVED AND AUDITED THIS
12TH DAY OF DECEMBER 2023 I CERTIFY UNDER PENALTY OF PERJLRY
THAT THE FOREGOING IS TRUE AND
CORRECT.
AUDIT COMMITtEE -LISA LAVELLE EXECUTED THIS 12Th DA OF DECEMBER 2023
AUDIT COMMITTEE -MARY SCHICKLING FINANCE DIRECTOR - MATTHEW BAKER
CITY OF AVALON
WARRANT DISBURSEMENTS
December 12, 2023
AMOUNT NAME
$125,123.50 COASTLINE EQUIPMENT
$3,103.64 AAA OIL INC
$485.82 AIR SOURCE INDUSTRIES$248.56 ALEGRIA, MICHAEL
$7,028.24 AMAZON CAPITAL SERVICES, INC.
$242.44 HENRY, AUSTIN
$1,635.85 AVALON FREIGHT SERVICES, LLC$7,429.76 AVALON MOORING & DIVING $21,558.87 BEST, BEST & KRIEGER, LLP
$2,465.50 BEYOND SOFTWARE SOLUTIONS$2,364.28 CATALINA BEVERAGE CO $159.85 CATALINA BROADBAND SOLUTIONS
5128,333.33 CATALINA CHAMBER OF CDMMERCE
$2408333 CATALINA COASTAL TOURS & FISHING
5115.03 CATALINA ISLANDJANITORIAL
$84286.65 CATALINA ISLAND MEDICAL CENTER
$150.00 CATALINA ISLANDER$357.00 CWALINA PEST CONTROL
$5,250.00 CVICPLUS. LLC$2,677.39 DAPEER. ROSENBLIT & LITVAK,LLP $758.00 DEWEY PEST CONTROL5834.63 DION & SONS MARINE FUELS INC 52,078.84 GANAHL LUMBER COMPANY
5310.43 GARCIA, MICHAEL
$8,297.70 GEO-LOGC ASSOCIATES, LLC.
$354.91 GONZALES, ALIANA
$5,368.96 GRAINGER
$62.50 UNDERGROUND SERVICE ALEr/SC
$15,208.33 VEGA, EDMUNDO
51,461.86 HDL CORE-N & CONE
5264.55 HOME DEPOT CREDIT SERVICES
59,660.59 IDR ENVIRONMENTAL SERVICES
$3627858 JORDAHL CONSTRUCTION
$623.03 KATIES KITCHEN$94824 LINDE GAS & EQUIPMENT INC.$910.23 MAISROS, DAVID $2,064.S0 MASA
$688.85 MCMASTER-CARR
$1703.86 MCMASTER-CARR
$33.54 MEFFERT, JOHN
$135.08 NAPA AUTO PARTS
$200.00 NETMOORING
$123,94S,49 PERC WATER
$617.67 QUILL CORP
$1,254.86 QUINN COMPANY
$350.00 S.A.F.F.E.$310.81 RICOH USA, INC.
$1,062.50 RSG, INC
$317.50 RSG, INC
$11,860.00 SAGECREST PLANNING & ENVIRONMENTAL
$644.00 SAND TRAP
$9,357.91 SIRIA’S CLEANING SERVICE
$9,357.91 SIRIA’S CLEANING SERVICE$3,000.00 SOUTHWEST MARINE RESOURCE, INC.$6,000.00 SWRCB $2,000.00 THOMPSON, DAVE
$43918 ULINE, INC.
$0.00 CORPORATE PAYMENT SYSTEMS
$25,313.41 CORPORATE PAYMENT SYSTEMS
DESCRIPTION
PUBLIC WORKS SKID STEERFUEL -ALL DEPARTMENTS
SERVICE -FIREREIMB 0/P COSTSSUPPLIES -ALL DEPARTMENTSSUPPLIES - HOLIDAY DECORATIONSFREIGHT -ALL DEPARTMENTS
SERVICE- HARBOR
LEGAL FEES - 10/2023
CONTRACT SERVICES - ITSUPPLIES -ALL DEPARTMENTSSERVICE - PUBLIC WORKSTRANSIENT OCCUPANCY TAX -12/2023COWRACT SERVICES 12/2023 SERVICE -ADMINISTRATIONSALES TAX PASS THRUADVERTISING ALL DEPARTMENTSSERVICE ‘ HARBORSERVICES ADMINISTRATIONSERVICE .VEHICLES
SERVICE - ALL DEPARTMENTS
FUEL- HARBOR
SUPPLIES . PUBLIC WORKS
REIMB 0/P COSTS
PBL EXPANSION CIPRUMS 0/P COSTS
SUPPLIES. PUBLIC WORKSSERVICES . PUBLIC WORKS
CONTRACT SERVICES- 11/2023
SERVICE FINANCESUPPLIES .PUBLIC WORKS
HHW DISPOSALSERVICE .PUBLIC WORKS
SENIOR MEALS: 09/2023, 10/2023SUPPLIES - HARBOR
REIMB 0/P COSTS
DUES: 1,1/2023, 12/2023SUPPLIES - FIRESUPPLIES - PUBLIC WORKSREIMB 0/P COSTSSUPPLIES - GARAGESERVICE -HARBOR CONTRACT SERVICES - 10/2023
SUPPLIES - ALL DEPARTMENTSSUPPLIES - GARAGE
FIRE -TRAINING
COPIER LEASE - PLANNINGSERVICESSERVICESCONTRACT SERVICES -PLANNINGSENIOR MEALS: 09/2023, 10/2023 CONTRACT SERVICES - 1ST HALF 11/2023CONTRACT SERVICES - 2ND HALF 11/2023SERVICE - HARBOR
PERMIT FEES -WASTEWATER TREATMENT PLANT
SERVICE - DEPOSITSUPPLIES - PUBLIC WORKS
VOID: MULTI STUB CHECK - SEE ATTACHED DETAIL
SEE ATTACHED DETAIL
CHECK
NUMBER
3701337074
3707S370763707737078
37079
31080
37081
3108231083
37084
3IDBS370853708137088
37089
37090
31091310923709337094
31095
37096
31097
31098
3709937100
37101
37102
37103
3710’
3710S37106371073710837109
37110
371LC37111
37112371133711437115
371163711737118371193711937120371213712237122
371233712437125371263712737128
DATE
ISSUED
11/13/202311/22/202311/22/202311/2 2/20 2 3
1 1/2 2/202 311/2 2/202 311/22/202 311/22/2023
11/22/202311/22/202311/ 22/202 3
11/22/2023
11/22/202311/22/202311/2 2/2 02 311/22/202313/22/20231 1/2 2/2 023 11/22/2023
1 1/2 2/202 311/2 2/202 311/22/2023
11/22/202311/22/202311/22/2023
11/22/2D23
11/22/202311/22/2023
1 1/2 2/20 23
11/22/2023
11/22/202311/22/2023
1 1/2 2/2023
11/22/202311/2 2/202 311/2 2/202 3
1 L/22/20231 1/2 2/202 3
L1/22/2023
11/22/202311/22/202311/22/202311/22/20231 1/2 2/202 3
11/22/2023
1 1/2 2/20 23
11/2 2/20 2311/2 2/202 311/2 2/202 3
11/22/202311/22/20231 1/2 2/202311/22/202311/22/202311/22/202311/22/202311/22/202311/2 1/20 2311/2 2/20 23
CITY OF AVALON
WARRANT DISBURSEMENTS
December 12, 2023
CHECK DATE
NUMBER ISSUED AMOUNT NAME DESCRIPTION
37129 11/22/2023 $2,221.55 VERIZON WIRELESS COMMUNICATIONS -ALL DEPARTMENTS37130 11/22/2023 $5,771.85 WESTRIDGE ENVIRONMENTAL GROUP SUPPLIES - WASTEWATER TREATMENT PLANT37131 11/22/2023 $10,000.00 ZILO INTERNATIONAL GROUP, LLC SERVICE -ADMINISTRATION $719,170.84
CITY OF AVALON
US BANK CREDIT CARD CHARGES PAID NOVEMBER 22, 2023
December 12, 2023
GONZALESGONZALES
GONZALESGONZALESGONZALESGONZALESGONZALES
GONZALESGONZALES
BAKERBAKERBAKERBAKERBAKERBAKERBAKERDEVIN HART
DEVIN HARTDEVIN HARTMO RONE SMAISTROSMAISTROSMAISTROSFRANCISFRANCISFRANCISFRANCISFRANCISFRANCISMEFFERT
ALEGRIAA LEG R IAALEGRIAALEGRIAALEGRIAALEGRIAALEGRIAALEGRIAALEGRIAALEGRIAALEGRIAALEGRIA
ALEGRIAALEGRIA
ALEGRIA
ALEGRIA
CAR STA R P H E NCAR STA R P H C NCAR STA R P HE NCAR STA R P H E NCAR STA R P H E NCAR STA R P H E NCAR STA R P H E NCAR STA R P H E NCAR STA R P H E NCAR STA R P H E NCAR STA R P H E NCAR STA R P H E N 10/3 1/2 023
11/1/202 311/ 1/20 2 311/ 1/20 2 311/2/20 2311/2/202311/6/2 02 311/6/202 3 11/10/20 2310/ 18/2 0 2 3
10/2 5/2 0 2 310/2 5/2 02 310/30/202 310/3 0/202 310/3 0/202 3 11/6/202311/2/202311/2/202311/3/2023
10/2 5/202 3
10/30/202310/30/20 23
11/6/2 02 3
10/24/202 310/24/202 310/2 7/2 0 2 3
10/2 7/20 2 310/30/2023
11/2/202 3
10/2 3/2 02 310/18/202 310/20/202 310/2 0/202 310/2 0/202 310/2 0/202 310/2 3/202 310/30/2023 11/2/202 311/2/2 02 311/3/2 02 311/3/2 02 311/8/202 3
11/1 3/2 023
11/13/202311/1 3/2 02 311/1 5/202 310/2 6/202 310/2 7/2 02 310/2 7/202 310/30/202 3 11/2/202311/2/202311/6/20 2311/6/202311/8/2 02 3
11/13/20 23
11/13/2023
11/13/202 3
$41.50
$55.50$45.87$11.70$39.48$24.55$42.50
$1,047.86
$84.00$43.32$50.00$50.00
$515.00
$S0.00
$308.88$363.94
$82.96$35.00$29.09
$180.00
$6,600.00
$369.58$927.20$100.00$100.00
$85.00
$14.35
$120.00
$15.00$27.95
$109.75$144.48$144.48$144.48$144.48$141.06$135.65$228.28 $42.07
$4,700.00
$1,066.37
$570.00$457.48
$11.90
$14.20
$8.78
$238.39
$18.65$20.93
$3.99
$70.76
$827.47
$12.27
$708.71
$1,498.42
$(238.39)
$19.00 SENDHUB
$209.00 HOTELJUNE
DESCRIPTION
TRAINING AND TRAVELTRAINING AND TRAVEL - MEALTRAINING AND TRAVEL - MEALTRAINING AND TRAVEL- MEALTRAINING AND TRAVEL - MEALTRAINING AND TRAVELS MEALTRAINING AND TRAVEL
TRAINING AND TRAVEL-LODGING
TRAINING AND TRAVELOPERATION COSTS IT
MEMBERSHIPMEMBERSHIP
TRAINING AND TRAVEL
MEMBERSHIP
TRAINING AND TRAVEL-LODGINGOPERATION COSTS - ITOPERATION COSTS - ITOPERATION COSTS - ITOPERATION COSTS - ITTRAINING
UNIEORMS
OPERATION COSTS - IT
TRAINING AND TRAVEL-LODGING
MEMBERSHIPMEMBERSHIP
TRAINING - REGISTRATIONUNIFORM - NAME TAGOPERATION COSTS - IT
TRAINING AND TRAVEL -PARKINGSUPPLIES - CHAMBER EVENT
MEAL-HAND HELD RADIO INSTALLLODGING - RADIO INSTALLLODGING - RADIO INSTALLLODGING -RADIO INSTALLLODGING - RADIO INSTALL
SUPPLIES - CHAMBER EVENT
MEAL -
OFFICE SUPPLIESSUPPLIES - HALLOWEEN EVENT
TRAINING REGISTRATION
SUPPLIES - BATTERY CHARGERSUPPLIESSUPPLIES
TRAINING AND TRAVEL - MEALTRAINING AND TRAVEL - MEAL
MAINTENANCE OF PREMISES
TRAINING AND TRAVEL-LODGING
MAINTENANCE OF PREMISESMAINTENANCE -FUEL TANKIT - WEATHER APPLICATION
TRAINING AND TRAVEL-LODGINGTRAINING AND TRAVEL-LODGING
MAINTENANCE OF PREMISESBANK AND CREDIT CARD FEES
TRAINING AND TRAVEL-LODGINGTRAINING AND TRAVEL-LODGING
IT SUBSCRPTION
TRAINING AND TRAVEL - PARKING
DEPARTMENT
ADM I NISTRATION
ADMINISTRATIONADMINISTRATIONADMINISTRATIONADMINISTRATIONADMINISTRATIONADMINISTRATIONADMINISTRATIONADMINISTRATION
FINANCEFINANCEFINANCEFINANCEFINANCEFINANCEFINANCERECREATIONRECREATIONRECREATION
ADMINISTRATIONADMISTRATIONADMINISTRATIONADMINISTRATIONADMINISTRATIONADMINISTRATIONADMINISTRATIONADMINISTRATIONADMINISTRATIONADMINISTRATION FIRE
ADMISTRATION
FIREFIREFIREFIREFIREFIREFIREFIREFIREFIREFIREFIREFIREFIREEIREHARBORHARBORHARBORHARBORHARBORHARBORHARBORHARBORHARBORHARBORHARBORHARBOR
LAST NAME POST DATE AMT USD VENDOR
CATALINA EXPRESSSPROUTS FARMERS MARKET
RENAISSANCE HOTEL
STARBU C KS
RENAISSANCE HOTELSRENAISSANCE HOTELS
CATALINA EXPRESSRENAISSANCE HOTELS
CATALINA EXPRESSZOOMCSMFOCSMFOCSMFOCSMFO
DISNEYLAND RESORT
ZOOMCYBERLYNK NETWORK
SINCH MAILGUNVASTA CONFERENCE
CAPTUS PRESS
H AT LA U NC H
AMAZON
PUEBLO BONITO HOTEL
C A. C. E. 0.CA. C. E.OCA CONTRACT CITIES ASSOC.COLLER INDUSTRIES INC.
DUO SECURITYPASADENA CENTER PARKING
VONSTHE LOBSTER TRAP
HOTEL METROPOLEHOTEL METROPOLE
HOTEL METROPOLEHOTEL METROPOLE
VONSTHE LOBSTER TRAPSHIFT CALENDARS INC.VONSCLARION EVENTS
PERFORMANCE TRUCK REPAIR
COIN DEPOT
HARBOR FREIGHT
STARBUCKSCARL’S JRCHET’S HARDWARE
HOTEL JUNE
CHET’S HARDWARE
BILLINGS PAINT & HDWR
WE AT H E R F LO W
RESERVATIONS.COMRESE RVATIONS.COM
CHET’S HARDWARE
DATATEL COMMUNICATIONSHOTEL JUNEHOTEL JUNE
PaCe a of 2
CITY OF AVALON
US BANK CREDIT CARD CHARGES PAID NOVEMBER 22, 2023
December 12, 2023
LAST NAME POST DATE AMT USD VENDOR DESCRIPTION DEPARTMENTCAMPBELL 10/30/2023 $817.52 YETI SUPPLIES ADMINISTRATIONCAMPBELL 11/2/2023 $475.00 LIEBERT CASSIDY WHITMORE TRAINING ADMINISTRATION CAMPBELL 11/13/2023 $14.99 CANVA IT SUBSCRPTION ADMINISTRATIONSCHDMIDT 10/18/2023 5400.35 XTRATUF UNIFORMS HARBOR SCHDMIDT 10/19/2023 $92.40 XTRATUF UNIFORMS HARBORSCHDMIDT 11/7/2023 $60.00 CALIFORNIA CLETS USER TRAINING HARBORSCHDMIDT 11/8/2023 $29.67 CHET’S HARDWARE MAINTENANCE HARBOR SCHOMIDT 11/9/2023 $23500 CATALINA EXPRESS TRAVEL HARBOR SCHDMIDT 11/13/2023 $191.59 EXPEDIA TRAINING AND TRAVEL -LODGING HARBORSCHDMIDT 11/14/2023 $84.00 CATALINA EXPRESS TRAINING AND TRAVEL HARBOR $ 25,313,41 CHECK NUMBER 37128
CITY OF AVALON
WARRANT DISBURSEMENTS
December 12, 2023
CHECK DATE
NUMBER ISSUED AMOUNT NAME DESCRIPTION
248 11/28/2023 119,712.96 CATALINA ISLAND MEDICAL CENTER MEASURE H PAYMENT NUMBER 3 S 119,712.96
CITY OF AVALON CITY COUNCIL
MEETING DATE: December 12, 2023 AGENDA ITEM:
ORIGINATING DEP: Finance CITY MANAGER: PREPARED BY: Matthew Baker, Finance DirectorSUBJECT: Development Impact Fees Annual Report for the Fiscal Year Ended June 30, 2023
RECOMMENDED ACTION(S): Receive and file the Fiscal Year 2022-23 Development Impact Fees Annual Report.
REPORT SUMMARY: On February 18, 2020, City Council adopted the findings of the development impact fee nexus study and established certain development impact fees and capacity charges. Development impact fees (DIEs) are fees charged by a local governmentagency that developers and applicants pay for either all or a portion of the cost of providingpublic infrastructure and services to the new development. DIFs can also help streamline the development approval process as the typical impacts will have been identified and quantified in a per unit basis, in advance of any development proposal. Capacity charges are City imposedcharges on new development for existing and/or future wastewater capacity needed for new development.
Reporting requirements under California Government Code 66006 specify that the City must prepare annual reports of Development Impact Fees within 180 days of the close of the fiscal year. The fiscal year ended June 30, 2023 was the third year with fees paid subject to reporting requirements. The report describes the fees: the amount of the fees collected,interest earned, and identification of any expenditures from those funds. The FY 2022-23Development Impact Fee Annual Report is attached for City Council’s review and approval.
GOAL ALIGNMENT: Compliance with reporting requirementsFISCAL IMPACTS: There is no fiscal impact by the recommended action as this reports development impact fee activity for the fiscal year ended June 30, 2023.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: N/A
FOLLOW UP ACTION: N/A
ADVERTISING, NOTICE AND PUBLIC CONTACT: Pursuant to the Brown Act.
ATTACHMENTS: FY 2022-23 Development Impact Fees Annual Report City of Ava Ion
ANNUAL DEVELOPMENT IMPACT FEE REPORT
IFISCM YEAR ENDED JUNE 30, 2023
Legal Requirements for Development Impact Fee Reporting California Government Code Section 66006 (b)California Government Code Section 66006 (b) defines the specific reporting requirements for local agencies that impose AB 1600 DIFs on new development. Annually, for each separate fund established for the collection and expenditure of DIFs, the local agency shall, within 180 days ofthe close of the fiscal year, make available to the public the information shown below for the mostrecent fiscal year. a) A brief description of the type of fee in the account or fund.b) The amount of the fee. c) The beginning and ending balance of the account or fund.d) The amount of the fees collected and interest earned.e) An identification of each public improvement on which fees were expended and the amount of the expenditures on each improvement, including the total percentage of the cost of the public improvement that was funded with fees.
f) An identification of an approximate date by which the construction of the public improvement will commence if the local agency determines that sufficient hinds have been collected to complete financing on an incomplete public improvement, as identified inparagraph (2) of subdivision (a) of Section 66001, and the public improvement remains incomplete.
g) A description of each inter-fund transfer or loan made from the account or fund, including the public improvement on which the transferred or loaned fees will be expended, and, in the case of an inter-hind loan, the date on which the loan will be repaid, and the rate ofinterest that the account or fund will receive on the loan. h) The amount of refunds made pursuant to subdivision (e) of Section 66001 and any allocations pursuant to subdivision (1) of Section 66001.
California Govermnent Code Section 66001 (d)
For all funds established for the collection and expenditure of DIFs. California Government Code Section 66001 (d) has additional requirements. For the fifth fiscal year following the first deposit into the fund and every five years thereafter, the local agency shall make all of the followingfindings with respect to that portion of the fund remaining unexpended, whether committed or u nco in ni it ted:
a) Identify the purpose to which the fee is to be put.b) Demonstrate a reasonable reLationship between the fee and purpose for which it is charged.c) Identify all sources and amounts of funding anticipated to complete financing in incomplete improvements identified in paragraph (2) of subdivision (a).
1. d) Designate the approximate dates on which the funding referred to in subparagraph (c) is expected to be deposited into the appropriate account or fund.
California Government Code Section 66002
The State of California Government Code Section 66002 states that:
a) Any local agency, which levies a fee subject to Section 66001, may adopt a capital improvement plan, which shall indicate the approximate location, size, time of availability,and estimates of cost for all facilities or improvements to be financed with the fees. h) The capital improvement plan shall be adopted by, and shall he annually updated by, a resolution of the governing body of the local agency adopted at a noticed public hearing.Notice of the hearing shall be given pursuant to Section 65090. In addition, mailed noticeshall be given to any city or county. which may be significantly affected by the capital improvement plan. This notice shalL be given no later than the date the local agency notices the public hearing pursuant to Section 65090. The information in the notice shall be not less than the infonnation contained in the notice of public hearing and shall be given byfirst-class mail or personaL delivery. c) ‘Facility” or “improvement.” as used in this section. means any of the following:
I) Public buildings, including schools and related facilities; provided that school facilities shall not be included if Senate Bill 97 of the 1987-88 Regular Session is enacted and becomes effective on or before January 1, 1988. 2) Facilities for the storage. treatment. and distribution of nonagricultural water. 3) Facilities for the collection, treatment. reclamation, and disposal of sewage. 4) Facilities for the collection and disposal of storm waters and for flood control purposes.
5) Facilities for the generation of electricity and the distribution of gas and electricity.6) Transportation and transit facilities, including but not limited to streets and supporting improvements, roads. overpasses, bridges, harbors, ports, airports, andrelated facilities. 7) Parks and recreation facilities.
8) Any other capital project identified in the capital facilities plan adopted pursuant to Section 66002.
2 Fire Protection (Fund 301)
Description of Development Impact Fees (DIP)The fire protection impact fee revenues may be used to purchase land for expansions to the fire station and/or to construct new facilities, upgrade existing facilities, purchase vehicles andpersonal protection equipment and other equipment with a minimum five-year life span, enhancethe utiLity of existing systems, and/or perfonn refurbishment within the parameters allowed byGovernment Code Section 66000.
Fee Amount
Land Use Type Fire Protection Fee
Rcsidcntial (per square fiot, S3.56
r\oinesidential (per squarefool oi as izoled)
Lodging (per room) 52588.04Retail/Commercial Si 28
Office/Professional Serviccs S 137Industrial 50.68Medical Clinics Si .02 Leisure/Hospitality Services 50.85
Public/Institutional Si 02
Transportation/Warehouse/Utilities SOS I
Statement of Revenues, Expenditures and Changes in Fund Balance for the Fiscal Year Ended June 30, 2023
Revenues FY 22/23Fees $8,910.68Investment Earnings 409.60 Other 0.00
Total Revenues $9,320.28
ExpendituresExpenditures 0.00Other 0.00
Transfers in (out) 0.00Total Expenditures $0.00Rev Over (Under) Exp 59.32028 Beginning Fund Balance 13,477.80Ending Fund Balance $22,798.08 Fee Report
3 California Government Code Section 66006 (b) requires an identification of each public improvement on which fees were expended and the amount of expenditures on each improvement. including the percentage of the costs of the public improvement that was funded with fees. Noimprovements were funded with Fire Protection DIF during the fiscal year. flCapital Project DIF Project o/ Funded by
Expenditures Expenditures DIE
LNU active projects funded by DIF N/A i‘A N/A
Section 66001 requires that, for the fifth fiscal year following the first deposit of any impact feerevenue into an account or fund as required by Section 66006, and every five years thereafter, theCity must make all ofthe following findings for any fee revenues that remain unexpended, whether committed or uncommitted:
I. Identify the purpose to which the fee will be put.
2. Demonstrate the reasonable relationship between the fee and the purpose for which it is charged.
3. Identify all sources and amounts of funding anticipated to complete financing of incomplete improvements for which the impact fees are to be used.
4. Designate the approximate dates on which the funding necessary to complete financing of those improvements will be deposited in to the appropriate account of fund.
Expenditures
Expendit tiresOther
0.000.00
0.00 0.000.00
0.00 0.000.00
0.00 Revenues FY 20/21 FY 2 1/22 FY 22/23 FY 23/24 FY 24/25Fees 10,690.68 $2,719.84 £8,910.68Investment Earnings 34.42 32.86 409.60 Olher 0.00 0.00 0.00
Total Revenues $10,725.10 $2,752.70 $9,320.28
Rev Over (Under) Exp 10,725.10 £2,752.70 $9,320.28
Beginning Fund Balance 0.00 10,725.10 13,477.80
Ending Fund Balance $10,725.10 $13,477.80 $22,798.08
Transfers in (out)
Total Expenditures s0.00 $0.00 $0.00
Fire Protection Fund 301 reports no funds being held past the fifth fiscal year following the firstdeposit. Sufficient funds from the Fire Protection DIF have not been collected to complele the financing on an incomplete public improvement. No inter-fund transfers or loans were made during the reporting period. No refunds were issued due to protests during this reporting period. 4 Circulation (Fund 302)
Description of Development Impact Fees (DIF)
The circulation fee is intended to contribute to the ftinds needed to improve mobility, access and safe travel to and from homes, businesses and activities for all users of the circulation system, including bicyclists and pedestrians as vell as motor vehicles. The circulation and mobility improvements will be designed with the goal of also providing benefits related to parking by reducing the overall demand for motor vehicle parking spaces.
Fee AmountFee Report
Land Use Type Circulation Fee
Residential (per square fool) SI 32
Vonresjclenjia/ (per square fool at as no/cc!)
Lodging (per room) $923.13
Retail/Commercial $1.69
Office/Professional Services $052
Industrial $035
Medical Clinics $0.90Leisure/Hospitality Services $066Public/Institutional $0.2 Transportation/Warehouse/Utilities $0.69
Statement of Revenues. Expenditures and Changes in Fund Balance for the Fiscal Year Ended June 30, 2023
Expenditures
Expenditures
Other
0.00 0.00
0.00 Revenues FY 22/23Fees $3,527.51Investment Earnings 154.62 Other 0.00Total Revenues $3,682.13
Rev Over (Under) Exp . S3,682. 13Beginning Fund Bailance 5,007.09Ending Fund Balance $8,689.22 Transfers in (out)Total Expenditures $0.00
S
California Government Code Section 66006 (b) requires an identification of each public improvement on which fees were expended and the amount of expenditures on each improvement, including the percentage of the costs of the public improvement that was ftmded with fees. No improvements were funded with Circulation DIF during the fiscal year.
Capital Project DIF Project % Funded by
Expenditures Expenditures D1F
No active projecis funded by DIF N/A N/A N/A
Section 66001 requires that, for the fifth fiscal year following the first deposit of any impact fee revenue into an account or fund as required by Section 66006. and every five years thereafter, the City must make all of the following findings for any fee revenues that remain unexpended, whethercommitted or uncommitted:
I. Identify the purpose to which the fee will be put.
2. Demonstrate the reasonable relationship between the fee and the purpose for which it is charged.
3. Identify all sources and amounts of funding anticipated to complete financing of incomplete improvements for which the impact fees are to be used.
4. Designate the approximate dates on which the funding necessary to complete financing of those improvements will be deposited in to the appropriate account of fund.
Revenues FY 20/21 Fl’ 21/22 FY 22/23 FY 23/24 Fl 24/25Fees 3.96396 51,008.48 S3,527.51Invcstrnent Earnings 12.76 21.89 154.62Other 0.00 0.00 000 Total Revenues 53,976.72 S1,030.37 $3,682.13
ExpendituresExpenditures 0.00 0.00 0.00Other 0.00 0,00 0.00 Transfers in (001) 0.00 0.00 0.00Total Expenditures S0.00 50.00 $0.00 Rev Over (Under) Exp 3,976.72 $1030.37 $3,682. [3Beginning Fund BaLance 0.00 3,976.72 5,007.09 Ending Fund Balance $3,976.72 $5,007.09 $8,689.22
Circulation Fund 302 reports no funds being held past the fifth fiscal year following the firstdeposit. Sufficient hinds from the Circulation DIF have not been collected to complete the financing on an incomplete public improvement. No inter-fund transfers or loans were made during the reporting period. No refunds were issued due to protests during this reporting period. 6 Transportation (Fund 303)
Description of Development Impact Fees (DIF)
The transportation improvements provide for expanded wharf, pier, docking, and moorage facilities to accommodate the increase in passengers on cruise ships and cross channel ferries that will attend new development. Transportation improvements may also include freight handling facilities and airport improvements. The public use facilities fee revenues may be used to purchase land, to construct, upgrade. and expand facilities, and/or to perfonn refurbishment within the parameters allowed by Government Code Section 66000.
Fee Amount
Land Use Type Transportation FeeResidenüal (per square Joan $263 /onresidenual (per square Jot a, as noted)
Lodging (per room) $1,886.59
Retail/Commercial $0.94
Office/Professional Services $1.01
Industrial $0.50
Medical Clinics $075Leisure/Hospitality Services $0.63Public/Institutional $0.75 Transportationfwarchousc/Utilities $0.38
Fee Report
Statement of Revenues, Expenditures and Changes in Fund Balance for the Fiscal Year Ended June 30, 2023
ExpendituresExpenditures
Other
0.000.000.00
Revenues FY 22/23Fees $6,359.34Investment Earnings 300.42 Other 0.00Total Revenues $6,659.76
Rev Over (Under) Exp 56.65976Beginning Fund Balance 9.97625 Ending Fund Balance $16,636.01
Transfers in (out)
Total Expenditures s0.00
7 California Government Code Section 66006 (h) requires an identification of each public improvement on which fees were expended and the amount of expenditures on each improvement, including the percentage of the costs of the public improvement that was funded with fees. No improvements were funded with Transportation DIF during the fiscal year.
Section 66001 requires that, for the fifth fiscal year following the first deposit of any impact fee revenue into an account or fund as required by Section 66006, and every five years thereafter, theCity must make all ofthe following findings for any fee revenues that remain unexpended, whether committed or uncommitted:
I. Identify the purpose to which the fee will be put.
2. Demonstrate the reasonable relationship between the fee and the purpose for which it is charged.
3. Identify all sources and amounts of funding anticipated to complete financing of incomplete improvements for which the impact fees are to be used.
4. Designate the approximate dates on which the funding necessary to complete financing of those improvements will be deposited in to the appropriate account of fund.
ExpendituresExpenditures
Other
Transfers in (out)Total Expenditures
0.000.00
0.00 0.000.00
0.00 0.000.00
Revenues FY 20/21 FY 21/22 FY 22/23 FY 23/24 FY 24/25Fees 7,898.89 52,009.32 $6,359.34 Investmcnt Earnings 25.43 43.62 300.42
Other 0.00 0.00 0.00Total Revenues $7,923.31 $2,052.94 $6,659.76 Rev Over (Under) Exp 7,923.31 52,052.94 56,659.76
Bcginning Fund Balance 0.00 7,923.31 9,976.25
Ending Fund Balance $7,923.31 $9,976.25 $16,636.01
$0.00 50.00
0.00 50.00
Transportation Fund 303 reports no funds being held past the fifth fiscal year following the first deposit. Sufficient funds from the Transportation DIF have not been collected to complete the financing on an incomplete public improvement. No inter-fund transfers or loans were made during the reporting period. No reftinds were issued due to protests during this reporting period.
Capital Project DlF Project
Expenditures Expenditures
No activc projects funded by DIF N/A S/A
% Funded by
DIFN/A
8 Landfill (Fund 304)
Description of Development Impact Fees (DIE)Landfill fund impact fee revenues may be used for the landfill closure-post closure and correctiveaction costs, constnicting a new solid waste transfer station and recycling center, and funding thecapital costs of enhanced recycling programs. The fair-share capital costs of alternatives to landfill disposal may also be funded by the fee revenues.Fee Amount Fee Report
Land Use Type Landfill Fee
Residential (pci square foot,) $2.88
Aotnesidentia/ (per square foot or cis noted)
Lodging (per room) 52,067.07Retail/Commercial SI .03
Office/Professional Services 51.10
Industrial $0.55Medical Clinics $0.83Leisure/Hospitality Services 50.69Public/Institutional 50.83 Transportation/Warehouse!Utilities 50.41
Statement of Revenues. Expenditures and Changes in Fund Balance for the Fiscal Year Ended June 30, 2023
Expenditures
Expenditures
Other
0.00 0.000.00
Revenues FY 22/23Fees 57,208.64Investment Earnings 331.78 Other 0.00
[ Total Revenues $7,540.42
Rev Over (Under) Exp $7,540.42Beginning Fund Balance 10,924.59Ending Fund Balance $18,465.01 Transfers in (out)Total Expenditures $0.00
9 California Government Code Section 66006 (b) requires an identification of each public improvement on which fees were expended and the amount of expenditures on each improvement,including the percentage of the costs of the public improvement that was funded with fees. Noimprovements were funded with Landfill DIF during the fiscal year.
Capital Project DIF Project % Funded by
L Expenditures Expenditures DIF
LNo active projects funded by DIP N/A N’A N/A
Section 66001 requires that, for the fifth fiscal year following the first deposit of any impact fee revenue into an account or fund as required by Section 66006, and every five years thereafter, the City must make all ofthe following findings for any fee revenues that remain unexpended, whethercommitted or uncommitted:
I. Identify the purpose to which the fee will be put.
2. Demonstrate the reasonable relationship between the fee and the purpose For which it is charged.
3. Identify all sources and amounts of funding anticipated to complete financing of incomplete improvements for which the impact fees are to be used.
4. Designate the approximate dates on which the funding necessary to complete financing of those improvements will be deposited in to the appropriate account of hand.
Expenditures
Expenditures
Dlher
0.000.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 Revenues FY 20/21 FY 21/22 FY 22/23 FY 23/24 FY 24/25Fees 8,648.64 52,200.32 57,208.64Investment Earnings 27.85 47.78 331.78 Other 0.00 0.00 0.00Total Revenues $8,676.49 $2,248.10 $7,540.42 Rev Over (Under) Exp 58,676.49 52,248.10 57.54042Beginning Fund Balance 0.00 8,676.49 10.92459 Ending Fund Balance $8,676.49 $10,924.59 $18,465.01
Transfers in (out)Total Expenditures $0.00 $0.00 $0.00
Landfill Fund 304 reports no funds being held past the fifth fiscal year following the first deposit.
Sufficient funds from the Landfill DIF have not been collected to complete the financing on anincomplete public improvement. No inter-fund transfers or loans were made during the reportingperiod. No refunds were issued due to protests during this reporting period. 10 Wastewater (Fund 305)
Description of Capacity Charges
Wastewater capacity charge revenues may be used for any of the improvements listed in Table 8.3 of’ the Development Impact AIutigciiioi Fees Nexus Studi’ and Capacity Charges/or Uastelvater and Reclaimed Water Report adopted by City Council on February 18, 2020 or for capacity expansion. or sanitary sewer service extension projects. Portions ofthe revenues may also be used for waste water treatment plant (WWTP) capital replacements or system rehabilitation, and/or be placed in the sewer system capital reserve account to be used to offset future rate increases.Charge Amount Land Use Type Wastewater ChargeResidential ‘pei square faa/I $5.41 Aonresidential (per square foot or as noted)
Lodging (per room) S2,92t.39
Retail/Commercial $2.43
Office/Professional Services $4.87
Industrial $4.87Medical Clinics $7.25
Leisure/Hospitality Services $2.92Public/Institutionat $4.06 Transportation/Warehouse/Utilities $0.60
Charge Report
Statement of Revenues, Expenditures and Changes in Fund Balance for the Fiscal Year Ended June 30, 2023
Revenues FY 22/23Fees $0.00Investment Earnings 234.83
Other 1 0.00Total Revenues [ $234.83
ExpendituresExpenditures
OtherTransfers in (out)Total Expenditures
0.00 0.00
0.00 $0.00
Rev Over (Under) Exp $234.83
L
Beginning Fund Balance 10,284.47Ending Fund Balance $10,519.30 11 California Govermrieni Code Section 66006 (b) requires an identification of each public improvement on which fees were expended and the amount of expenditures on each improvement,including the percentage of the costs of the public improvement that was funded with fees. No improvements were funded with Wastewater Capacity Charges during the fiscal year.
Capital Project DIF Project % Funded by
Expenditures Expenditures DIF
No aclive projects funded by DIF N/A N/A N/A
Section 66001 requires that, for the fifth fiscal year following the first deposit of any impact fee revenue into an account or fttnd as required by Section 66006, and every five years thereafter, the City must make all ofthe following findings for any fee revenues that remain unexpended, whethercommitted or unconunitted:
1. Identify the purpose to which the fee will be put.
2. Demonstrate the reasonable relationship between the fee and the purpose for which it is charged.
3. Identify all sources and amounts of finding anticipated to complete financing of’ incomplete ttnproveinents for which the impact fees are to be used.
4. Designate the approximate dates on which the finding necessary to complete financing of those improvements will be deposited in to the appropriate account of find.
Revenues Fl’ 20/2 1 FY 21/22 Fl’ 22/23 FY 23/24 FY 24/25 Fees 6,091.66 S4.133.24 S0.00
Investment Earnings 19.61 39.96 234.83
Other 0.00 0.00 0.00Total Revenues $6,111.27 $4,173.20 $234.83 ExpendituresExpenditures 0.00 0.00 0.00
Other 0.00 0.00 0.00Transfers in (out) 0.00 0.00 0.00Total Expenditures S0.00 $0.00 S0.00 Rev Over (Under) Exp $6,111.27 $4, 173.20 $234.83Beginning Fund Balance 0.00 6,1 11.27 10,284.47 Ending Fund Balance $6,111.27 $L0,284.47 $10,519.30
Wastewater Fund 305 reports no funds being held past the fifth fiscal year following the first deposit. Sufficient finds from the Wastewater Capacity Charges have not been collected tocomplete the financing on an incomplete public improvement. No inter-fund transfers or loanswere made during the reporting period. No refunds were issued due to protests during this reportingperiod. 12 CITY OF AVALON CITY COUNCIL ACTING AS
THE HOUSING AUTHORITY OF THE CITY OF AVALON
MEETING DATE: December 12, 2023 AGENDA ITEM: LI
ORIGINATING DEP: Housing Authority CITY MANAGER: Ot.t
PREPARED BY: Matthew Baker, Finance Director
SUBJECT: Housing Successor Agency Annual Report for Fiscal Year 2022-23 RECOMMENDED ACTION: Adopt a resolution approving a Housing Authority Successor Agency Annual Report for Fiscal Year 2022-23.
REPORT SUMMARY:Housing Successor Agency Annual ReportHealth and Safety Code Section 34176.1 (enacted by Senate Bill 341 and Assembly Bill 1793) requires successor housing entities to prepare an annual report documenting compliance with expenditure proportionality and other requirements pertaining to the housing asset fund. The report is due to the California Department of Housing and Community Development byDecember 31, 2023.
The Annual Report includes the following information required by law:
• Amounts deposited into the Housing Asset Fund;• Statement of the balance of the Housing Asset Fund;• Description of expenditures by category;• Statutory value of real property; • Description of transfers from the former Avalon Community Improvement Agency;• Description of projects that receive funding through the Successor Agency’s Recognized Obligation Payment Schedule;
Status of property disposition efforts;Update on inclusionary and replacement housing obligations;Compliance with five-year expenditure obligations;Percentage of senior deed-restricted units; Amount of excess surplus; andAn inventory of homeownership units with affordability restrictions.
Low and Moderate Income Housing Asset Fund
The Housing Asset Fund includes all of the assets that were transferred from the Avalon Community Improvement Agency (“AdA”) to the Housing Authority upon dissolution of the ACIA. The assets include:
• Real properties,• Affordable housing covenants,• Loan receivables,
• Income from ground leases and rental properties, and
• Supplemental Educational Revenue Augmentation Fund Loan.
A total of $11013 was deposited into the Housing Asset Fund during the fiscal year. At the close of Fiscal Year 2022-23, the ending asset balance in the Housing Asset Fund was$5,541,154. Land held for resale and cash constitute most this amount. The Housing Asset Fund had a cash balance of approximately $1 ,592244 at the close of the fiscal year.
There were no expenditures from the Housing Asset Fund in Fiscal Year 2022-23. The statutory value of the properties and loans transferred to the Housing Authority totals$4,371,426.Property and Project Descriptions The ACIA transferred seven real properties to the Housing Authority that were approved by DOF in 2012. The Housing Authority sold two of the properties in FY 2013-14, with the following five properties remaining:
• 309 Beacon Street• 313 Beacon Street• 238 Descanso Avenue• 311 DescansoAvenue• 206 E. Whittley Avenue All of the properties with the exception of 206 E. Whittley Avenue have been developed for affordable housing purposes and are in compliance with property disposition requirements. A multi-family property at 206 E. Whittley Avenue was purchased by the ACIA in 2008 with theintent to develop new affordable housing units. However, the ACIA was unable to pursue development due to the dissolution of redevelopment. In July 2019, the City Council acting as Housing Authority approved the final construction plans and authorized staff to develop andrelease the request for proposals to rehabilitate the property to be rented to low and moderateincome residents and in October 2019, authorized City Staff to move forward in developing a preliminary site plan and feasibility study for the development of five units, through thereplacement of one unit and addition of four new units. The Authority undertook site workactivity in FY 2022-23, and construction is anticipated to commence in the upcoming fiscal year.
Outstanding lncIusionay and Replacement Housing Obligations The former ACIA had a 52-unit surplus of affordable housing units as of February 1, 2012.Therefore, there are no outstanding affordable unit production obligations to fulfill.
Income & Age Proportionality
If housing successors expend money on projects, SB 341 requires at least 30 percent to be spent on extremely law-income rental housing, among other restrictions. The Housing Authority has only expended funds on administrative costs since becoming the housing successor. As such, the Housing Authority is in compliance with expenditure proportionality requirements.
SB 341 also sets a limit on the portion of publicly assisted deed-restricted rental housing that may be restricted to seniors. There have been no deed-restricted rental units assisted by the Housing Authority or City in the past 10 years, therefore the Housing Authority is in compliance with this requirement.Excess Surplus
SB 341 reinstated a requirement to prevent housing successors from accumulating an excess surplus, which is generally defined as unencumbered cash that exceeds the greater of $1 million or the aggregate amount deposited into the Housing Asset Fund in the preceding four years. Since the housing successor did not exist until 2012, the first year this calculation can be performed is Fiscal Year 2016-17. The Housing Authority previously accumulated an excess surplus in FY 2019-20, 2020-21, and 2021-22 totaling $517,338. The Housing Authorityencumbered the excess surplus to the 206 E. Whittley Avenue housing development within three fiscal years, as required, and did not have an excess surplus in FY 2022-23.
Homeownership UnIt Inventory
The Housing Authority oversees five homeownership units with affordability restrictions. Allunits are moderate-income households assisted through the First-Time Homebuyer Program.
ENVIRONMENTAL REVIEW: The action taken by the Housing Authority to approve theHousing Successor Agency Annual Report does not commit the Housing Authority to any actions that may have a significant effect on the environment. As a result, such actions do notconstitute projects subject to the requirements of the California Environmental Quality Act.
FISCAL IMPACT: The Housing Successor Agency Annual Report provides information onFiscal Year 2022-23 activities and does not have any fiscal impact.
ATTACHMENT:
A. Housing Authority Resolution Approving a Housing Successor Agency Annual Report for Fiscal Year 2022-23
B. Housing Successor Annual Report for the Fiscal Year 2022-23
HOUSING AUTHORITY RESOLUTION NO.
A RESOLUTION OF THE HOUSING AUTHORITY OF THE CITY OF AVALON
APPROVING A HOUSING SUCESSOR AGENCY ANNUAL REPORT FOR
FISCAL YEAR 2022-23
WHEREAS, City records reveal that the City adopted a resolution on or about February 2 1983 creating the Housing Authority of the City of Avalon (Housing Authority”), however it is unclear whether the Housing Authority continued to remain active; and WHEREAS, the City Council adopted Resolution No. 12-02 on January 30, 2012 declaring the need for the Housing Authority and reauthorizing it to transact business and exercise powers; and
WHEREAS, pursuant to Health and Safety Code section 34176, the City of Avalon (“City”), as the entity that authorized the creation of the dissolved Avalon CommunityImprovement Agency (“Agency”), elected not to retain the housing assets and functions previously performed by the Agency, and instead elected to transfer all rights, powers, assets,liabilities, duties and obligations associated with the housing activities of the Agency, excluding any amounts on deposit in the Low and Moderate Income Housing Fund, to the Housing Authority, as provided in Resolution No. 12-01 adopted on January 30, 2012; and WHEREAS, Section 34176.1 of the Health and Safety Code (H&SC) requires housing authorities to prepare an annual report describing its activities in the Low and Moderate Income Housing Asset Fund (“Housing Asset Fund”) for the preceding fiscal year and submit it to theCalifornia Department of Housing and Community Development (“HCD”) by December 31st of each year; and
WHEREAS, Housing Authority staff has prepared a Housing Successor Agency Annual Report for Fiscal Year 2022-23 (“Report”), attached hereto as Exhibit “A”; and WHEREAS, the Housing Authority desires to approve the Report and transmit it to HCD and post on its website.
NOW, THEREFORE, THE HOUSING AUTHORITY OF THE CITY OF AVALON DOES HEREBY RESOLVE AS FOLLOWS:
Section 1. Recitals. The Recitals set forth above are true and correct and incorporated herein by reference.
Section 2. Approval of Housing Successor Agency Annual Report. The Housing Authority of the City of Avalon hereby approves the Housing Successor Agency Annual Report for Fiscal Year 2022-23, attached hereto as Exhibit “A,” as required by the H&SC.
Section 3. Transmittal to Appropriate Agencies. The City Manager is hereby authorized and directed to transmit, by mail or electronic means, a copy of the Housing Successor Agency Annual Report to the California Department of Housing and Community Development, file a copy with the City Clerk, and post on the Housing Authority website.
Section 4. Technical Revisions. The City Manager is hereby authorized and directed to use his discretion to make any necessary technical revisions to the Housing Successor Agency Annual Report prior to submittal to the appropriate reviewing bodies.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the Housing Authority of the City of Avalon, on the 12th day of December, 2023, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
Ann H. Marshall, Chair
ATTEST:
Gabrielle Morones, Secretary
EXHIBIT A
HOUSING AUTHORITY OF THE CITY OF AVALON
HOUSING SUCCESSOR AGENCY ANNUAL REPORT
FISCAL YEAR 2022-23
HOUSING SUCCESSOR ANNUAL REPORT
Avalon Housing Authority
Fiscal Year 2022-23
TABLE OF CONTENTS
INTRODUCTION 1HOUSING SUCCESSOR REQUIREMENTS 1
ASSETS TRANSFERRED TO HOUSING SUCCESSOR 2
HOUSING ASSET FUND ACTIVITY 3
EXPENDITURE LIMIT COMPLIANCE 4SENIOR HOUSING LIMIT COMPLIANCE 5DEPOSITS AND FUND BALANCE 5 EXCESSSURPLUS 6
TRANSFERS TO OTHER HOUSING SUCCESSORS 8
HOUSING SUCCESSOR PORTFOLIO 9PROPERTY DESCRIPTIONS AND DISPOSITION STATUS 9 LOANS RECEIVABLE AND DEFERRALS 11
AFFORDABILITY AGREEMENTS 11
HOMEOWNERSHIP UNIT INVENTORY 14
APPENDIX 1 - HOUSING SUCCESSOR ANNUAL REPORT REQUIREMENTS 15APPENDIX 2— HOUSING ASSET TRANSFER FORM 16APPENDIX 3— HOUSING ASSET FUND EXPENDITURE REQUIREMENTS 17
INTRODUCTION
The Avaton Housing Authority (Housing Authority’) is the Housing Successor Agency to the former Avalon Community Improvement Agency (“ACIA”). The Rousing Authority is responsible for maintaining housing assets transferred from the former AdA, and its main goal is to provide affordable housing for Avalon residents.
This Housing Successor Agency Annual Report (Annual Report”) contains information on Fiscal Year (“FY”) 2022-23 finances and activities as required by Health and Safety Code (‘HSC”) Section 34176.1 (f).
This Annual Report details how the Housing Authority met all requirements for expenditures by income level since the beginning of the second five-year compliance period, which runs from July 1, 2019 through June 30. 2024.
The Annual Report is due to the California Department of Housing and Community Development (“HCD”) by December 31 annually and must be accompanied by an independent financial audit. The Housing Authority’s audited financial statements will be posted on the City of Avalon’s (“City”) website when available.1 This report is an addendum to the Housing Authority Annual Report required by HSC Section 34328, which is submitted to HCD by October V annually.
HOUSING SUCCESSOR REQUIREMENTS -—
In the 2013-14 Legislative Session, Senate Bill (“SB”) 341 and subsequent legislation enacted severalrequirements for housing successor agencies. Housing successors must comply with three majorrequirements pursuant to HSC Section 34176.1:
1. Expenditures and housing production are subject to income and age targets.
2. Housing successors may not accumulate an “excess surplus,” or a high balance based on certain thresholds discussed later in this report.
1 This report was prepared based on unaudited financial statements that may differ from the final audited financial statements due to year-end accounting.
Avalon Housing Successor Annual Report 2022-23 1
3. Properties must be developed with affordable housing within five to ten years of being approved for transfer from the former redevelopment agency to the housing successor.
The requirements are designed to ensure that housing successors are actively utilizing former ACIA housing assets to produce affordable housing. Appendix 1 provides a detailed summary of the reportingrequirements that are addressed in this Annual Report.
ASSETS TRANSFERRED TO HOUSING SUCCESSOR
Upon the statewide dissolution of redevelopment in 2012, all rights, powers, committed assets, liabilities, duties, and obligations associated with the housing activities of the ACIA were transferred to the Housing Authority. The Housing Authority prepared a Housing Asset Transfer Form (HAT’) that provided an inventory of all housing assets transferred from the ACIA to the Housing Authority. This included:
1. Real properties,
2. Affordable housing covenants,3. Loan receivables,
4. Income from ground leases and rental properties, and
5. Supplemental Educational Revenue Augmentation Fund (“SERAF”) Loan.
All items on HAT were approved by the California Department of Finance (‘DOF”) on August 30, 2012.
DOF later asked the Successor Agency to revise the form, and the revised HAT was approved by DOF on December 15, 2014. A copy of the revised HAT is provided as Appendix 2.
It is important to distinguish that Housing Authority assets that were not transferred from the former AdA. nor generated by, nor purchased with, assets from the former ACIA, are not subject to HSC Section34176.1.
Avalon Housing Successor Annual Report 2022-23 2
HOUSING ASSET FUND ACTIVITY
Former ACIA assets, and the revenues generated by those assets, are maintained in a Low and ModerateIncome Housing Asset Fund (‘Housing Asset Fund”).2 Housing Asset Funds may be spent on:
• Administrative costs for operation of the housing successor agency. The law allows a housing successor to spend the greater of:
o $200,000 per year adjusted for inflation, or
o 5% of the statutory value of real property owned by that housing successor and the value of loans and grants receivable from the HAT (“Portfolio”).
According to HCD, the $200,000 hmit adjusted for inflation is $254,500 for FY 2022-23. The Housing Successor will comply with the FY 2022-23 limit since administrative expenses werebelow $254,500. • Homeless prevention and rapid rehousing services up to $250,000 per year if the formerAClA did not have any outstanding housing inclusionary or replacement housing production requirements. The former ACIA had a surplus of affordable housing production units, and therefore the Housing Authority as Housing Successor can make this expenditure if it chooses and funding is available for such expenditures.
• Affordable housing development assisting households up to 80 percent of the Area Median Income (‘AMI”), subject to specific income and age targets.
Five-Year Income Proportionality; If any Housing Asset Funds are spent on affordablehousing development, it triggers a requirement to spend at least 30 percent of such expensesassisting extremely low-income households (30% AMI). and no more than 20 percent on low2 Fund 153. The Housing Asset Fund replaced the former ACIA’s Low and Moderate Income Housing Fund.
Avalon Housing Successor Annual Report 2022-23 3
income households (between 60-80% AMI) per five-year compliance period. The current fiveyear compliance period runs from July 1, 2019 through June 30, 2024.
It is important to note that housing successors must report expenditures by category each year, but compliance with income proportionality limits is measured every five years. Forexample, a housing successor could spend all its funds in a single year on households earning between 60-80% AMI, as long as it spends 20 percent or less of the total expenditures during the five-year compliance period.
Ten-Year Age Proportionality: If more than 50% of the total aggregate number of rental units produced by the City. Housing Authority, or former ACIA during the past 10 years are restricted to seniors, the Housing Authority may not spend more Housing Asset Funds on senior rental housing.
Appendix 3 describes Housing Asset Fund expenditure requirements in more detail, including the types of costs eligible in each category.
EXPENDITURE LIMIT COMPLIANCE
The Housing Successor Agency did not have any expenditures in FY 2022-23. Therefore, the Housing Authority complied with all Housing Asset Fund spending restrictions in FY 2022-23, including five-year compliance period income targeting requirements:3The Housing Authority will ensure it continues to meet all expenditure requirements going forward, including throughout the current five-year compliance period of July 1, 2019 through June 30, 2024.
Failure to comply with the extremely low-income requirement in any five-year compliance period will result in the Housing Authority having to ensure that 50 percent of remaining funds be spent on extremely lowincome rental units until in compliance. Exceeding the expenditure limit for low households earning The Housing Asset Fund figures in this Annual Report are based on unaudited numbers that were available at the time this report was prepared. They might vary slightly from audited numbers once Avalons annual audit is complete.
Avalon Housing Successor Annual Report 2022-23 4
between 60-80% AMI in any five-year reporting period will result in the Housing Authority not being able to expend any funds on these income categories until in compliance.
SENIOR HOUSING LIMIT COMPLIANCE
Pursuant to Health and Safety Code Section 34176.1 (b), a maximum of 50% of deed-restricted rentalhousing units assisted by the former Agency, Housing Authority, or City in the previous 10 years may be restricted to seniors. There have been no deed-restricted affordable senior rental units assisted by theCity, Housing Authority, or former ACIA in the past 10-years. Therefore, the Housing Authority complies with this requirement.
DEPOSITS AND FUND BALANCE
The Housing Authority deposited $11,013 into the Housing Asset Fund during FY 2022-23.
Figure 1
Housing Asset Fund Deposits FY 2022-23
. Interest • Ground Leases 232 & 311 Descanso • Ground Leases 309 & 313 Beacon Revenue sources include:
Interest income ($863).
• Ground lease revenue ($10,150). The Housing Authority received $150 for the 238 & 311 Descanso properties and $10,000 for 309 & 313 Beacon in FY 2022-23.
The Housing Asset Fund balance as of June 30, 2023 was $5,541,154. 5 $10,000
Avalon Housing Successor Annual Report 2022-23
Table I
Housing Asset Fund Ending Balance FY2022-23
Balance Type Amount
Cash and LAIF 1,592,244
Lease Receivable 289464Land Held For Resale/i 3,951426First Time Homebuyer Loans Receivable/2 - Deferred Inflow -Lease (291,979)Ending Balance $ 5,541,154 1 The land value of two properties transferred on the HAT (238 & 311 Descanso) are not recorded in the Housing Asset Fund balance because the land is only held as security in lhe event of default on first-time homebuyer loans. The value of 2C6 E Whittley. 309 Beacon. and 313 Beacon is not reflected in the Trial Balance but has been added here to reflect the former AC LA’s ownership of the land underneath the improved property.
Loan receivable for 336 Triana Lane was transferred on the HAT. It is rot recorded in the Housing Asset Fund balance in Table 1 because the loan is not repaid unless the property is sold.
EXCESS SURPLUS
The Housing Asset Fund may not accumulate an “excess surplus,” or an unencumbered amount thatexceeds the greater of $1 million, or the sum of deposits in the prior four fiscal years. This requirement ensures that housing successors are actively spending available Housing Asset Funds on affordable housing.
The Housing Authority previously accumulated an excess surplus in fl’s 201 9-20, 2020-21, and 2021-22 totaling $517,338. The excess surplus must be expended or encumbered within three fiscal years. If a housing successor fails to comply, it must transfer any excess surplus to HOD within 90 days of the end of the third fiscal year. As a result, the Housing Authority must work to expend or encumber the remaining 2019-20 excess surplus by June 30, 2023. 2020-21 excess surplus by June 30. 2024, and 2021 -22 excess surplus by June 30, 2025. Table 2 illustrates the prior year excess surplus amounts thatare eliminated with the FY 2022-23 commitment of funds to the 206 E Whittley affordable housingdevelopment. The Housing Authority encumbered the excess surplus within 3 fiscal years and will not have to transfer the remaining funds to HOD.
Avalon Housing Successor Annual Report 2022-23 6
Tahle2
Prior Year Excess Surplus Elimination
Remaining Excess Surplus from Prior Years as of 711122
FY 201 9-20 336,345FY 2020-21 154,646FY 2021-22 26,347
Total Excess Surplus from Prior Years $517,338
Elimination of Prior Year Excess SurplusExpenditures
FY 22-23 Expenditures $0
Encumbrances
FY22-23 Encumbrances $700,000
Remaining Prior Year Excess Surplus $0
Table 3 shows the excess surplus calculation for FY 2022-23. The Housing Authority did not have an excess surplus in FY 2022-23. It should be noted that each excess surplus must be accounted forseparately, as such, the reduction for the previous excess surplus is reduced from the available funds asto not double count the excess surplus or available fund balance.
Avalon Housing Successor Annual Report 2022-23 7
Tablé3
Excess Surplus Calculation
Fiscal Year 2018-19 2019-20 2020-21 2021-22Deposits 15,416 11,628 395 63,892Plus: SERAF Payments1 609,609 25,960 - - Total Deposits $ 625,025 $ 37,588 $ 395 $ 63,892
FY 2022-23 Beginning Cash Balance2 11181,231Less: Remaining Encumbered Funds from FY22-23 (182662)Less: Excess Surplus from Prior Years (517,338)Unencumbered Amount 998,569 Step I$1 Million, or $ 1 000000
Last 4 Deposits 726900Result: Larger Number $ 1000,000
Step 2
Unencumbered Cash Balance 998569Larger Number From Step 1 1,000000Excess Surplus $ -‘ In FY 18-19 and 19-20, SERAF payments were not reflected as deposits in Housing Asset Fund accounting records because they were recorded as an adjustment to the SERAF loan receivable balance. However, they are considered deposits for the purpose of making the excess surplus calculation.
TRANSFERS TO OTHER HOUSING SUCCESSORSThere were no transfers to another housing successor entity for a joint project pursuant to HSC Section34176.1 (c)(2).
Avalon Housing Successor Annual Report 2022-23 8
HOUSING SUCCESSOR PORTFOLIO
The Housing Successor Portfolio includes five properties and one loan receivable transferred from theformer ACIA. The Portfolio had a value of $4371426 as of FY 2022-23, as detailed in Table 4. —ar Table 4
Portfolio Value of Real Properties and Loans Receivable Asset Amount
Real Properties309 Beacon Street 862,511
313 Beacon Street 236.315238 Descanso Avenue1 150,000311 Descanso Avenue1 150,000206 East Whittley Avenue 2852,600 Subtotal 4, 251,426Loans ReceivableFirst Time Homebuyer Loans Receivable2 120,000 Subtotal $120,000
Total Portfolio Value $4,371,426
The Authority issued first-time homebuyer loans with these property ewners and holds interest in the land underneath the homes as security in the event of default. The value of these properhes are not included in the Housing Asset Fund balance in Table 1
2 A $120,000 loan receivable for 336 Triana Lane was transferred on the HAT It is not recorded in the Housing Asset Fund balance in Table 1 because the loan is not repaid unless the property is sold Asi odditional $95000 loan for 338 Triana Lane was transferred on the HAT that was paid off when the property was sold to a new moderate income bwer.The new loan at 338 Triana Lane is considered a Housing Authority asset but not a housing successor asset.
PROPERTY DESCRIPTIONS AND DISPOSITION STATUS
The ACIA previously transferred seven real properties to the Housing Authority that were approved byDOF on the HAT in 2012. The Housing Authority sold two of the properties in FY 2013-14. The following is a description of each of the five remaining properties:
• 309 & 313 Beacon Street: This 14-unit senior housing complex is affordable to very low-income residents. The project was constructed in 2002 with a combination of USDA Section 515 funds,Low Income Housing Tax Credit (‘LIHTC”) financing, HOME funds, ACIA funds (for landpurchase) and Federal Home Loan Bank funds. The Developer resyndicated the project in August Avalon Housing Successor Annual Report 2022-23 9
2021. As part of the resyndication process, the ground lease was amended and extended from 2074 to 2077. In addition, the affordability covenant was extended through 2077. 238 & 311 Descanso Avenue; These two single-family homes have 55-year affordable housing restrictive covenants that expire in 2051. The ACIA owned the land under the homes regulatedby ground leases, which were transferred to the Housing Authority. They are both affordable tomoderate income households through ground leases issued by the former ACIA. 206 E. Whittley Avenue; This property contains a four-unit apartment complex. The ACIA purchased the property in 2008 and had planned to build new affordable housing units. However, the ACIA was unable to pursue development due to the dissolution of redevelopment. The Authority now intends to rehabilitate the property and rent units out to low and moderate income households. Pursuant to the Uniform Relocation and Real property Acquisition Policies Act of 1970, the Authority began providing relocation services to the one tenant occupying the property in November 2019 and successfully relocated the tenant in May 2020 in preparation for therehabilitation. Construction was planned to commence in Fall 2020 but was delayed due to the COVID-19 pandemic. The Authority undertook site work activity in FY 2022-23 for thedevelopment of new units.
HSC Code Section 34176(e) requires that all real properties acquired by the ACIA prior to February 1, 2012 and transferred to the Housing Authority be sold or developed for affordable housing purposes within five years from the date DOE approved the HAT. Avalons original HAT was approved by DOE onAugust 30, 2012. DOE later asked the Successor Agency to revise the form to reflect ownership of 309 Beacon Street. The revised HAT was approved by DOE on December 15, 2014. Therefore, the original five-year deadline ended on August 30, 2017 for all the properties except 309 Beacon Street, which ended on December 15, 2019, and is already developed as affordable housing. On August 1. 2017, the Housing Authority adopted Housing Authority Resolution 17-01 extending the period for development or disposition of Housing Authority properties transferred from the former ACIA to August 30: 2022, as permitted by law. As described above, the Housing Authority has developed or initiated development onall properties.
Avalon Housing SuccessorAnnual Report 2022-23 10
LOANS RECEIVABLE AND DEFERRALS -_________
Two loans receivable and one deferral were transferred on the HAT. One loan for $95000 at 338 Triana Lane was paid off after dissolution.4 The final payment towards the $1 million deferral was paid in FY 2019-20 in the amount of $25,959. The remaining loan is described below:
• First Time Homebuyer Program Loan Receivable ($120,000): The former ACIA issued a $120,000 loan to a moderate-income homebuyer at 336 Triana Lane. The loan is due upon saleor within 30 years, whichever comes first The loan does not accrue interest except in the eventof default, in which case the interest rate increases to five percent. There is no monthly payment unless a mutually agreed upon payment schedule is made. It is anticipated that the loan will berefinanced at the end of the 30-year term or re-issued to a new borrower upon the sale of theproperties.
AFFORDABILITY AGREEMENTSThe Housing Authority oversees seven affordability agreements transferred from the former ACIA:
• 309 Beacon Street: This 14-unit senior housing complex is affordable to very low-income residents. The project was constructed in 2002 with a combination of USDA Section 515 funds,Low income Housing Tax Credit (“LIHTC”) financing, HOME funds, ACIA funds (for landpurchase) and Federal Home Loan Bank funds. The Developer resyndicated the project in August 2021. As part of the resyndication process between 309 Beacon St. and the non contiguous Bird Park, the ground lease was amended and extended from 2074 to 2077 and theaffordability covenant was extended 28 years and will expire in 2077. In addition, the affordabilitymix restricted 18 units (of the 36 between Beacon St. and Bird Park) to households with incomes less than 50% and 18 units to households with incomes less than 60% AMI based on TCAClimits. The City of Avalon adopted Resolution No. HA 20-01 in March 2020 which, at a minimum, See next sections for more details on the 338 Triana Lane loan payoff.
Avalon Housing Successor Annual Report 2022-23 11
requires the units to be restricted to rental households earning no more than 80% of AMI based on limits established by the State’s Department of Housing and Community Development. • Bird Park: This 24-unit multi-family property is affordable to very low-income residents. It was constructed in 2002 with a combination of USDA Section 515 funds1 LIHTC financing, HOME funds, and ACIA financing. The ACIA funded roads and infrastructure for the project. As part of the resyndication process between Bird Park and the non-contiguous 309 Beacon St., the affordability covenant will be extended 28 years and will expire in 2077. In addition, theaffordability mix restricted 18 units (of the 36 between Beacon St. and Bird Park) to households with incomes less than 50% and 18 units to households with incomes less than 60% AMI based on TCAC limits.
• Eucalyptus Hill Gardens: This 80-unit complex is subsidized by HUD and has 40 units restricted to very low-income households (24 extremely low and 16 very low income). The remaining 40 units are market-rate. The project was constructed in 1992 with LIHTC funds, ACIA funds, and Rental Housing Construction Program loans. It has a 55-year affordability covenant that expiresin 2047. • Tremont Street Apartments: This 63-unit property had an agreement between the City and the California Housing Financing Agency (“CaIHFA”) that restricted affordability at this property through August 18, 2016. The ACIA affordable housing covenants have since expired on theTremont Street Apartments. However, the project is also subsidized by CaIHFA and Section 8 Project Based Vouchers. The CaIHFA promissory note was repaid by Hamilton Cove many years ago, but the Section 8 Project Based Vouchers were renewed in 2013 and will remain in effect until April 30, 2033 for 62 units restricted to low income households. • 238 & 311 Descanso Avenue: These two single-family homes have 55-year restrictive covenants that expire in 2051. They are both affordable to moderate income households through ground leases issued by the former ACIA.
• 336 Triana Lane: This single-family home has a 45-year restrictive covenant that expires in 2055.
A moderate income household received assistance through the First-Time Homebuyer Down Payment Assistance Program.
Avalon Housing Successor Annual Report 2022-23 12
One additional affordability agreement was transferred on the HAT at 338 Triana Lane for a First-Time Homebuyer Down Payment Assistance Program loan that was paid off after dissolution. The Housing Authority issued a new loan at the property that is maintained by the Housing Authority but is not a housing successor asset, as it was not funded by Housing Asset Funds.
A va/on Housing Successor Annual Report 2022-23 13
HOMEOWNERSHIP UNIT INVENTORY
Table 5 presents an inventory of homeownership units assisted by the former ACIA that requirerestrictions, covenants, or an adopted program that protects former ACIA Low and Moderate Income Housing Fund investments. One of the units, 338 Triana Lane, was assisted by the ACIA prior to dissolution with a $95,000 loan that was paid off after dissolution. A new $192000 loan was issued at this property in December 2014 by the Housing Authority using housing bond proceeds. The loan has been included as part of the homeownership inventory to reflect the protection of the former ACIA’sinvestment, however it is considered a Housing Authority asset and not a housing successor assetbecause Housing Asset Funds were not used to fund the new loan.
Project Name I Address
238 Descanso Ave
311 Descanso Ave336 Triana Lane338 Triana Lane
Funding Source
LMIHF
LMIHFLMIHF
Housing Bonds
i11 i[•1’’i iO
Income
Level
Moderate
ModerateModerateModerate
Covenant
Expiration
5/17/515/23/51
9/21/556/23/59
Program
FTHBFTHB
FTH BFTH B
Avalon Housing Successor Annual Report 2022-23 14
APPENDIX I - HOUSING SUCCESSOR ANNUAL REPORT
REQUIREMENTS
Housing Successor Reporting Requirements
Health and Safety Code Section 34176.1(0
Housing Asset Fund Other Assets and Active Obligations & Proportionality Revenues & Expenditures Projects Total amount deposited in the Description of any project(s) Description of any outstanding Housing Asset Fund for the fiscal funded through the ROPS production obligations of the year former ACIA that were inherited
by the Housing Authority Amount of deposits funded by a Recognized Obligation Payment
Schedule (“ROPS”)
Statement of balance at the Update on property Compliance with proportionalityclose of the fiscal year disposition efforts (note that requirements (income group housing successors may only targets), which must be upheldhold property for up to five on a five year cycle years, unless it is alreadydeveloped with affordable
housing)
Description of Expenditures for Other portfolio” balances, Percentage of deed-restricted the fiscal year, broken out as including: rental housing restricted tofollows: seniors and assisted by the • Statutory value of any former ACIA, the Housing • Homeless prevention and real property either Authority, or the City within the rapid rehousing transferred from the past ten years compared to the former ACIA or. Administrative and total number of units assisted by purchased by the monitoring any of those three agencies Housing Asset Fund . Housing development • Value of loans and
expenses by income level grants receivable assisted
Description of any transfers to Inventory of homeownership Amount of any excess surplus, another housing successor for a units assisted by the former and, if any. the plan for joint project ACIA or the housing eliminating it
successor that are subject to
covenants or restrictions or toan adopted program that
protects the former AC IA’sinvestment of monies from theLow and Moderate IncomeHousing Fund Avalori Housing Successor Annual Report 2022-23 15
APPENDIX 2 -HOUSING ASSET TRANSFER FORM
The Housing Asset Transfer Form is attached as a separate document.
Avalon Housing Successor Annual Report 2022-23 16
APPENDIX 3 -HOUSING ASSET FUND EXPENDITURE
REQUIREMENTS
• Capped at $200,000 adjusted annually for inflation or 5% of the statutory value of real property owned by the housing successorand the value of loans and grants receivable from the HAT (Portfolio”), whichever is greater.
Services for individuals and families who are homeless or would be homeless but for this assistance, including:
• Contributions toward the construction of local or regional homeless shelters
• Housing relocation and stabilization services including housing search, mediation, or outreach to property owners • Short-term or medium-term rental assistance• Security or utility deposits• Utility payments• Moving cost assistance• Credit repair • Case management
• Other appropriate activities for homelessness prevention and rapid rehousing of persons who have become homeless.
Affordable No spending ‘Development’ includes:
Housing limit, but must • New constructionDevelopment comply with • Acquisition and rehabilitation income and • Substantial rehabilitation
age targets • Acquisition of long-term affordability covenants on multifamily units
• Preservation of at-risk units whose affordable rent restrictions would otherwise expire over the next five years
Administrationand
Compliance
Monitoring - -. $254,500 maximum for FY 2022-23 in Avalon (limit varies eachyear)
Administrative activities such as:
• Professional services (consultant fees, auditor fees, etc.)• Staff salaries, benefits, and overhead for time spent on Housing Successor administration
• Compliance monitoring to ensure compliance with affordable housing and loan agreementsProperty maintenance at Housing Successor-ownedproperties HomelessPrevention
and
RapidRehousing
Solutions
$250,000
maximum per
fiscal year
Avalon Housing Successor Annual Report 2022-23 17
Every five years (currently FY 2020-2024), Housing Asset Funds must meet income targets:
• At least 30% on extremely low income rental households (up to 30% AMI or’Area Median Income”)
• No more than 20% on low income households (60-80% AMI) Moderate and above moderate income households may not be assisted (above 80% AMI).
Failure to comply with the extremely low income requirement in any five-year compliance period will result in having to ensure that 50 percent of remaining funds be spent on extremely low income rental units until in compliance.
Exceeding the expenditure limit for low households earning between 60-80% AMI in any five-year reporting period will resultin not being able to expend any funds on these income categories until in compliance.
Age Targets For the prior ten years (resets every year), a maximum of 50% of deed-restricted rental housing units assisted by the Housing Successor or its host jurisdiction may be restricted to seniors.
If a housing successor fails to comply, Housing Asset Funds may not be spent on deed-restricted rental housing restricted to seniors until in compliance.
Income
Targets
Avalon Housing Successor Annual Report 2022-23 18
Avalon Housing Successor Annual Report 2022-23 19
THE SUCCESSOR
CITY OF AVALON CITY COUNCIL ACTING AS
AGENCY TO THE AVALON COMMUNITY IMPROVEMENT AGENCY
MEETING DATE: December 12. 2023 AGENDA ITEM: 5
Matthew Baker, Finance Director
Alex Lawrence, Consultant, RSG, Inc.
SUBJECT: Recognized Obligation Payment Schedule (ROPS) 24-25 and Successor Agency Administrative Budget for Fiscal Year 2024-25 RECOMMENDED ACTION(S): Adopt “A Resolution of the Successor Agency to the Avalon Community Improvement Agency Approving a Recognized Obligation Payment Schedule 24- 25 and Successor Agency Administrative Budget for Fiscal Year 2024-25.”
BACKGROUND
As a result of the dissolution of redevelopment, the Successor Agency was created to administer the enforceable obligations and unwind the affairs of the former Avalon Community Improvement Agency (‘Former Agency”). As part of that process, the Successor Agency must annually adopt the Recognized Obligation Payment Schedule (“ROPS”), as required by Dissolution Law.
AVALON ROPS 24-25
A Recognized Obligation Payment Schedule for the
covering the period of July 1, 2024 to June 30, 2025,
Department of Finance (“DOE’) by February 1, 2024.
deadline, the City of Avalon (as the City and not as the civil penalty of $10,000 per day for each day it is late. 2024-25 fiscal period (“ROPS 24-25”),
is required to be submitted to the State
If the ROPS is not submitted by that
Successor Agency) will be subject to a
DOF provided the Successor Agency with a partially completed ROPS form to standardize the form and make it consistent with the automated tracking system. Commencing October 1,2018 and annually thereafter, the differences between actual payments and past estimated and approved obligations on the ROPS shall be submitted by the Successor Agency to the Los Angeles County Auditor-Controller for review and adjustment to future distributions through a Prior Period Adjustment (“PPA”) form. The County Auditor-Controller has until February 1 to submit the reviewed PPA to DOE for DOE approval.
A PPA form for ROPS 21-22 was submitted by Avalon Successor Agency staff to the County Auditor-Controller before the October 1, 2023 deadline. Because the ROPS is an estimate ofthe funds needed to pay enforceable obligations, often times the requested amounts vary from the actual expenditure. During the ROPS 21-22 period1 the PPA showed that the Avalon Successor Agency spent $1,850 less Redevelopment Property Tax Rust Funds (“RPTTF”) ORIGINATING DEP:
PREPARED BY:
Finance CITY MANAGER: ü.wi&
than requested on fiscal agent fees. The unspent $1850 will likely be deducted from the Fiscal Year 2024-25 RPTTF distribution.
Enforceable Obligations
The enforceable obligations on the ROPS remain unchanged from prior periods. The ROPS 24-25 requests RPTTF in the amount of $2,120,780 to fund the following items:
• Debt service payments on the 2003 Tax Allocation Bonds, Series A;• Debt service payments on the 2015 lax Allocation Refunding Bonds, Series 2015 A and 20158;
• Bond fiscal agent and disclosure fees;• Administrative cost allowance.
Previous Enforceable Obligations
Prior ROPS items that have been retired include:
• SERAF Loan that was fully repaid;
• Pebbly Beach Road Construction and Catalina Island Museum Society reimbursement payment;
• Audit and Accounting and Legal Services that are now paid for under the administrative cost allowance;
• Contract with Rincon Consultants that has been fulfilled; • Low and Moderate Income Housing Down Payment Assistance Program that has been funded with housing bond proceeds on prior ROPS;
• A City loan to the Successor Agency that has been repaid.
DOE Review
Upon submittal of an Oversight Board-approved ROPS, DOE has 45 days to make its determination. The RPTTF distribution dates for the ROPS 24-25 are on or about June 1, 2024 and January 2, 2025.
SUCCESSOR AGENCY ADMINISTRATIVE BUDGET (FISCAL YEAR 24-25) California Health and Safety Code (“HSC”) Section 34177(j) requires the Successor Agency to prepare an Administrative Budget and submit it to the Oversight Board for approval. Pursuant to HSC Section 34171 (b), the administrative allowance is limited to the greater of $250,000 per year, or three percent (3%) of the RPTTF distributed in the prior fiscal year, excluding the administrative allowance and any City/Former Agency loan repayments.
Staff has completed a projection funding needed for the 2024-25 fiscal year and is recommending that the Successor Agency approve an annual administrative budget of $150,000, which is split evenly between the two six-month ROPS periods, and direct staff to submit the budget to the Oversight Board for approval. Administrative activities for the 2024-25 fiscal year include preparation and legal review of the ROPS, PPA, staff reports and resolutions, payment of enforceable obligations, affendance at Successor Agency and
Oversight Board meetings, and other activities detailed in Exhibit B attached to the accompanying resolution.
LAST AND FINAL ROPS
Beginning January 1, 2016, successor agencies may submit a Last and Final ROPS for approval by the oversight board and DOE if all of the following conditions are met:
1. Remaining debt includes only administrative costs and enforceable obligations with set payment schedules, such as debt service, loan agreements, and contracts;
2. All remaining obligations have been previously listed on a ROPS and approved by DOF; and
3. The successor agency has no outstanding or unresolved litigation.
The Successor Agency meets these conditions but we do not believe that now is the time to submit a Last and Final ROPS. Once DOE approves a successor agency’s Last and Final ROPS, the successor agency may submit up to two requests to amend it.
A consideration with a Last and Final ROPS is the likelihood of the recurring administrative cost allowance being significantly reduced. DOE has indicated that the administrative cost allowance on a Last and Final ROPS should be expected to be reduced to approximately $5,000 per approved line item per year as a general rule of thumb. This is similar to what other Successor Agencies who have filed a Last and Final ROPS have had their administrative cost allowance reduced to.
Avalon will need to weigh the fiscal consequences on the City General Fund, with a potential loss of the recurring administrative cost allowances. Ultimately, the taxing agencies, including the City, share in the benefits of a Last and Final ROPS over the short term, but long term the City may be at risk of losing the greater administrative cost allowance. Every successor agency faces this issue; however, ultimately the administrative cost allowance will end once enforceable obligations are retired. Successor Agency staff and the Successor Agency’s financial consultant, RSG, Inc., will continue to analyze the potential impacts of submitting a Last and Final ROPS.
OVERSIGHT BOARD CONSOLIDATION
Oversight boards have broad authority to set administrative budgets, approve the transfer of properties pursuant to a long-range property management plan, approve enforceable obligations, and otherwise direct the successor agency to perform activities to wind down the former redevelopment agencies.
The Dissolution Act (specifically HSC Section 34179(j-q)) provides that local oversight boards are succeeded by a single Countywide oversight board (with the exception of Los Angeles County, where 5 oversight boards have been created), commencing on July 1, 2016. The ROPS and Administrative Budget prepared by the Successor Agency for FY 2024-25 will be reviewed by the District 4 Los Angeles County Oversight Board.
ENVIRONMENTAL REVIEW: The action taken by the Successor Agency to approve the ROPS 24-25 and the Successor Agency Administrative Budget does not commit the Successor Agency to any actions that may have a significant effect on the environment. As a result, such actions do not constitute projects subject to the requirements of the California Environmental Quality Act.
FISCAL IMPACT: Approval of the ROPS and Administrative Budget is necessary for the Successor Agency to continue administrative operations and make payments for debt service, contracts, and other enforceable obligations. By not adopting the ROPS and Administrative Budget, the Successor Agency would risk defaulting on debt agreements and not being able to fund certain expenses and operations, which would also impact the City’s General Fund.
Failure to submit an Oversight Board-approved ROPS to DOF by February 1, 2024 will also result in a $10,000 per day penalty assessed against the City for each day the ROPS is late.
ADVERTISING, NOTICE AND PUBLIC CONTACT: This item was properly listed on the posted agenda pursuant to the Brown Act.
ATTACHMENTS:
• Successor Agency Resolution Approving the ROPS 24-25 and the FY 2024-25 • Successor Agency Administrative Budget
SUCCESSOR AGENCY RESOLUTION NO.
A RESOLUTION OF THE SUCCESSOR AGENCY TO THE AVALONCOMMUNITY IMPROVEMENT AGENCY APPROVING A RECOGNIZED OBLIGATION PAYMENT SCHEDULE 24-25 AND SUCCESSOR AGENCY
ADMINISTRATIVE BUDGET FOR FISCAL YEAR 2024-25
WHEREAS, pursuant to Assembly Bill 26 of the First Extraordinary Session of the 2011- 2012 Legislative Session (“ABX1 26”) (Chapter 5, Statutes of 2011), the Avalon Community Improvement Agency was effectively dissolved as of February 1, 2012; and WHEREAS, pursuant to ABX1 26, the City Council of the City of Avalon serves as the Successor Agency to the Avalon Community Improvement Agency (“Successor Agency”); and WHEREAS, pursuant to Health and Safety Code Section 34177, the Successor Agency is required to prepare a Recognized Obligation Payment Schedule (“ROPS”) in a manner prescribed by the California Department of Finance (DOE’), and submit the ROPS to an oversight board, the Los Angeles County Auditor-Controfler, the State Controller’s Office, and DOF for review and approval; and
WHEREAS, pursuant to Health and Safety Code Section Section 34179(j), in every California county there shall be only one oversight board that is staffed by the county’s auditor- controller, with the exception of Los Angeles County that has five oversight boards, each a consolidated board with one each for the five supervisorial districts in the County of Los Angeles; and WHEREAS, the applicable consolidated oversight board overseeing this Successor Agency is called the Consolidated Oversight Board Fourth District of Los Angeles County (“Fourth District Oversight Board”); and
WHEREAS, Assembly Bill 1484 (‘AB 1484”) (Chapter 26, Statutes of 2012) established new procedural requirements for the preparation, review, and approval of ROPS by the Successor Agency, including clarifications regarding ‘enforceable obligations”; and WHEREAS, Senate Bill 107 (“SB 107”) (Chapter 325, Statutes of 2015) established revised procedural requirements for the preparation, review and approval of ROPS by the Successor Agency, including modifying the ROPS process to an annual ROPS beginning with FY 2016-17: and
WHEREAS, Exhibit “A’ to this resolution establishes a ROPS for the fiscal year beginning July 1, 2024 and ending June 30, 2025 (“ROPS 24-25”), in a manner consistent with that prescribed by DOF; and
WHEREAS, Health and Safety Code Section 34177(j) requires the Successor Agency to prepare and submit a Successor Agency Administrative Budget (Administrative Budget”) forapproval by an oversight board; and WHEREAS, the Successor Agency will be allocated an ‘Administrative Cost Allowance,” as defined in Health and Safety Code Section 3417 1(b); and WHEREAS, Exhibit “B’ to this resolution presents an Administrative Budget for fiscal year 2024-25, which provides the estimated amounts for Successor Agency administrative costs for the upcoming six-month fiscal periods of July 1, 2024 — December 31, 2024, and January 1 2025 — June 30, 2025 in the total amount of $1 50,000, which is divided evenly between the twosix-month fiscal periods of the fiscal year.
NOW, THEREFORE, THE SUCCESSOR AGENCY TO THE AVALON COMMUNITY IMPROVEMENT AGENCY DOES HEREBY RESOLVE AS FOLLOWS:
Section 1. Recitals. The Recitals set forth above are true and correct and incorporated herein by reference.
Section 2. Approval of ROPS. The Successor Agency hereby approves the Recognized Obligation Payment Schedule 24-25, in substantially the form attached hereto as Exhibit ‘A” as required by ABX1 26, enacted during the 2011 legislative year, AS 1484, enacted during the 2012 legislative year, and SB 107, enacted during the 2015 legislative year.
Section 3. Approval of Administrative Budget. The Successor Agency hereby approves the Successor Agency Administrative Budget for Fiscal Year 2024-25, in substantially the form attached hereto as Exhibit “B.” as required by ABX1 26, enacted during the 2011 legislative year, AB 1484, enacted during the 2012 legislative year, and SB 107, enacted during the 2015 legislative year.
Section 4. Transmittal to Appropriate Agencies. The City Manager, on behalf of the Successor Agency, is hereby authorized and directed to transmit a copy of the ROPS to the Fourth District Oversight Board, and upon approval by the Fourth District Oversight Board submit the approved ROPS to the Los Angeles County Auditor-Controller, the State Department of Finance and the State Controller’s Office, and post a copy on the Successor Agency’s website, as prescribed by statute. The City Manager is additionally authorized and directed to transmit a copy of the Administrative Budget to the Fourth District Oversight Board for approval.
Section 5. Technical Revisions. The City Manager is hereby authorized and directed to use their discretion to make any necessary technical revisions to the ROPS and Administrative Budget prior to submittal to the appropriate reviewing bodies.
PASSED AND ADOPTED at a regular meeting of the Successor Agency to the Avalon Community Improvement Agency, on the 12’ day of December. 2023, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
Ann Marshall, Chair
ATTEST:
Gabrielle Morones, Agency Secretary
EXHIBIT “A”
RECOGNIZED OBLIGATION PAYMENT SCHEDULE
JULY 1,2024—JUNE 30, 2025
Recognized Obligation Payment Schedule (ROPS 24-25) - Summary Filed for the July 1,2024 through June 30, 2025 Period
Successor Agency: Avalon
County: Los Angeles
Current Period Requested Funding for Enforceable
Obligations (ROPS Detail)
A Enforceable Obligations Funded as Follows (B+C+D)
B Bond Proceeds
C Reserve Balance
D Other Funds
E Redevelopment Property Tax Trust Fund (RPTTF) (F+G)F RPTTF C Administrative RPTTF
H Current Period Enforceable Obligations (A+E)
Certification of Oversight Board Chairman:
Pursuant to Section 34177 (o) of the Health and Safety
code, I hereby certify that the above is a true andaccurate Recognized Obligation Payment Schedule for the above named successor agency.
24-25A Total
(July -
December)
24-25B Total
(January -
June)
$
ROPS 24-25
Total
$ $
$ 1,732,076 $ 388,704 $ 2,120,780
1,657,076 313,704 1,970,780
75,000 75,000 150,000
$ 1,732,076 $ 388,704 $ 2,120,780
Name Title
Is’
Signature Date
Ava Ion
Recognized Obligation Payment Schedule (ROPS 24-25) ROPS Detail July 1,2024 through June 30, 2025
‘A’ B ‘ C ‘ 0 ‘ 6 ‘ F 0 H I ‘ K L M N! 0 P Q R $ T! u VI w R0PS 24-25A (Jul - Dcc) ROPS 24-258 (Jan - Jun) -
Aoreemen: AoreeTel mIst ROPS Iten Projecr \ane Obliga. C E;ecuto2 TeEnation, Payee Dew ot on - °rz;ec: Area CIsIa—c —g Ret’red 24-25 Fund Sources - 24-25A Fund Sources 24-259 Type Date Date 00 gab- Total Bond •Peseme Ore RP’F Aamn Total Bor.z Resere Other I RP1TF ACT Total : Proceeds 8a.ance Funds RPF Proceecs Balance Funcs. qprTF 522.460,538 $2120780 5- 5- 5- $1,657,076 $75,000 $1732076 5- 5— $— $313,704 $75,000 $388,704 2003 Tax Bonds 12/15/ 09/01/2034 U.S. Bank Bonds issued Community 2,056,360 N $67,320 - - - 33,660 - $33,660 - - - 33,660 - 533,660 Allocation Issued On 2003 National to fund non- Improvement Bonds series or Before Association housing Project Area A 12/31/10 projects
3 Fiscal Agent Fees 12/15/ 06/30/2035 U.S. Bank Fees for fiscal Community 66.000 N $6,000 - - - 6,000 - S6,000 - - - - - 5- Fees 2003 National agent services Improvement
Association Project Area
16 Continuing Fees 12/15/ 06/30/2036 Harrell & Continuing Community 38,500 N $4,000 - - - - - $- - - - 4,000 - $4,000 Bond 2003 Co. disctosure Improvement Disclosure Advisors reporting and Project Area
and Bond and/or US bond arbitrage
Arbitrage Bank requirements
for2003 and
2015 Tax
Allocat,on
Bonds
20 Successor Admin 02/01! o6’3o/2036 Emaloyees All Community a.ooo.oooj N 5150.000 - - - 75.000 $75,000 - - - 75.000 575.000 Agency Costs 2012 ci adninisrrativel Improvement . I -
Acninistrative successor operarional Project Area
Costs Agency. costso’rhe I . I I Legal Successor
Counsel. Agency, i -
.
Consultants ‘neludino
! Various staffing,
Other nvehead. .
Vendors legal counsel
fancj -
I costM’g, : ocerty
ma’,enace
em.
25 2015 Tax Bonds 06/30! 09/01/2033 U.s. Sank Bonds issued Community 12,407,619 N S1,402,213 - - - 1.211.044 - $1,211,044 - - - 191,169 - sigi,mg Allocation Issued On 2015 Nat,crlal to tuna el,g,ble Improvement Refunding or Betore Association redevelopment Project Area Bonds series 12/31/10 projects
2015A
26 2015 Tax Refunding 06/30/ 09/01/2033 U.s. Bank Bonds issued Community 4,881,559 N $491,247 - - 406,372 - $406,372 - - - 84,875 - $84,875 Allocation Bonds 2015 National to tund eligible Improvement Refunding Issued Association redevelopment Project Area Bonds Series After 6/ projects
20158 27/12
Ava Ion
Recognized Obligation Payment Schedule (ROPS 24-25) - Report of Cash Balances July 1,2021 through June 30, 2022
(Report Amounts in Whole Dollars)
Pursuant to Health and Safety Code section 34177(l), Redevelopment Property Tax Trust Fund (RPTTF) may be listed as a source of payment on the ROPS, but only to the extent no other funding source is available or when payment from property tax revenues is required by an enforceable obligation.
A B C D E F G I H
Fund Sources
Bond Proceeds Reserve Balance] Other Funds RPTTF F
Prior ROPS ROPS 21-22 Cash Balances : RPTTF and Comments (07101121 - 06130122) Bonds issued Bonds ssueo Reserve Rent, grants. Non-Admin on or before or’ or after Balances retained interest. etc. and Adrnin 12i3i10 01101111 for fjture period(s) Beginning Available Cash Balance (Actual 07101/21) 28 166 2,600 RPYTF amount should exclude “A” period distribution a mount.
2 Revenue/Income (Actual 06/30/22) 114 2,314,070
RPTTF amount should tie to the ROPS 21-22 total
distribution from the County Auditor-Controller
3 Expenditures for ROPS 21-22 Enforceable Obligations 2313,270 (Actual 06/30/22)
4 Retention of Available Cash Balance (Actual 06/30/22) 28,142 1,550 RPTTF amount retained should only include the amounts
distributed as reserve for future period(s)
‘5 ROPS 21-22 RPTTF Prior Period Adjustment 1,850
RPTTF amount should tie to the Agencs ROPS 21-22 PPA ND entry -euiree form submitted to the CAC
Ending Actual Available Cash Balance (06/30/22) $- s-i s-I $136 s-I Cto F(1 +2-3 -4), G(1 +2-3 -4-5) I 6 Ava Ion
Recognized Obligation Payment Schedule (ROPS 24-25) - Notes July 1, 2024 through June 30, 2025
Item # NoteslComments
3 16
20 25
26 EXHIBIT
SUCCESSOR AGENCY ADMINISTRATIVE BUDGET
FISCAL YEAR 2024-25
SUCCESSOR AGENCY To THE AVALON COMMUNITY IMPROVEMENT AGENCY
ANNUAL & SIX-MONTH ADMINISTRATIVE BUDGETS
FISCAL YEAR 2024-25
ANNUAL JUL-DEC iAN-JUN
Expense Category FY 2024-25 2024 2025 Description
Personnel Expenses
City Manager (10%) $ 11,150 $ 5,575 S 5,575 City Managers Office - Provide direction to staff and Assistant City Manager (10%) $ 11,150 $ 5,575 $ 5,575 consultants as needed; reviews and oversees SA Administrative Analyst (10%) $ 11,150 $ 5,575 $ 5,575 administration and annual ROPS deliverables.
Finance Department - Process payment of enforceable
Finance Director (30%) $ 33,450 $ 16,725 $ 16,725 obligations; maintain documentation of SA records; coordinate with consultants to answer questions and
provide documentation as needed for reporting preparation and as requestec by rhe Cvers ght Board, County Auditor Acco,n: Thchnician {40%) $ 44,6CC $ 22,300 $ 22,300 Controiler, and DOF; administ-ation ard impementation of SA wino-down actvities, Last and Final RDPS preparaton.
Personnelcosts Subtotal $ 111,500 $ 55,750 $ 55,750
Service Expenses
Pepre RCPS, PZA, staff reports a’tc resoLtiors for BA and OB; coordinate and answer questions for Oversight Board, ProfessFonal Services (R56 $ 25,000 $ 12,500 12,500 County Auditor-Controller, and DOF; monitor and project Contract) cash flow to ensure sufficients revenues for obligations and inform SA staff or expected revenues; Last and Final ROPS preparation; other SA services as needed.
Accounting and Auditing $ 5,500 $ 2,750 $ 2,750 Audits and other financial services as needed. . Provide general legal services as needed, review staff Legal Services $ 7,000 $ 3,5CC $ 3,500 reports and resolutions, other legal services as needed.
Overhead & Department $ 1,000 $ SOD office overhead, supplies, trainings, conferences, other SA Expenses expenses.
Service Costs Subtotal $ 38,500 $ 19,250 $ 19,250
Total Expenses $ 150,000 $ 75,000 $ 75,000
CITY OF AVALON CITY COUNCIL
MEETING DATE: December 12, 2023 AGENDA ITEM: (P
ORIGINATING DEP: Finance CITY MANAGER: kMU
PREPARED BY: Matthew Baker, Finance Director
Dine Carstarphen, Harbor Master
SUBJECT: Cruise Ship Annual Report for the year ending December 31, 2023RECOMMENDED ACTION(S): Receive and file the Cruise Ship Annual Report for the calendar year ending December 31, 2023
REPORT SUMMARY: On December 22, 2022, the City Council adopted Resolution No. 22- 55 establishing guidelines for the approval of cruise ships visiting Avalon through December31, 2024. The guidelines re-affirmed the framework by which cruise ships would be approved to visit Avalon as a port of call. Guidelines include:
1. Number of regularly scheduled cruise ship vessels shall not exceed 3 per week during the Summer Season (Memorial Day to Labor Day) without final written approval of the City Manager.
2. No cruise ship vessels shall be allowed on the weekends during the Summer Season or during special event weekends without final written approval of the City Manager.
3. Number of regularly scheduled cruise ship vessels shall not exceed 3 per week during the ‘off season” (Labor Day to Memorial Day) without final written approval of the City Manager.
4. Repositioning, infrequent, or small cruise ship vessels (1000 passengers or less) may be considered for visitation by the Harbor Master, taking into account the dayrequested, holidays, events, harbor activities, impacts to public safety, etc.
The resolution further requires the Harbor Master and Finance Director to provide an annual report on cruise ship vessels that includes the number of vessels that visit Avalon, number of passengers, amount of wharfage collected, any safety or security incidents that may have occurred while the ship was in port, as well as projections and scheduling information for the next year.
2023 Cruise Ship Financial Results and 2024 Outlook
Please see below for a summary of cruise ship activity for the calendar year ending December31, 2023:
Month # of Vessels # of Vessels Number of Occupancy Wharfage Measure H Scheduled Arrived Passengers Revenue Revenue
January 2023 11 8 17,865 76.7% $89,325.00 $8,932.50
February 2023 11 10 27,165 95.8% $135,825.00 $13,582.50 March 2023 13 11 31,885 113.0% $159,425.00 $15,942.50
April 2023 12 8 22,932 110.2% $114,660.00 $22,932.00
May 2023 10 10 29,751 108.6% 5148.755.00 . $29,751.00
. June 2023 7 . 7 , 27,156 122.9% $135780.00 ‘ $27,156.00i July2023 7 7 27,654 125.2% $138270.00 $27,654.00 August2023 8 7 26,492 119.9% 5132.460.00 $26,492.00
September2023 11 10 29,211 108.1% 5146.055.00 I $29,211.00 October2023 17 14 37,668 105.1% $188,340.00 ‘ $37,668.00 November2023 15 11 , 28,046 105.2% $140230.00 $28,046.00 December 20231 10 10 29,326 100.0% $146,630.00 $29,326.00 Total 132 113 335,151 104.8% $1,675,755.00 $296,694.00
For all cruise ships, the City of Avalon currently charges a $5.00 per passenger harbor wharfage fee for the use of harbor facilities, levied upon 100% of the manifest passengers,excluding persons employed on the vessel. On November 3, 2020, Avalon residents approved Measure H authorizing an additional tax on cruise ship, ferry, and aircraft passengers to fund the Catalina Island Medical Center. Beginning in April 2022, the City started collecting an additional $0.50 per passenger fee from cruise ships. The Measure H tax increased to $1.00 per passenger beginning in April 2023 and is scheduled increase to $2.00 per passenger in April 2024.
Passenger counts are reported to the Harbor Department upon arrival to the harbor by the cruise operator. Ship occupancy rates are determined by comparing the reported manifestpassengers to the ship’s published passenger capacity, which generally assumes all cabins atdouble occupancy, and may exceed 100% occupancy as a result of triple occupancies.
Over the past ten fiscal years, the number of cruise ship arrivals has remained fairly consistent, ranging from 99 in FY2013-14 to 116 in FY2016-17. However, the average number of passengers has increased from approximately 2,400 passengers per arrival pre-pandemic to 2,936 passengers in FY2022-23. This increase is attributable to changes in the cruise industry towards larger vessels arriving in Avalon and is anticipated to continue in 2024 with seven vessels scheduled to arrive with occupancy exceeding 5,000 passengers. Below please find a comparison of the number of arrivals and average occupancy over the past ten fiscal years.
December 2023 activity estimated based on scheduled activity as of December 1, 2023 at 100% occupancy.
Cruise Ship Arrivals - Last 10 Fiscal Years
Number of Arrivals —Average Occupancy
In March 2017, the City amended the municipal code to increase wharfage fees from $2.50 per passenger to $5.00 per passenger over five fiscal years through annual $0.50 per passenger increases. While the COVID-19 pandemic resulted in a suspension of cruise ship arrivals fromMarch 2020 through September 2021, the cruise ship wharfage fees continued to increase as scheduled. Below please find a comparison of cruise ship wharfage revenues by fiscal year, and as a percentage of the Harbor’s total operating revenues.
Cruise Ship Revenues - Last 10 Fiscal Years
140 3500120 3000
100 2500
80 200060 1500
40 1000
20 500
0 0
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—Cruise Ship Wharfage Revenue —Percentage of Harbor Revenues (Fund 103) Cruise ship revenues now account for approximately 20% of Harbor operating revenues (Fund 103). As a result of scheduled rate increases and increased occupancy, cruise ship wharfage is the fastest growing revenue and accounts for the majority of revenue growth in the HarborFund. In addition to the wharfage revenues generated, cruise ship passengers account for approximately one quarter of all visitors to the City and contribute at least $13 million of taxablesales activity for businesses located in the City.2 Under Section 10-2.402(b)(6) of the Avalon Municipal Code, in consideration for a cruise line deploying a second ship to Catalina for 50 or more calls per year, the City of Avalon will pay tothe cruise line an annual marketing incentive equal to 50% of the wharfage fees collected for the second ship, payable quarterly, in arrears. During the calendar year ending December 31, 2023, no cruise line was eligible for the annual marketing incentive and no cruise line will be eligible in 2024 based on current scheduled arrivals as of December 1, 2023. Below please find a summary of scheduled arrivals by operator and cruise line:
! Operator Cruise Line Cruise Ship Passenger 2023 2024
Capacity
Carnival Corporation Carnival cruise Line Radiance 2.984 47 Miracle 2,141 10 4Firenze 5.260 0 7
Holland America Line MS Koningsdam ‘ 2,650 1 3
MS Zaandam 1,432 0 1MS Noordam 1,916 1 0MS Eurodam 2,104 0 1 Princess Cruises Sapphire Princess 2,670 1 0
Discovery Princess 3660 0 4
Seabourn Cruise Line Sojourn 458 0 1
Royal Caribbean Group Royal Caribbean Int. Navigator of the Seas 3,386 27 25 Radiance of the Seas 2,466 i 0 1Brilliance of the Seas 2,543 1 0 1 Celebrity Cruises Celebrity Eclipse 2,852 3 0
Celebrity Millennium 2,218 1 0Celebrity Solstice 2,852 7 0Celebrity Summit 2,218 0 1 The walt Disney Company Disney Cruise Line Disney Wonder 2,400 7 11 Disney Magic 2,700 1 0
Norwegian Cruise Line Norwegian Cruise Line Norwegian Sun 1,936 1 0 Norwegian Jewel 2,376 0 1
Oceania Cruises MS Regatta 824 1 0
Lindblad Expeditions National Geographic Quest 100 2 0
Venture 100 3 0
Total 113 106
2 Estimate assumes 60% of manifest passengers disembarking and spending $66.39 per passenger. Per passenger spending amount based on Chamber’s 2017 Economic and Fiscal Impacts survey and has not been adjusted for inflation.
Based on the current schedule and assuming 100% occupancy rates, cruise ship wharfage revenues are estimated to total $1634165 in calendar year 2024. Cruise ships will also generate an additional $326,833 in Measure H tax collections during 2024.
Safety or Security Incidents
During the annual pod facility inspection by the United States Coast Guard in July 2023, it wasnoted as an observation that there were long lines of cruise ship passengers waiting to return to the cruise vessel. The City worked closely with cruise ship and tendering operations to address the process inefficiencies which contributed to the longer lines and has since resolved the issue to the Coast Guard’s satisfaction. There were no other safety or security incidents to report in 2023.
GOAL ALIGNMENT: Compliance with reporting requirements
FISCAL IMPACTS: There is no fiscal impact by the recommended action to receive and file.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: N/A
FOLLOW UP ACTION: N/A
ADVERTISING, NOTICE AND PUBLIC CONTACT: Pursuant to the Brown Act.
ATTACHMENTS: N/A
CITY OF AVALON CITY COUNCIL
MEETING DATE: December 12, 2023 AGENDA ITEM: 1
ORIGINATING DEP: Public Works CITY MANAGER: ànc
PREPARED BY: Jamie Hmielak, Maintenance Superintendent
SUBJECT: Authorization to procure various process analyzers for WWTP.
RECOMMENDED ACTION(S): (1) Make the affirmative finding that the Hach Company has satisfied the sole source requirement as specified in the Avalon Municipal Code Section 3-
4.111(b). (2) Authorize PERC Water to procure various process analyzing equipment from Hach Company for the Wastewater Treatment Plant (VWVTP) (3) Allocate funds from Sewer Fund 108- 25-6552 for the procurement in the amount of not to exceed S89,900.
REPORT SUMMARY: PERC Water maintains the City’s WWFP, and is requesting to procure various process analyzing equipment for the plant from Hach Company. The efficient and reliable operation of the treatment plant is essential to ensuring the environmental health and safety of our community. The proposed equipment includes chlorine probes & controllers, dissolved oxygen (D.C.) probes & controllers, and turbidity probes & controllers.
The wastewater treatment plant plays a crucial role in treating and purifying the city’s wastewater before it is released back into the environment. To maintain the plant’s effectiveness, it is imperative to invest in state-of-the-art process analyzers. These analyzers will provide real-time data and control capabilities for key parameters, ensuring optimal plant performance. Hach Company will also be providing a service agreement, installation, training and a warranty covering all equipment. The scope of equipment is as follows.
1. Chlorine Probes and Controllers:
• Chlorine monitoring is essential for disinfection purposes in wastewater treatment.
• The proposed probes and controllers will enable accurate and continuous monitoring of chlorine levels, allowing for timely adjustments to ensure compliance with environmental regulations.
2. Dissolved Oxygen (D.O.) Probes and Controllers:
• Monitoring dissolved oxygen levels is critical for the biological treatment processes in the plant.
• The D.C. probes and controllers will provide precise measurements, allowing for the adjustment of aeration rates to optimize biological treatment efficiency.
3. Turbidity Probes and Controllers:
• Turbidity is a key indicator of water clarity and the effectiveness of the treatment processes.
• The proposed turbidity probes and controllers will enable real-time monitoring, facilitating prompt responses to any deviations in water clarity and ensuring the quality of the treated effluent.
Real-time data from the analyzers will enable proactive adjustments, leading to improved treatment efficiency and reduced operational costs, Accurate monitoring of key parameters ensures that the wastewater treatment plant consistently meets and exceeds environmental regulations. By investing in advanced analyzers, we contribute to minimizing the environmentalimpact of our wastewater discharge, promoting sustainability.
Avalon Municipal Code (AMC) Section 3-4.106 (b) requires purchases of goods, services, supplies and equipment with a value over S25,000 be a publically noticed low bid procurement.
However, AMC Section 3-41 11(b) allows the City to dispense with bidding if there is only one source for the procurement (sole source) or when the City makes the determination that the purchase can be made more economically and/or efficiently without bidding procedures. In thiscase, Hach Company is the exclusive supplier of the proposed equipment in our region. It is recommended that the City Council approve the procurement of the analyzing equipment from Hach Company for the WWtP and authorize the allocation of funds for the project from theEmergency Repair Sewer Fund a cost not to exceed $89,900. Additional funds were included to account for tax & shipping of the equipment.
GOAL ALIGNMENT: Infrastructure reliability and safety.
FISCAL IMPACTS: A cost not to exceed of $89900. Sufficient funds exist in FY 23-24 Sewer Fund 108-25-6552.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: PERC Water will not have the proper equipment to effectively monitor wastewater data which could create compliance issues with the State Water Board leading to potential violations and fines.
FOLLOW UP ACTION:. Authorize PERC Water to procure the process analyzing equipment from
ADVERTISING, NOTICE AND PUBLIC CONTACT: This item was properly listed on the posted agenda pursuant to the Brown Act.
ATTACHMENTS: PERC Water Additional Services Request Form, and quotes from Hach Equipment.
Additional Services Request Form
Project Name
Hach Equipment Installation and Service
(3percwafer —
ntci 51:110
Ailditronal Services Project NUnit Emergency
2023-08
Operator Field Tech Field Tech Field Tech Field Tech 2 $ 1 Regular 1 OT 2 Regular OT
Part Quanity
1 1
1 6t
Materials
Chorine Probes and Controllers
o.o. probes and Controllers
Turbidity Probes and ontrciiers
Senjice Agreement, Startup,Training and Warranty
Unit Cost Unit Price
$19,915.80
$17,926.50
$18,730.20
$7,566.00
SubTotal
1O0/ Markup
Total
SubTotal
l’.aterials
15% Markup
Total Sub Contractor Cost
PROJEa TOTAL P
Extended Price
$ 18,730.20
$
19,915,80
17,926.50
7,56&.O0—
fl138.50,J $6,413.85
$70, 5 52 35
Extended Price
Process Analyzers
Task Description
Add Description
Manager
Project
Position Position Position Position Position Position
Quote Date
10/ 27/2 3
Sum Of Project Cost
Extended Price
Vendor
Hach
Hach
Hach
Mach
rota! Hours 0.00 0.00 0.00 0.00 0.00 0.00 Hourly Rate $261.00 $139.00 $116.00 $174.00 $116.00 $174.00 Estimated PERcLaborCost $0.00 $0.00 $0.00 50.00 $0.00 $0.00 $0.00 Sub-Contractor Cost 1a’se ette that cS55t9 u n,ts4 c’5 n Sc: ereu,,d ;e It qsete. sa! y ww te ,Uca In rca’s a*;cc ta cardscr!a tries tate.t‘r —
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Quotation
note Number: 10096406 lvi
e quote number at time of order to ensure
at you receive prices qi:oted
HachPD Box 508
Loveland, Co 80539-0608Phone: (800) 227-4224
Email: [email protected]
Website: www.hach.com
uotc Date: 27-Sep-2023
ERC WATER CORP
7520 NEWHOPE ST STE 180
OUNTAIN VALLEY, CA 92708lame: Dave West
hone: 00
Quote Expiration: 26-Nov-2023
mail: [email protected]
istomer Account Number :267258
ties Contact: David Bumpass Email: [email protected] Phone: 909-552-5031 •<.t: ..:....:.. .::‘:. ••.
PftICING QUOTATION
I:rrnmN
LXV45B,99.13022 CtTlOscTotal Chlorine Analyzerv.dth pHD Differentia: Sensor 2 6,235.80 12,471.6CLXVS2S 99E1151 SC4500 Controller, Prognosys, 5x rnAOutput, 2 digital Sensors, 100-240 VAC, . 2 3 129 30’ 6 258 6C IJS pug. Standard lead time 5 days. —
.LL LEAD TIMES ARE ESTIMATED AND NOT GUARANTEED.
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purchases ot Hach company products and/or services are expressly and without tim tattoo ubjact to Heat, Contpany’s Terms & Conditions of Sate (“Hacti TCS”), incorporated rain by ra/er&nce and published on Hach Company’s webs/ia at wee, bar S rain/terms, Hach ICC are contained directly and/or by reference to tiach’s otter, order as knowiedqn,ent, ‘C ,t’i’’ in n,’ ,dn,, , ,ijb is
as ana
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Quotation
uote Number: 100964065v1
e quote number at time of order to ensure
at you receive prices quoted
uute Date: 2?-Sep-202] Quote Expiration: 26-Nov-2023
Hach
P0 Box 608
Loveland,Phone:
Em a if:
Website:
CC 80539-0608
(800) 227-4224
[email protected]
ERC WATER CORP
7520 NEWHOPE ST STE 180
OUNTAIN VALLEY, CA 92708Fame: Dave West
hone: DO
mail: [email protected]
sterner Account Number:267258
ties Contact: David Bumpass Email: [email protected] Phone: 909-552-5031 •m••
Lxv445.99.30112 TU5 Series5 TUS300sc Low Range Laser Turbidimeter with Automatic I Cleaning, EPA Version. Standard lead time Jo days. 3 3509.301 10,527.90 LXVS2S.99E11551 5C4500 Controller, Prognosys, Sx mA Output, 2 digital Sensors, 100-240 VAC, U5 plug- Standard lead timeS days. 3 3,129.30 9,387.90
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,LL LEAD TIMES ARE ESTIMATED AND NOT GUARANTEED.
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purchases of lash company products andfor aervicet are oxpreasty and without umitatlon oublect to tiach company’s Terms & Condtttons oC Sate ‘Hach Tcs’ ncort’orated Quotation
uote Number: 100964059v1
quote oimber at time of order In ensure
a you reUie prices quoted
uotc Date: 27-Sep-2023 Quote Exsfration: 26-Nov-2023
HoUr
PD Box 608Loveland, COPhone:
Email:
We bsite:
80539-3608
(800) 227-4224
[email protected]
www.hacb.com
ERC WATER CORP1520 Nt-VVHOPE Si STE 180
DUNTAIN VALLEY, CA 92708
ame: Dave West
hone: 00mail: [email protected] Account Nttnther :267258 ties Contact: David Bumpass Email: david.bumpass@hachcom Phone; 909-5525031 -
?RICING QUOTATION -
t1LThIT
WarrantyPius Service Agreement includes instrument start-up, all parts, labor, and travel for on-site repairs) 1 on-site calibration per year, WRTUPGCLTIOSC factory recommended maintenance (including required ports), unhrnited 2 1,469.00 2,938.00 technical support calls, and free firmware updates. Coverage does notinclude the sc200 or optional pH probe. — Preventative Maintenance Partnership includes travel and labor br two pMp-sC4sOD-2v on-site preventative maintenance/calibration/certification visits per 8 181.00 1,44800 year and unltmtted pnonty techntcal support. Factory recommended number of visits per year is one.
Field Service Partnership provides full coverage, including one on-site FSPLDO2 annual preventative maintenance/calibration service and probe 3 454,00 1,362.00 replacement upon failure.
WarrantyPlus Service Agreement includes one on-site start-up orpreventative maintenance/calibration visit per year, all parts, labor, and WRTUPGTUS3XX -1 VISIT travel for on-site repairs, unlimited technical support calls, and free 3 606.00 1,818,00 firmware updates. Automatic Cleaning Module is not covered under this offering. N
-----
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.
Quotation
uote Number: 100964062v1
-e quote number at tare ol order to ensureat you receice nr’cvsquotcd uote Date: 27—Sep-2023 Quote Expiration: 26-Nov-2023
HachPD Box 608
Loveland.Phone:
Email:
Websit 0:
CD 80539-0608
(800) 227-4224
[email protected]
www. hach corn
ERC WATER CORP
7520 NEWHOPE ST STE 180
OUNTAFN VALLEY, CA 92708
lame: Dave West
hone: 00
mail: [email protected]
istomer Account Number :267258
las Contact: David Bumpass Email: [email protected] Phone: 909-552-5031
PRICING QUOTATION
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9020000 Hach LDO so Model 2, DO Probe with Luminescent Dissolved Oxygen 2,846.20 8,538.60 Technology. Standard lead time 5 days.Lxv525.S9E1ISS1 SC4SOO Controller, Progr,osys. 5x mA Output, 2 digItal Sensors, 100-240 VAC, 3 3,129.30 9,387.9 US plug. Standard lead t,me 5 days. r— — ewTiT4np•
.LL LEAD TIMES ARE ESTIMATED AND NOT GUARANTEED,
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reight; Ground Prepay and Add rCA: Hach’s facility
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I purchases of I-Itch company products andIor servIces are expressly and wIthout lImitation attbJrr,l to Had, company’s lernis & conditions of Sale (“Hach lOS”), Incorporated HACH COMPANY I r1oiw’, f)’i PC 3ox 7.S; ,rerc. Coic’: 53 P 97( 3 5O F The Sole Authorized Manufacturer and Direct Distributor Letter 11/21/2023
Customer Name: City of Avalon
Customer Address:
Customer City, State, Zip: Avalon, CA
Customer Account Number:
Item(s): Description(s):
This Fetter is to confirm that Hach Company is the sole authorized manufacturer and direct distributor of the item/items listed above.
Thank you for your interest in Hach Company Products. If we can he of further assistance, please contact us at 1-800-227-4224.
Thank you
RE: SOLE SOURCE LETTER — I lach Brand InstrumentsBach Brand Prod ucts — I nstrtnn cnts and (Them strv: Brands to include, but not Ii in ited to:
Other Hach Brands
Evita, CLI, Bach, Homeland SecurityTechnologies, OPS Systems, ORBISPHERE, POLYMETRON, 51gm-a ANATEL, Dr. Lange, Environmental Test Strips, Evita, GEl, IlIAC, Homeland SecurityTechnologies, Hydrolab, IQ Scientific Instruments, Lachat Instruments, Leica Microsystems, Marsh-McBiiney, MET ONE, OPS Systems, ORBISPHERE, OTT, Hydrometry, POLYMETRON, Radiometer Analytical, Sea-Bird Electronics, Sigma, WET Labs, Hach WIMS, CLAROS Collect
Thank you for your interest in Hach Company products. This letter is to advise that Flach Compan is the sole source manufacturer and distributor for all Rack branded instrumentation and chemistry. This excludes all resell items. such as glassware, measuring spoons, brushes, and other general lab accessories. Any software or firmware additions or alterations must be purchased directly from I lach (‘ompan
CITY OF AVALON CITY COUNCIL
MEETING DATE: December 12, 2023 AGENDA ITEM:
ORIGINATING DEP: Administration CITY MANAGER:________
PREPARED BY: David Maistros. City Manager
SUBJECT: First Reading of an Ordinance Amending Title 2, Chapter 2-2, Section 2-2.307 City Manager Powers and Duties of the AvalonMunicipal Code RECOMMENDED ACTION(S): Introduce and waive the all further readings of an ordinance of the City of Avalon amending Title 2, Chapter 2-2, Section 2-2.307 City Manager Powers and Duties of the Avalon Municipal Code.
REPORT SUMMARY: City Staff recommend amending Title 2, Chapter 2-2, Section 2-2.307 of the Avalon Municipal Code (AMC) to broaden the powers of the City Manager to include appointment, removal, promotion and demotion of the office of the City Clerk.
As written, the AMC exempts the office of the City Clerk as the position is appointed by resolution of the City Council. City Staff recommend reorganizing the structure of the office of the City Clerk to have the office report directly to the City Manager rather than the City Council. With this proposed amendment the City Manager will provide oversight of the City Clerk’s Office.
The office of the City Clerk is administrative in nature with the City Clerk providing oversight of public records requests, compliance with various governmental regulations, including annualreporting to the FPPC and citywide records management. The City Clerk also acts as the local elections official.
In recent history, the City Clerk position has been a dual title held in conjunction with the City Manager or Chief Administrative Officer. At this time, the City does not have a permanent and dedicated City Clerk. Duties of the City Clerk Office are shared divided between a Deputy CityClerk/Senior Administrative Assistant and Management Analyst.
Additionally, Staff are taking this opportunity to further amend the ordinance to make it gender neutral when referencing the City Manager.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: The Avalon Municipal Code will not be amended.
FOLLOW UP ACTION: Adoption of the Ordinance at the next regular City Council meeting.
ADVERTISING, NOTICE AND PUBLIC CONTACT: This item was properly listed on the posted agenda pursuant to the Brown Act.
ATTACHMENTS: Ordinance.
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF AVALON AMENDING
TITLE 2, CHAPTER 2-2, SECTION 2-2.307 CITY MANAGER
POWERS AND DUTIES OF THE AVALON MUNICIPAL
CODE
WHEREAS, Article 3 of Chapter 2 of title 2 of the City of Avalon Municipal Code (AMC) creates the office of the City Manager and also defines the powers and duties of the City Manager; and,
WHEREAS, the office of City Clerk is appointed by resolution of the City Council; and
WHEREAS, the City wishes to broaden powers of the City Manager by amending the AMC to include appointment, removal, promotion and demotion of the office of the City Clerk; and
WHEREAS, the City Manager will provide oversight to the office of the City Clerk and will oversee compliance with federal, state, and local regulations; and WHEREAS, the City wishes to now amend its Municipal Code.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AVALON DOES ORDAIN AS FOLLOWS:
Section 1. The recitals set forth above are hereby adopted as the findings of the CityCouncil in connection with the adoption of this Ordinance.
Section 2. Avalon Municipal Code Section 2-2307 is amended to read as follows (new language is underlined, removed language is struck):
2-2.307 City Manager Powers and Duties.
The City Manager shall be the administrative head of the government of the City under the direction and control of the Council. He/She shall also be responsible for the efficient administration of all the affairs of the City which are under his control. In addition to his/her general powers as administrative head of all City departments, and not as a limitation thereon, he/she shall also have the following powers and duties:
(a) Law Enforcement. To enforce all the laws and ordinances of the City and to see that all franchises, contracts, permits, and privileges granted by the Councilare faithfully observed; (b) Authority over Employees. To control, order, and give directions to all heads of departments and subordinate officers and employees of the City under his/her jurisdiction through their department heads;
6505900000\41 755375.1
(c) Power of Appointment and Removal. To appoint, remove, promote, and demote any and all officers and employees of the City except the City—Cleric1City Attorney, City Treasurer, and any other position subject to appointment and removal by the Council as set forth in any resolution of the Council, subject, however, to the rules and regulations of the Civil Service Commission, if such Commission exists;
(d) Reorganization of Officers. To recommend to the Council such reorganization of offices, positions, departments, or units under his/her direction, as may be indicated in the interests of the efficient, effective, and economical conduct of the City’s business;
(e) Ordinances. To recommend to the Council for adoption such measures and ordinances as he/she deems necessary or expedient;
(f) Attendance at Council Meetings. To attend all meetings of the Council, unless excused therefrom, except when his/her removal is under consideration; (g) Financial Reports. To keep the Council at all times fully advised as to the financial conditions and needs of the City;
(h) Budget. To prepare and submit the proposed annual budget and the proposed annual salary plan, to the Council for its approval;
(i) Purchasing Agent. To be responsible for the purchases of all supplies for all the departments or divisions of the City, as provided in Chapter 3-4 of Title 3 of this Code. No expenditure shall be submitted or recommended to the Council except upon a report and approval by the City Manager.
(j) Investigations. To make investigations into the affairs of the City, and any department or division thereof, and any contract or the proper performance of any obligation of the City.
(k) Public Utilities: Franchises. To investigate all complaints in relation to matters concerning the administration of the City government and in regard to the services maintained by public utilities in the City and to see that all franchises and permits granted by the City are faithfully performed and observed; (I) Public Properties. To exercise general supervision over all public buildings, public parks, and other public properties, which are under the control and jurisdiction of the Council;
(m) Hours of Employment. Unless otherwise provided in his/her employment agreement, to devote his/her entire time to the duties of his office in the interests of the City; and
65059.00000\41 755375.1
(n) Additional Duties. To perform such other duties and exercise such other powers as may be delegated to him/her from time to time by ordinance, resolution, or other action of the Council.
Section 3. Severability. If any section, subsection, subdivision, sentence, clause, orphrase of this Ordinance, or any part thereof is for any reason held to be unconstitutional, void, or invalid, such decisions shall not affect the validity of the remaining portion of thisOrdinance or any part thereof. The City Council hereby declares that it would have passedeach section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof, irrespective of the fact that any one or more section, subsection, subdivision, paragraph, sentence, clause, or phrase be declared unconstitutional, void, or invalid.
Section 4. CEQA Exemptions. The City Council finds that adoption of this Ordinance is not a project subject to the California Environmental Quality Act (“CEQA”) pursuant toSection 15378 (the activity will not result in a direct or reasonably foreseeable indirectphysical change in the environment) of the State CEQA Guidelines, California Code ofRegulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Additionally, this Ordinance is exempt under CEQA pursuant to Guidelines Section 15061(b)(3) (there exists no possibility that the activity will have a significant adverse effect on the environment) because this Ordinance will not cause a change in any of the physical conditions within the areaaffected by the Ordinance. None of the exceptions to the exemptions found in StateCEQA Guidelines section 15300.2 apply. Staff is hereby directed to prepare, execute and file with the Los Angeles County Clerk a CEQA Notice of Exemption within five (5) working days of the adoption of this Ordinance.
Section 5. Certification. The City Clerk of the City of Avalon shall certify the passageand adoption of this Ordinance and shall cause the same, or a summary thereof, to bepublished and/or posted in the manner required by law.Section 6. Effective Date. This Ordinance shall become effective thirty days from itsadoption.
INTRODUCED at a special meeting of the City Council of the City of Avalon on the l2 day of December, 2023, by the following vote:
AYES:
NAYS:
ABSENT:ABSTAIN:
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Avalon on this 1 6th day of January, 2024, by the following vote:
AYES:
NAYS:
ABSENT:ABSTAIN:
Ann H. Marshall, Mayor
65090004155375.1
ATTEST:
Gabrielle Morones, Deputy City Clerk
APPROVED AS TO FORM:
Scott Campbell
Best Best & Krieger, LLP
65059.00000\4 1755375.1
CITY OF AVALON CITY COUNCIL
MEETING DATE: December 12, 2023 AGENDA ITEM: (9
ORIGINATING DEP: Public Works CITY MANAGER: ..bU1&
PREPARED BY: Robert Greenlaw, Public Works Director
Devin Hart, Management Analyst
SUBJECT: Award Above Ground Fuel Tank Installation and Site Remediation Contract
RECOMMENDED ACTION(S): Authorize the City Manager to negotiate and execute the contract for the above ground fuel tank installation and site remediation project to the lowest, responsible bidder.
REPORT SUMMARY: The State of California requires the owners or operators of specific types of underground fuel storage tanks to permanently close by December 31, 2025. The City of Avalon owns four underground fuel tanks at the Avalon Fuel Dock that fall under this requirement.
With assistance from former Assemblymember Patrick O’Donnell, the City was awarded a $500,000 State budget earmark that is administered through the State of California Water Board to remove the underground fuel tanks located at the fuel dock and install an above ground system in compliance with the new regulations. The granting agreement requires the City to have construction completed and the project closed out by June 30, 2024.
The project is included in the FY22-23 Budget and Capital Improvement Plan — Project Number207004, Account Number 11470-6547 — with S700,000 budgeted.
On March 21, 2023 City Council approved the design and construction documents for thisproject, and authorized Staff to post and receive informal bids to procure the fuel tank for an amount not to exceed $200,000. On June 27, 2023, the City Council awarded a contract to Western Pump fora not-to-exceed amount of $160,000.
As the second component of this project, on August 11, 2023 the City solicited bids by informal bid process from duly licensed and experienced contractors to provide site preparation, grading,concrete foundation, retaining wall installation and related construction services for the new location of the storage tank. After an extension of the bid deadline, bidding closed on August 28, 2023 at 1 pm. Only Jordahl Construction, Inc provided a bid of $274,710 by the stated deadline.
On September 5, 2023 the City Council determined the contract cost was reasonable andawarded the contract to Jordahl Construction by adopting Resolution 23-35 by a 4/5 vote.
On December 1, 2023, City Staff solicited a RFP for the third and final procurement component of this project — above ground fuel tank installation, removal of existing underground storage tanks, and site remediation. The REP for this scope of work closes on December 11, 2023 at 3:00 pm., the day before the City Council meeting. At the time this report was authored, 13 firms had accessed the REP via the City’s website — www.cityotavaloncorn/rfp.
Staff will provide proposals submitted under separate cover, including a cost analysis and otherrelevant information.
Time is of the essence as this project must have construction completed and project closed out by June 30, 2024.
GOAL ALIGNMENT: City Infrastructure. Reduction of high-risk facilities.
FISCAL IMPACTS: Project budgeted in CIP project code 207004 (account 11470-6547).
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: The City may not meet the timeline required by the funding agreement with the State of California Water Board.
FOLLOW UP ACTION: Execute an agreement.
ADVERTISING, NOTICE AND PUBLIC CONTACT: This item was properly listed on the posted agenda pursuant to the Brown Act.
ATTACHMENTS:
• REP
• Proposals will be provided under separate cover
CITY OF AVALON
CONTRACT AND BID DOCUMENTS FOR
UNDERGROUND FUEL TANK
TANK REMOVAL
RELOCATION PROJECT -
AND SITE REMEDIATION
PHASE 3 -
PROJECT NUMBER 207004 - C
410 Avalon Canyon Road
P.O. Box 707
Avalon, California 90704
(310) 510-0220
www.cityofavalon.com
Key Information
Submit Written Questions By: December 8. 2023 at 5 p.m.
Bids Due: December11, 2023 at 3 p.m.
Primary Contact: Robert Greenlaw. P.E..
Director of Public Works
bgreenlawcityofavalon.com
310.510.0220, ext. 129
65059.00000\40059964. I
TABLE OF CONTENTS
Page
0011 16—NOTICE INVITING BIDS 1002113— INSTRUCTIONS TO BIDDERS 40041 43—BID FORMS 1200 52 13— CONTRACT FOR CONSTRUCTION 34 0061 13—BOND FORMS 4000 72 00— GENERAL CONDITIONS 52007313—SPECIAL CONDITIONS 124 TECHNICAL SPECIFICATIONS 125
PLANS AND DRAWINGS 126
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00 1116— NOTICE INVITING BIDS
NOTICE IS HEREBY GIVEN that the City of Avalon with its principal place of business at 410 Avalon Canyon Road, Avalon CA 90704 (“City”) invites and will receive sealed bids (‘Bids’) upto but not later than 3:00 p.m. on December 11, 2023, at the Office of the City Clerk, located at410 Avalon Canyon Road, Avalon, CA 90704 for the furnishing to City of all labor, equipment, materials, tools, services, transportation, permits, utilities, and all other items necessary forUNDERGROUND FUEL TANK RELOCATION PROJECT — Phase Three —TANK REMOVAL AND SITE REMEDIATION (“Project”). At said time, Bids will be publicly opened and read aloud.
Bids received after said time shall be returned unopened. Bids shall be valid for a period of 90 calendar days after the bid opening date.
The City of Avalon is requesting bids from duly licensed and experienced contractors to provide services for the removal of an existing underground fuel storage tank and site remediation as the final step of the City’s Underground Fuel Tank Relocation Project (Project #207004).
Included for consideration is a project site plan and specification documents. If there are significant deviations from the provided site and specification documents please site thosedeviations specifically.
Bids must be submitted on City’s Bid Forms. Bidders may obtain a copy of the ContractDocuments from www.cityofavalon.com/rfp, 410 Avalon Canyon Road, Avalon, CA 90704, 310.510.0220, ext. 129. To the extent required by section 20103.7 of the Public Contract Code,upon request from a contractor plan room service, City shall provide an electronic copy of the Contract Documents at no charge to the contractor plan room.It is the responsibility of each prospective Bidder to download and print all Contract Documents for review and to verify the completeness of Contract Documents before submitting a bid. Any addenda will be posted on www.cityofavalon.com/rfp. It is the responsibility of each prospective Bidder to check www.cityofavalon.com/rfp on a daily basis through the close of receiving bids for any applicable addenda or updates. City does not assume any liability or responsibility based on any defective or incomplete copying, excerpting, scanning, faxing, downloading or printing of the Contract Documents. Information on www.cityofavalon.com/rlp may change without notice toprospective Bidders. The Contract Documents shall supersede any information posted or transmitted by www.cityofavalon.com/rfp.
Each Bid shall be accompanied by cash, a certified or cashier’s check, or bid bond secured from a surety company satisfactory to the City, the amount of which shall not be less than ten percent(10%) of the submitted Total Bid Price, made payable to City of Avalon as bid security. The bid security shall be provided as a guarantee that within ten (10) days after City provides thesuccessful Bidder the Notice of Award, the successful Bidder will enter into a contract and providethe necessary bonds and certificates of insurance. The bid security will be declared forfeited ifthe successful Bidder fails to comply within said time. No interest will be paid on funds deposited with City.
A Pre-Bid Conference will not be scheduled. Any interested bidders may schedule an appointmentwith the Director of Public Works to view the work location. The Department of Public Works will compile a list of all questions received from the prospective bidders asked during the viewingappointments and share the information will all potential bidders.
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The successful Bidder will be required to furnish a faithful performance bond and a labor and material payment bond each in an amount equal to one hundred percent (100%) of the ContractPrice. Each bond shall be in the forms set forth herein, shall be secured from a surety company that meets all State of California bonding requirements, as defined in California Code of Civil Procedure Section 995.120, and that is a California admitted surety insurer.Pursuant to Section 22300 of the Public Contract Code of the State of California, the successful Bidder may substitute certain securities for funds withheld by City to ensure its performance under the Contract.
Pursuant to Labor Code Section 1773, City has obtained the prevailing rate of per diem wages and the prevailing wage rate for holiday and overtime work applicable in Los Angeles County from the Director of the Department of Industrial Relations for each craft, classification, or type ofworker needed to execute this contract. A copy of these prevailing wage rates may be obtainedvia the internet at: www.dir.ca.ciovldlsr/ In addition, a copy of the prevailing rate of per diem wages is available at City’s Public Works and shall be made available to interested parties upon request. The successful Bidder shall post acopy of the prevailing wage rates at each job site. It shall be mandatory upon the Bidder to whom the Contract is awarded, and upon any subcontractors, to comply with all Labor Code provisions,which include but are not limited to the payment of not less than the said specified prevailing wage rates to all workers employed by them in the execution of the Contract, employment of apprentices, hours of labor and debarment of contractors and subcontractors.
Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. No Bid will be accepted nor any Contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work. If awarded a contract, the Bidder and its subcontractors, of any tier, shall maintain active registration with the Department of IndustrialRelations for the duration of the Project. Notwithstanding the foregoing, the contractor registrationrequirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to workperformed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. In bidding on this Project, it shall be the Bidder’s sole responsibility to evaluate andinclude the cost of complying with all labor compliance requirements under this Contract and applicable law in its Bid.
Unless otherwise provided in the Instructions to Bidders, each Bidder shall be a licensed contractor pursuant to sections 7000 et seq. of the Business and Professions Code in the followingclassification(s) throughout the time it submits its Bid and for the duration of the Contract: A, B,C-8, C-34, and/or HAZ.Substitution requests shall be made within 35 calendar days after the award of the Contract.
Pursuant to Public Contract Code Section 3400(b), City may make findings designating that certain additional materials, methods or services by specific brand or trade name other than thoselisted in the Contract Documents be used for the Project. Such findings, if any, as well as thematerials, methods or services and their specific brand or trade names that must be used for the Project may be found in the Special Conditions.
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City shall award the contract for the Project to the lowest responsive, responsible Bidder as determined by City from the BASE BID ALONE. City reserves the right to reject any or all Bids or to waive any irregularities or informalities in any Bids or in the bidding process.
For further information, contact Robert Greenlaw, Public Works Director at [email protected], or 310.510.0220, ext, 129.
END OF NOTICE INVITING BIDS
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002113- INSTRUCTIONS TO BIDDERS
ARTICLE 1. SECURING DOCUMENTS
Bids must be submitted to City on the Bid Forms which are a part of the Contract Documents for the Project. Contract Documents may be obtained as specified in the Notice Inviting Bids.
Prospective Bidders are encouraged to telephone in advance to determine the availability of Contract Documents, Any charge for the Contract Documents is stated in the Notice Inviting Bids.
City may also make the Contract Documents available for review at one or more plan rooms, asindicated in the Notice Inviting Bids. Please Note: Prospective Bidders who choose to review theContract Documents at a plan room must contact City to obtain the required Contract Documentsif they decide to submit a Bid for the Project.
ARTICLE 2. EXAMINATION OF SITE AND CONTRACT DOCUMENTS
At its own expense and prior to submitting its Bid, each Bidder shall visit the site of the proposedwork and fully acquaint itself with the conditions relating to the construction and labor required sothat the Bidder may fully understand the work, including but not limited to difficulties and restrictions attending the execution of the work under the Contract. Each Bidder shall carefully examine the Drawings, and shall read the Specifications, Contract, and all other documents referenced herein and made part of the Contract Documents. Each Bidder shall also determine the local conditions which may in any way affect the performance of the work, including local taxstructure, contractors’ licensing requirements, availability of required insurance, the prevailing wages and other relevant cost factors, shall familiarize itself with all federal, state and local laws,ordinances, rules, regulations and codes affecting the performance of the work, including the costof permits and licenses required for the work, and shall make such surveys and investigations, including investigations of subsurface or latent physical conditions at the site or where work is tobe performed as may be required. Bidders are responsible for consulting the standardsreferenced in the Contract Documents. The failure or omission of any Bidder to receive or examine the Contract Documents, forms, instruments, addenda, or other documents, or to visit the site and acquaint itself with conditions there existing shall in no way relieve any Bidder from any obligation with respect to its Bid or to the Contract and no relief for error or omission will begiven except as required under state law. The submission of a Bid shall be taken as conclusiveevidence of compliance with this Article.
ARTICLE 3. INTERPRETATION OF DRAWINGS AND DOCUMENTS
Prospective Bidders unclear as to the true meaning of any part of the Drawings, Specifications or other Contract Documents may submit a written request for interpretation. The prospective Bidder submitting the request is responsible for prompt delivery. Interpretation of the Drawings,Specifications or other Contract Documents will be made only by a written addendum duly issuedand a copy of such addenda will be mailed or delivered to each prospective Bidder who has purchased a set of Contract Documents. The City will not be responsible for any other explanation or interpretations of the Contract Documents. If a prospective Bidders becomes aware of anyerrors or omissions in any part of the Contract Documents, it is the obligation of the prospective Bidder to promptly bring it to the attention of the City.
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ARTICLE 4. PRE-BID CONFERENCE
A Pre-Bid Conference will not be scheduled. Any interested bidders may schedule an appointment with the Director of Public Works to view the work location. The Department of Public Works will compile a list of all questions received from the prospective bidders asked during the viewing appointments and share the information will all potential bidders.
ARTICLE 5. ADDENDAThe City reserves the right to revise the Contract Documents prior to the bid opening date.
Revisions, if any, shall be made by written addenda. All addenda issued by the City shall be made part of the Contract Documents. Pursuant to Public Contract Code Section 4104.5, if the City issues an addendum which includes material changes to the Project less than 72 hours prior to the deadline for submission of Bids, the City will extend the deadline for submission of Bids.
The City may determine, in its sole discretion, whether an addendum warrants postponement of the Bid submission date. Each prospective Bidder shall provide the City a name, address, email address, and facsimile number to which addenda may be sent, as well as a telephone number by which the City can contact the Bidder. Copies of addenda will be furnished by email, facsimile,first class mail, express mail or other proper means of delivery without charge to all parties who have obtained a copy of the Contract Documents and provided such current information. PleaseNote: Bidders are responsible for ensuring that they have received any and all addenda. To this end, each Bidder should contact the Public Works Department to verify that it has received alladdenda issued, if any, prior to the Bid opening. The Bidder shall indicate the addenda received prior to bidding in the space provided in the Bid Forms. Failure to indicate all addenda may be sufficient cause for rejecting the Bid.
ARTICLE 6. ALTERNATE BIDS
If alternate bid items are called for in the Contract Documents, the time required for completion of the alternate bid items has already been factored into the Contract duration and no additionalContract time will be awarded for any of the alternate bid items. The City may elect to includeone or more of the alternate bid items, or to otherwise remove certain work from the Project scopeof work. Accordingly, each Bidder must ensure that each bid item contains a proportionate shareof profit, overhead, and other costs or expenses which will be incurred by the Bidder.
ARTICLE 7. COMPLETION OF BID FORMS
Bids shall only be prepared using copies of the Bid Forms which are included in the ContractDocuments. The use of substitute Bid Forms other than clear and correct photocopies of those provided by the City will not be permitted. Bids shall be executed by an authorized signatory asdescribed in these Instructions to Bidders. In addition, Bidders shall fill in all blank spaces(including inserting “N/A” where applicable), and initial all interlineations, alterations, or erasures to the Bid Forms. Bidders shall neither delete, modify, nor supplement the printed matter on the Bid Forms nor make substitutions thereon. Use of black or blue ink, indelible pencil, or a typewriter is required. Deviations in the Bid Forms may result in the Bid being deemed nonresponsive.ARTICLE 8. MODIFICATIONS OF BIDS Each Bidder shall submit its Bid in strict conformity with the requirements of the ContractDocuments. Unauthorized additions, modifications, revisions, conditions, limitations, exclusions UNDERGROUND FUEL TANK RELOCATION ..5 002113— INSTRUCTIONS TO BIDDERSPROJECT — Phase III — TANK REMOVAL,
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or provisions attached to a Bid may render it non-responsive and may cause its rejection. Bidders shall not delete, modify, or supplement the printed matter on the Bid Forms, or make substitutionsthereon. Oral, telephonic and electronic modifications will not be considered.
ARTICLE 9. SUBCONTRACTORS
Bidder shall set forth the name, address of the place of business, contractor license number, and public works contractor registration number of each subcontractor who will perform work, labor, furnish materials or render services to the bidder on said contract and each subcontractor licensed by the State of California who, under subcontract to bidder, specially fabricates and installs aportion of the work described in the Contract Documents in an amount in excess of one half of one percent (0.5%) of the total bid price, and shall indicate the portion of the work to be done bysuch subcontractor in accordance with Public Contract Code section 4104. Notwithstanding the foregoing, if the work involves the construction of streets and highways, then the Bidder shall listeach subcontractor who will perform work or labor or render service to the Bidder in or about thework in an amount in excess of one-half of one percent (0.5%) of the Bidder’s Total Bid Price or $1 0,000, whichever is greater. If a Bidder fails to specify a subcontractor or if a Bidder specifiesmore than one subcontractor for the same portion of work, then the Bidder shall be deemed tohave agreed that it is fully qualified to perform that portion of work and that it shall perform thatportion itself. Substitution of listed subcontractors shall only be permitted in accordance withPublic Contract Code section 4107.
ARTICLE 10. LICENSING REQUIREMENTS
Pursuant to Business and Professions Code Section 7028.15 and Public Contract Code Section 3300, all Bidders must possess proper licenses for performance of this Contract. Subcontractorsmust possess the appropriate licenses for each specialty subcontracted. Pursuant to Business and Professions Code Section 7028.5, the City shall consider any Bid submitted by a Bidder not currently licensed in accordance with state law and pursuant to the requirements found in theContract Documents to be nonresponsive, and the City shall reject the Bid. The City shall have the right to request, and Bidders shall provide within ten (10) calendar days, evidence satisfactoryto the City of all valid license(s) currently held by that Bidder and each of the Bidder’ssubcontractors, before awarding the Contract.
Notwithstanding anything contained herein, if the Project involves federal funds, the Contractor shall be properly licensed by the time the Contract is awarded, pursuant to the provisions of PublicContract Code section 20103.5.
ARTICLE 11. BID SECURITY (BOND)
Each Bid shall be accompanied by: (a) cash; (b) a certified or cashier’s check made payable to the City; or (c) a bid bond secured from a surety company satisfactory to the City, the amount ofwhich shall not be less than ten percent (10%) of the Total Bid Price, made payable to the City as bid security. Personal sureties and unregistered surety companies are unacceptable. The surety insurer shall be California admitted surety insurer, as defined in Code of Civil Procedure Section 995.120. The bid security shall be provided as a guarantee that within ten (10) calendar daysafter the City provides the successful Bidder the Notice of Award, the successful Bidder will enter into a Contract and provide the necessary bonds and certificates of insurance. The bid security will be declared forfeited if the successful Bidder fails to comply within said time, and the City may enter into a Contract with the next lowest responsible bidder providing a responsive bid, or maycall for new bids. No interest shall be paid on funds deposited with the City. The City will return UNDERGROUND FUEL TANK RELoCATION 6 002113— INSTRUCTIONS TO BIDDERSPROJECT — Phase III — TANK REMOVAL!INSTALLATION AND SITE REMEDIATION 6505900000\40059964. I
the security accompanying the Bids of all unsuccessful Bidders no later than sixty (60) calendar days after award of the Contract.
ARTICLE 12. IRAN CONTRACTING ACT OF 2010
In accordance with Public Contract Code Section 2200 et seq., the City requires that any person that submits a Bid with the City of one million dollars ($1,000,000) or more, certify at the time the Bid is submitted that the person is not identified on a list created pursuant to subdivision (b) ofPublic Contract Code Section 2203 as a person engaging in investment activities in Iran described in subdivision (a) of Public Contract Code Section 2202.5, or as a person described in subdivision(b) of Public Contract Code Section 2202.5, as applicable.
The form of such Iran Contracting Certificate is included with the Bid Forms and must be signedand dated under penalty of perjury.
ARTICLE 13. NONCOLLUSION DECLARATION
Bidders on all public works contracts are required to submit a declaration of noncollusion with their Bid. This form is included with the Bid Forms and must be signed and dated under penaltyof perjury.
ARTICLE 14. PUBLIC WORKS CONTRACTOR DIR REGISTRATION CERTIFICATION Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. No Bid will be accepted nor any Contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work. If awarded a contract, the successfulBidder and its subcontractors, of any tier, shall maintain active registration with the Department of Industrial Relations for the duration of the Project. To this end, Bidder shall sign and submit with its Bid the Public Works Contractor DIR Registration Certification on the form provided, attesting to the facts contained therein. Failure to submit this form may render the Bid nonresponsive. In addition, each Bidder shall provide the registration number for each listedsubcontractor in the space provided in the Designation of Subcontractors form.
ARTICLE 15. BIDDER INFORMATION AND EXPERIENCE FORM
Each Bidder shall complete the questionnaire provided herein and shall submit the questionnaire along with its Bid. Failure to provide all information requested within the questionnaire along with the Bid may cause the Bid to be rejected as non-responsive. The City reserves the right to rejectany Bid if an investigation of the information submitted does not satisfy the City that the Bidder is qualified to properly carry out the terms of the Contract.ARTICLE 16. WORKERS’ COMPENSATION CERTIFICATION In accordance with the provisions of Labor Code Section 3700, Contractor shall secure the payment of compensation to its employees. Contractor shall sign and file with the City a Workers Compensation Certificate prior to performing the work under this Contract. The form of such Workers’ Compensation Certificate is included as part of the Bid Forms.
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ARTICLE 17. SIGNING OF BIDS
All Bids submitted shall be executed by the Bidder or its authorized representative. Bidders may be asked to provide evidence in the form of an authenticated resolution of its Board of Directors or a Power of Attorney evidencing the capacity of the person signing the Bid to bind the Bidder toeach Bid and to any Contract arising therefrom.
If a Bidder is a joint venture or partnership, it may be asked to submit an authenticated Power of Attorney executed by each joint venturer or partner appointing and designating one of the joint venturers or partners as a management sponsor to execute the Bid on behalf of Bidder. Only that joint venturer or partner shall execute the Bid. The Power of Attorney shall also: (1) authorize that particular joint venturer or partner to act for and bind Bidder in all matters relating to the Bid; and (2) provide that each venturer or partner shall be jointly and severally liable for any and all of the duties and obligations of Bidder assumed under the Bid and under any Contract arisingtherefrom. The Bid shall be executed by the designated joint venturer or partner on behalf of the joint venture or partnership in its legal name.
ARTICLE 18. SUBMISSION OF SEALED BIDS
Once the Bid and supporting documents have been completed and signed as set forth herein, they shall be placed, along with the bid security and other required materials, in a sealedenvelope, addressed and delivered or mailed, postage prepaid, to the Public Works Departmentof the City before the time and day set for the receipt of bids. The envelope shall bear the title ofthe work and the name of the Bidder. No oral or telephonic bids will be considered. No forms transmitted via the internet, e-mail, facsimile, or any other electronic means will be considered unless specifically authorized by the City as provided herein. Bids received after the time and day set for the receipt of bids shall be returned to the Bidder unopened. The envelope shall alsocontain the following in the lower left-hand corner thereof:Bid of (Bidder’s Name) for the UNDERGROUND FUEL TANK RELOCATION PROJECT — Phase Ill
TANK REMOVAL AND SITE REMEDIATION
Only where expressly permitted in the Notice Inviting Bids may Bidders submit their Bids viaelectronic transmission pursuant to Public Contract Code sections 1600 and 1601. Anyacceptable method(s) of electronic transmission shall be stated in the Notice Inviting Bids. TheCity may reject any Bid not strictly complying with the City’s designated methods for delivery.
ARTICLE 19. OPENING OF BIDSAt the time and place set for the opening and reading of bids, or any time thereafter, each and every Bid received prior to the time and day set for the receipt of bids will be publicly opened and read. The City will leave unopened any Bid received after the specified date and time, and any such unopened Bid will be returned to the Bidder. It is the Bidder’s sole responsibility to ensurethat its Bid is received as specified. Bids may be submitted earlier than the date(s) and time(s) indicated.
The public reading of each Bid will include the following information:
A. The name and business location of the Bidder.
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B. The nature and amount of the bid security furnished by Bidder.
C. The Bid amount.Bidders or their representatives and other interested persons may be present at the opening of the Bids. The City may, in its sole discretion, elect to postpone the opening of the submitted Bids.
The City reserves the right to reject any or all Bids and to waive any informality or irregularity in any Bid.
ARTICLE 20. WITHDRAWAL OF BID
Any Bid may be withdrawn either personally or by written request, incurring no penalty, at anytime prior to the scheduled closing time for receipt of bids. Requests to withdraw Bids shall beworded so as not to reveal the amount of the original Bid. Withdrawn Bids may be resubmitted until the time and day setfor the receipt of bids, provided that resubmitted Bids are in conformance with the instructions herein.
Bids may be withdrawn after bid opening only by providing written notice to the City within five (5) working days of the Bid opening and in compliance with Public Contract Code section 5100 et seq., or as otherwise may be allowed with the consent of the City.
ARTICLE 21. BIDDERS INTERESTED IN MORE THAN ONE BID
No Bidder shall be allowed to make, file or be interested in more than one Bid for the same workunless alternate Bids are specifically called for. A person, firm or corporation that has submitted a sub-proposal to a Bidder, or that has quoted prices of materials to a Bidder, is not therebydisqualified from submitting a sub-proposal or quoting prices to other Bidders or fromsimultaneously submitting its own Bid as a prime contractor.
ARTICLE 22. SUBSTITUTION OF SECURITY
The Contract Documents call for monthly progress payments for the Work completed. The City will retain a percentage of each progress payment as provided by the Contract Documents. Atthe request and expense of the successful Bidder, the City will substitute securities for the amountso retained in accordance with Public Contract Code Section 22300.ARTICLE 23. PREVAILING WAGESThe City has obtained from the Director of the Department of Industrial Relations the general prevailing rate of per diem wages in the locality in which this work is to be performed for each craft or type of worker needed to execute the Contract. These rates are available at the City or may be obtained online at http://www.dir.ca.gov. Bidders are advised that a copy of these ratesmust be posted by the successful Bidder at the job site(s).
ARTICLE 24. DEBARMENT OF CONTRACTORS AND SUBCONTRACTORS In accordance with the provisions of the Labor Code, contractors or subcontractors may not perform work on a public works project with a subcontractor who is ineligible to perform work on a public project pursuant to Labor Code Sections 1777.1 or 1777.7. Any contract on a public works project entered into between a contractor and a debarred subcontractor is void as a matter of law. A debarred subcontractor may not receive any public money for performing work as a UNDERGROUND FUEL TANK RELOCATION 9 002113—INsTRUCTIONs TO BIDDERSPROJECT — Phase III — TANK REMOVAL,
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subcontractor on a public works contract. Any public money that is paid to a debarred subcontractor by the Contractor for the Project shall be returned to the City. The Contractor shall be responsible for the payment of wages to workers of a debarred subcontractor who has been allowed to work on the Project.
ARTICLE 25. INSURANCE REQUIREMENTS
Prior to commencing work, the successful Bidder shall purchase and maintain insurance as set forth in the General Conditions.ARTICLE 26. PERFORMANCE BOND AND PAYMENT BOND REQUIREMENTSThe successful Bidder will be required to furnish a labor and material payment bond and a faithful performance bond each in an amount equal to one hundred percent (100%) of the Contract Price.Each bond shall be secured from a surety company that meets all State of California bondingrequirements, as defined in California Code of Civil Procedure Section 995.120 and is admitted by the State of California. Each bond shall be accompanied, upon the request of the City, with all documents required by California Code of Civil Procedure Section 995.660 to the extent required by law. All bonding and insurance requirements shall be completed and submitted to the City within ten (10) calendar days from the date the City provides the successful bidder with the Notice of Award.
ARTICLE 27. SALES AND OTHER APPLICABLE TAXES, PERMITS, LICENSES AND FEES Contractor and its subcontractors performing work under this Contract will be required to payCalifornia sales tax and other applicable taxes, and to pay for permits, licenses and fees requiredby the agencies with authority in the jurisdiction in which the Work will be located, unless otherwise expressly provided by the Contract Documents.
ARTICLE 28. FILING OF BID PROTESTS
Bidders may file a protest of a Bid with the City’s City Clerk’s Office. In order for a Bidder’s protest to be considered valid, the protest must:
A. Be filed in writing within five (5) calendar days after the bid opening date or any City determination or recommendation regarding the Bidder’s bid, as applicable; B. Clearly identify the specific irregularity or accusation; C. Clearly identify the specific City staff determination or recommendation being protested; D. Specify in detail the grounds for protest and the facts supporting the protest; andE. Include all relevant, supporting documentation with the protest at time of filing.If the protest does not comply with each of these requirements, the City may reject the protest without further review.
If the protest is timely and complies with the above requirements, the City’s City Clerk, or other designated City staff member, shall review the protest, any response from the challenged Bidder(s), and all other relevant information. The City Clerk will provide a written decision to the UNDERGROUND FUEL TANK RELOCATION 10 002113—INSTRUCTIONS TO BIDDERSPROJECT — Phase III —TANK REMOVAL,
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protestor.
The procedure and time limits set forth in this Article are mandatory and are the sole and exclusive remedy in the event of a Bid protest. Failure to comply with these procedures shall constitute a failure to exhaust administrative remedies and a waiver of any right to further pursue the bid protest, including filing a Government Code Claim or legal proceedings.
ARTICLE 29. BASIS OF AWARD; BALANCED BIDThe City shall award the Contract to the lowest responsible Bidder submitting a responsive Bid.The lowest Bid will be determined on the basis of the Base Bid Price.The City may reject any Bid which, in its opinion when compared to other Bids received or to the City’s internal estimates, does not accurately reflect the cost to perform the work. The City mayreject as non-responsive any Bid which unevenly weights or allocates costs, including but notlimited to overhead and profit to one or more particular bid items.
ARTICLE 30. AWARD PROCESSOnce all Bids are opened and reviewed to determine the lowest responsible Bidder submitting a responsive Bid, the City Council may award the Contract. The apparent successful Bidder shouldbegin to prepare the following documents: (1) the performance bond; (2) the payment bond; and (3)the required insurance certificates and endorsements. Once the City notifies the Bidder of theaward, the Bidder will have ten (10) calendar days from the date of this notification to execute theContract and supply the City with all of the required documents and certifications. Once the Cityreceives all of the properly drafted and executed documents and certifications from the Bidder, the City will issue a Notice to Proceed to that Bidder.ARTICLE 31. EXECUTION OF CONTRACTAs required herein the Bidder to whom an award is made shall execute the Contract in the amount determined by the Contract Documents. The City may require appropriate evidence that thepersons executing the Contract are duly empowered to do so. The Contract and bond forms tobe executed by the successful Bidder are included within these Contract Documents and shallnot be detached.
ARTICLE 32. QUESTIONS
Questions regarding this Notice Inviting Bids and Instruction to Bidders may be directed to Robert Greenlaw, Public Works Director at 310.510.0220, ext. 128 or email [email protected]. No other members of the City’s staff or City Council should be contacted about this procurement during the bidding process. Any and all inquiries and comments regarding this Bid must be communicated in writing, unless otherwise instructed by the City. The City may, in its sole discretion, disqualify any Bidder who engages in any prohibitedcommunications.
UNDERGROUND FUEL TANK RELOCATION -11- 002113— INSTRUCTIONS TO BIDDERSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.000(II)\40059964. I
00 41 43— BID FORMS
BID
Bids will be received at City otAvalon City Hall, 410 Avalon Canyon Road, Avalon, CA 90704 until 3 p.m. on Monday, November 27, 2023
UNDERGROUND FUEL TANK RELOCATION PROJECT—
Phase Ill - TANK REMOVAL, INSTALLATION AND SITE REMEDIATION NAME OF BIDDER:_______________________________________
To the City of Avalon, with its principal place of business at 410 Avalon Canyon Road, P.O. Box707, Avalon, CA 90704.
A. In response to the Notice Inviting Bids dated November 15, 2023 and in accordance with the accompanying Instructions to Bidders, the undersigned hereby proposes tothe City to furnish all labor, technical and professional services, supervision, materials and equipment, other than materials and equipment specified as furnished by the City, and to perform all operations necessary and required to construct the Project inaccordance with the provisions of the Contract Documents and any addenda thereto,and at the prices stated opposite the respective items set forth in the Bid Schedule.
B. This Bid constitutes a firm offer to the City which cannot be withdrawn for 90 calendar days after the date set for opening of bids, or until a Contract is executed by the Cityand a third party, whichever is earlier.
C. The undersigned certifies that it has examined and is fully familiar with all of the provisions of the Contract Documents and any addenda thereto; that it has carefully checked all of the words and figures shown in its Bid Schedule; that it has carefullyreviewed the accuracy of all statements in this Bid and attachments hereto; and that itunderstands and agrees that the City will not be responsible for any errors or omissions on the part of the undersigned in preparing this Bid.
D. If awarded a Contract, the undersigned agrees to execute and deliver to the City within ten (10) calendar days after date of receipt of Notice of Award, a signed Contract andthe necessary performance bond, payment bond, and certificates of insurance andendorsements.
E. The following Bid Forms, which have been completed and executed by the undersigned Bidder, are incorporated by this reference and made a part of this Bid:
1. Bid Schedule
2. Bid security in the amount of not less than 10% of the Total Bid Price.3. Completed Designation of Subcontractors form.
UNDERGROUND FUEL TANK RELOCATION -12- OD 41 43—BID FORMSPROJECT — Phase III — TANK REMOVAL,INsTALLATION AND SITE REMEDIATION 6505 9.00000\40050964.1
4. Fully executed Noncollusion Declaration form.
5. Completed Iran Contracting Act Certification form.
6. Completed Public Works Contractor DIR Registration Certification form.
7. Completed Contractor’s Certificate Regarding Workers’ Compensation form.
8. Completed Bidder Information and Experience Form.
F. Bidder is an individual
or corporation
or partnership
organized under the laws of the State of
G. The undersigned is hereby representing that it is and will be properly licensed both at the time that it submits a Bid as well as at the time the Contract is awarded, if the Contract is awarded to the undersigned.
1. Individual Contractor. Undersigned certifies that it is now licensed in accordance with the provisions of the Contractor’s License Law of the State of California.
License number______________________________________________ Expiration date_______________________________________________ License classification__________________________________________
1. Joint Venture. Undersigned certifies that the individual members of the joint venture are now licensed in accordance with the provisions of the Contractor’s License Law of the State of California.
Member No. 1
Name
License number______________________________________________Expiration date____________________________________________ License classification__________________________________________ Member No. 2
NameLicense number___________________________________________Expiration date_______________________________________________License classification__________________________________________ UNDERGROUND FUEL TANK RELOCATION 13 0041 43—BID FORMSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.00000\40059964 I
(If there are more than two members of the joint venture, attach a page for the additional member(s) with the above information.)
The undersigned acknowledges receipt, understanding, and full consideration of the following addenda to the Contract Documents:
Addenda No.
[SIGNATURE ON NEXT PAGE]
UNDERGROUND FUEL TANK RELOCATION -14- 0041 43— BID FORMS PROJECT — Phase III — TANK REMO\JAL,INSTALLATION AND SITE REMEDIATION O5059 00000\40059964. I
I hereby certify under penalty of perjury under the laws of the State of California that all of the information submitted in connection with this Bid and all of the representations made herein are true and correct.
BIDDER: Bidder’s Business Address:
(Company Name)
By
(Signature)
(Type or print name)
(Title)(Where signed) (City, State)
(corporate seal)
Dated:________________ 20
State of Incorporation:________________________
Names and addresses of all partners or joint venturers:
Statement of the authority of signatory to bind Bidder:
UNDERGROUND FUEL TANK RELOCATION -15- 0041 43—BID FORMSPROJECT Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 6505900000\40059964. I
BID SCHEDULE
UNIT OF EST.
NO. ITEM DESCRIPTION MEASURE OTY. UNIT PRICE ITEM COST
1. LS 1 Mobilization
2. Site Preparation/Clearing LS 13. Excavation L5 1
4. Tank Removal LS 1
5. Backfill CY 150
6. Concrete Slab Replacement SqFt 2000
BASE BID (BID ITEMS # 1-7) TOTAL S
The basis for award of contract shall be the Contractor’s Base Bid only.
TOTAL BID PRICE BASED ON BID SCHEDULE
$
Total Base Bid in Numbers
The costs for any work shown or required in the Contract Documents, but not specifically identified as a bid line item are to be included in the related bid line items and no additional compensation shall be due to Contractor for the performance of the work.
All blank spaces appearing above must be filled in. Failure to fill in any blank spaces may renderthe Bid non-responsive. In case of discrepancy between the Unit Price and Item Cost set forth for a unit basis item, the Unit Price shall prevail and be utilized as the basis for determining the lowest responsive, responsible Bidder. However, if the amount set forth as a Unit Price is ambiguous, unintelligible or uncertain for any cause, or is omitted, or is the same amount as the entry in the Item Cost column, then the amount set forth in the Item Cost column for the item shallprevail and shall be divided by the estimated quantity for the item and the price thus obtainedshall be the Unit Price.
For purposes of evaluating Bids, the City will correct any apparent errors in the extension of unit prices and any apparent errors in the addition of lump sum and extended prices.
The estimated quantities for Unit Price items are for purposes of comparing Bids only and the City makes no representation that the actual quantities of work performed will not vary from the UNDERGROUND FUEL TANK RELOCATION -16- 0041 43—BiD FORMSPROJECT — Phase III — TANK REMOVAL,
INSTALLATION AND SITE REMEDIATION
65 05 9. (i0000\4005 9964 1
estimates. Final payment shall be determined by the City from measured quantities of work performed based upon the Unit Price.
The undersigned agrees that this Bid Schedule constitutes a firm offer to the City which cannot be withdrawn for the number of calendar days indicated in the Notice Inviting Bids from and after the bid opening, or until a Contract for the work is fully executed by the City and a third party, whichever is earlier.
If the Contract Documents specify alternate bid items, the City can choose to include any, all, or none of the alternate bid items in the Work. If the City selects any of the alternate bid items, thecorresponding alternate bid prices shall be added to or deducted from Base Bid Price for the work.
The City can award/select alternate bid items at any time(s).
Name of Bidder
SignatureName and TitleDated
UNDERGROUND FUEL TANK RELOCATION -17- 0041 43— BID FORMSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.00000\40059964. I
BID SECURITY
BID BOND
[Note: Not required when other form of Bidder’s security, e.g. cash, certified check or cashier’s check, accompanies Bid.]
The makers of this bond are,
as
Principal, and , as Surety
and are held and firmly bound unto the City of Avalon, with its principal place of business at 410 Avalon Canyon Road, P.O. Box 707, Avalon, CA 90704, hereinafter called the City, in the penal sum of TEN PERCENT (10%) OF THE TOTAL BID PRICE of the Principal submitted to the City for the work described below, for the payment of which sum in lawful money of the United States,well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that whereas the Principal has submitted the accompanying bid dated
20 , for UNDERGROUND FUEL TANK
RELOCATION PROJECT — Phase III — TANK REMOVAL, INSTALLATION AND SITE RE MEDIATION.If the Principal does not withdraw its Bid within the time specified in the Contract Documents; andif the Principal is awarded the Contract and provides all documents to the City as required by the Contract Documents; then this obligation shall be null and void. Otherwise, this bond will remainin full force and effect.Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents shall affect its obligation under this bond, and Surety does hereby waive notice of any such changes.
In the event a lawsuit is brought upon this bond by the City and judgment is recovered, the Surety shall pay all litigation expenses incurred by the City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and expenses.
IN WITNESS WHEREOF, the above-bound parties have executed this instrument under their several seals this
day of
20 , the name and corporate seal of
each corporation.(Corporate Seal)
Contractor! Principal
By
Title
(Corporate Seal) Surety
By
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate) Title_________________________________ UNDERGROUND FUEL TANK RELOCATION -18- 0041 43—BID FORMSPROJECT — Phase III — TANK REMOVAL,
INSTALLATION AND SITE REMEDIATION
65059.00000\40059964. I
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIACOUNTY OF
On
20, before me,
Notary Public, personally
appeared
who proved to me on the basis of satisfactory
Name(s) of Signer(s)
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged tome that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/theirsignature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraphis true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the in formation below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document,
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT LI IndividualLI Corporate Officer — Title(s) — Title or Type of DocumentLI Partner(s) Limited LI General Number of Pages
LI Attorney-In-FactLI Trustee(s)LI Guardian/Conservator Date of DocumentLI Other:Signer is representing:Name Of Person(s) Or Entity(ies) - - signer(s) Other Than Named Above NOTE: This acknowledgment is to be completed for Contractor/Principal.
UNDERGROUND FUEL TANK RELOCATiON 19 0041 43—BiD FORMSPROJECT — Phase ill — TANK REMOVAL, INSTALLATiON AND SITE REMEDiATION
65059.00000\40059964. I
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIACOUNTY OF On
20, before me,
Notary Public, personally
appeared
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacityes), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executedthe instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT fl Individual
ECorporate Officer
Title(s) Title or Type of Document
DPartner(s) E Limited
E General Number of Pages
Attorney-In-Fact
E Trustee(s)
jJ Guardian/Conservator Date of Documentfl Other:Signer is representing:Name Of Person(s) Or Entity(ies) Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of-Attorney to local representatives of the bonding company must also be attached.
END OF BID BOND
UNDERGROUND FUEL TANK RELOCATION 20 0041 43— BiD FORMS
PROJECT — Phase Ill — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.00(I0O\40059964. I
DESIGNATION OF SUBCONTRACTORS
The subcontractor listed below will perform work or labor or render service to the successful Bidder in or about the construction of the work or improvement, or are subcontractors licensed by the State of California who will, under subcontract to the successful Bidder, specially fabricateand install a portion of the work or improvement according to detailed drawings contained in the Contract Documents, in an amount in excess of one-half of one percent (1/2 of 1%) of the Bidder’s total bid. Notwithstanding the foregoing, if the work involves the construction of streets and highways, then the Bidder shall list each subcontractor who will perform work or labor or render service to the Bidder in or about the work in an amount in excess of one-half of one percent (0.5%) of the Bidder’s Total Bid Price or $10,000, whichever is greater. No additional time shall begranted to provide the below requested information.
In compliance with the Subletting and Subcontracting Fair Practices Act Chapter 4 (commencing at Section 4100), Part 1, Division 2 of the California Public Contract Code, the Bidder shall set forth below:
(a) The portion of the work to be done by the subcontractor; (b) The name and the location of the place of business;(c) The California contractor license number; and(d) The DIR public works contractor registration number.
If a Bidder fails to specify a subcontractor or if a Bidder specifies more than one subcontractor for the same portion of work, then the Bidder shall be deemed to have agreed that it is fully qualifiedto perform that portion of work and that it shall perform that portion itself.
Portion of CSLB DIR
Work to be Name of Location of Contractor Registration
done by Subcontractor Business License No. Number
Subcontractor
UNDERGROUND FUEL TANK RELOCATION -21- 0041 43— BID FORMSPROJECT — Phase Two — NEW TANK FOUNDATION
AND RETAINING WALL
65059.00004000964.1
Portion of CSLB DIR
Work to be Name of Location of Contractor Registration
done by Subcontractor Business License No. Number
Subcontractor
(Attach additional sheets if necessary)Name of Bidder__________________ Signature
Name and TitleDated
UNDERGROUND FUEL TANK RELOCATION -22- 0041 43—BID FORMSPROJECT — Phase Two — NEW TANK FOUNDATION
AND RETAINING WALL
65059.00000\40059964. I
BIDDER INFORMATION AND EXPERIENCE FORM
A. INFORMATION ABOUT BIDDER
(Indicate not applicable (“N/A”) where appropriate.)NOTE: Where Bidder is a joint venture, pages shall be duplicated and information provided for all parties to the joint venture.
1.0 Name ofBidder:
2.0 Type, if Entity: 3.0 Bidder Address:
Telephone Number
Email Address
4.0 How many years has Bidder’s organization been in business as a Contractor?
5.0 How many years has Bidder’s organization been in business under its present name? 5.1 Under what other or former names has Bidders organization operated?_____________________________________________________
6.0 If Bidder’s organization is a corporation, answer the following:
6.1 Date of Incorporation:6.2 State of Incorporation:
6.3 President’s Name:6.4 Vice-President’s Name(s):6.5 Secretary’s Name:6.6 Treasurer’s Name:
UNDERGROUND FUEL TANK RELOCATION 23 0041 43—BID FORMSPROJECT — Phase Two — NEW TANK FOUNDATION
AND RETAINING WALL
65059.00000\40059964. I
7.0 If an individual or a partnership, answer the following:
7.1 Date ofOrganization: 7.2 Name and address of all partners (state whether general or limited partnership):
8.0 If other than a corporation or partnership, describe organization and name principals:
9.0 List other states in which Bidder’s organization is legally qualified to do business.
10.0 What type of work does the Bidder normally perform with its own forces?
11.0 Has Bidder ever failed to complete any work awarded to it? If so, note when, where, and why:
12.0 Within the last five years, has any officer or partner of Bidder’s organization ever been an officer or partner of another organization when it failed to complete a contract? If so, attach a separate sheet of explanation:
UNDERGROUND FUEL TANK RELOCATION -24- 0041 43—BID FORMSPROJECT — Phase Two — NEW TANK FOUNDATION
AND RETAINING WALL
65059.00000\40059964. I
13.0 List Trade References:
14.0 List Bank References (Bank and Branch Address):
15.0 Name of Bonding Company and Name and Address of Agent:
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
UNDERGROUND FUEL TANK RELOCATION 25 0041 43—BID FORMSPROJECT — Phase Two — NEW TANK FOUNDATION
AND RETAINING WALL
6505900000\40059964. I
B. LIST OF CURRENT PROJECTS (BACKLOG)
[Duplicate page if needed for listing additional current projects.] Project Client Reference Description of Completion Date Cost of Bidder’s (agency Bidder’s Work Work
name/contact
info)
UNDERGROUND FUEL TANK RELOCATION 26 0041 43—BID FORMSPROJECT — Phase Two — NEW TANK FOUNDATION
AND RETAINING WALL
6505900000\40059964 I
C. LIST OF COMPLETED PROJECTS — LAST THREE YEARS
[Duplicate page if needed for listing additional completed projects.] Please include only those projects which are similar enough to demonstrate Bidder’s ability to perform the required work on the Project.
Project Client Reference Description of Completion Date Cost of Bidder’s (agency Bidder’s Work Work
n a me/contact
info)
UNDERGROUND FUEL TANK RELOCATION 27 0041 43— BID FORMSPROJECT — Phase Two — NEW TANK FOUNDATION
AND RETAINING WALL
65059.00000\40059964. I
D. EXPERIENCE AND TECHNICAL QUALIFICATIONS QUESTIONNAIRE Personnel:
The Bidder shall identify the key personnel to be assigned to this project in a management,construction supervision or engineering capacity.
1. List each person’s job title, name and percent of time to be allocated to this project:
2. Summarize each person’s specialized education:
3. List each person’s years of construction experience relevant to the project:
4. Summarize such experience:
Bidder agrees that personnel named in this Bid will remain on this Project until completion of allrelevant work, unless substituted by personnel of equivalent experience and qualifications approved in advance by the City.
UNDERGROUND FUEL TANK RELOCATION -28 0041 43—BID FORMSPROJEcT — Phase Two — NEW TANK FOUNDATION
AND RETAINING WALL
650590(I(IUO\40059964. I
E. ADDITIONAL BIDDER’S STATEMENTS:
If the Bidder feels that there is additional information which has not been included in the questionnaire above, and which would contribute to the qualification review, it may add that information in a statement here or on an attached sheet, appropriately marked:
Name of Bidder
Signature
Name and TitleDated
UNDERGROUND FUEL TANK RELOCATION 29 DO 41 43—BID FORMSPROJECT— Phase Two— NEW TANK FOUNDATION
AND RETAINING WALL
65059.OO{IOO\40059964. I
NON-COLLUSION DECLARATION
The undersigned declares:
I am the
of
the party making the
foregoing Bid.The Bid is not made in the interest of, or on behalf of, any undisclosed person, partnership,company, association, organization, or corporation. The Bid is genuine and not collusive or sham. The Bidder has not directly or indirectly induced or solicited any other Bidder to put in a false or sham bid. The Bidder has not directly or indirectly colluded, conspired, connived, or agreed with any Bidder or anyone else to put in a sham bid, or to refrain from bidding. The Bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the Bid Price of the Bidder or any other Bidder, or to fix anyoverhead, profit, or cost element of the Bid Price, or of that of any other Bidder. All statements contained in the Bid are true. The Bidder has not, directly or indirectly, submitted his or her Bid Price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid, and has not paid, and will not pay, any person or entity for such purpose.
Any person executing this declaration on behalf of a Bidder that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration onbehalf of the Bidder.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on [date], at
[city],
[state].
Name of Bidder
SignatureName and Title
Dated
UNDERGROUND FUEL TANK RELOCATION -30- 0041 43—BID FORMSPROJECT — Phase Two — NEW TANK FOUNDATION
AND RETAINING WALL
6505’) 00000\40059964. I
IRAN CONTRACTING ACT CERTIFICATION.
(Public Contract Code section 2200 et seq.)
As required by California Public Contract Code Section 2204, the Contractor certifies subject to penalty for perjury that the option checked below relating to the Contractor’s status in regard to the ran Contracting Act of 2010 (Public Contract Code Section 2200 etseq.) is true and correct:
fl The Contractor is not:
(1) identified on the current list of person and entities engaged in investment activities in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code Section 2203; or (2) a financial instruction that extends, for 45 days or more, credit in the amount of $20,000,000 or more to any other person or entity identified on the current list ofpersons and entities engaging in investment activities in Iran prepared by theCalifornia Department of General Services in accordance with subdivision (b) ofPublic Contract Code Section 2203, if that person or entity uses or will use the credit to provide goods or services in the energy sector in Iran.
Li The City has exempted the Contractor from the requirements of the Iran Contracting Act of 2010 after making a public finding that, absent the exemption, the City will be unable to obtain the goods and/or services to be provided pursuant to the Contract.
LI The amount of the Contract payable to the Contractor for the Project does not exceed $1,000,000.
Signature:Printed Name:______________________________________ Title:_________________________________________________ Firm Name:____________________________________Date:________________________________________________ Note: In accordance with Public Contract Code Section 2205, false certification of this form shallbe reported to the California Attorney General and may result in civil penalties equal to the greater of $250,000 or twice the Contract amount, termination of the Contract and/or ineligibility to bid oncontracts for three years.
UNDERGROUND FUEL TANK RELOCATION -31- 0041 43— BID FORMSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.00000\40059964,
PUBLIC WORKS CONTRACTOR REGISTRATION CERTIFICATION
Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. See http://www.dir.ca.gov/Public Works/PublicWorks.html for additional information.
No bid will be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work.
Bidder hereby certifies that it is aware of the registration requirements set forth in Labor Code sections 1725.5 and 1771.1 and is currently registered as a contractor with the Department of Industrial Relations.1
Name of Bidder:__________________________________
DIR Registration Number:____________________________DIR Registration Expiration:___________________________ Small Project Exemption: Yes or No
Unless Bidder is exempt pursuant to the small project exemption, Bidder further acknowledges:
1. Bidder shall maintain a current DIR registration for the duration of the project.
2. Bidder shall include the requirements of Labor Code sections 1725.5 and 1771.1 in its contract with subcontractors and ensure that all subcontractors are registered at the time of bid opening and maintain registration status for the duration of the project.
3. Failure to submit this form or comply with any of the above requirements may result in a finding that the bid is non-responsive.
Name of Bidder
Signature
Name and TitleDated
11f the Project is exempt from the contractor registration requirements pursuant to the small project exemption under Labor code sections 1725,5 and 1771.1, please mark “Yes” in response to “Small Project Exemption.” UNDERGROUND FUEL TANK RELOCATION -32- 0041 43—BID FORMSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.00000\40059964. I
CONTRACTOR’S CERTIFICATE REGARDING WORKERS’ COMPENSATION.
I am aware of the provisions of section 3700 of the Labor Code which require every employer tobe insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this Contract.
Name of Bidder
SignatureName and TitleDated
UNDERGROUND FUEL TANK RELOCATION 33 0041 43—BID FORMSPROJECT — Phase III — TANK REMOVAL,
INSTALLATION AND SITE REMEDIATION
6505900000\40059964. I
00 52 13— CONTRACT FOR CONSTRUCTION
This Contract for Construction (“Contract”), No.
is made and entered into this
day
of
by and between the City of Avalon, with its principal place of business at 410 Avalon Canyon Road, P.O. Box 707, Avalon, CA 90704, sometimes hereinafter called the “City” and [***INSERT***], sometimes hereinafter called “Contractor.” WITNESSETH: That the parties hereto have mutually covenanted and agreed, and by these presents do covenant and agree with each other as follows:
ARTICLE 1. SCOPE OF WORK.The Contractor shall perform all Work within the time stipulated in the Contract, and shall provideall labor, materials, equipment, tools, utility services, and transportation to complete all of the Work required in strict compliance with the Contract Documents as specified in Article 5, below,for the following Project:
UNDERGROUND FUEL TANK RELOCATION PROJECT—
Phase Ill — TANK REMOVAL, INSTALLATION AND SITE REMEDIATION Contractor is an independent contractor and not an agent of the City. The Contractor and its surety shall be liable to the City for any damages arising as a result of the Contractor’s failure tocomply with this obligation.
ARTICLE 2. TIME FOR COMPLETION.Time is of the essence in the performance of the Work. The Work shall be commenced on thedate stated in the City’s Notice to Proceed. The Contractor shall complete all Work required bythe Contract Documents within 45 Days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work.
ARTICLE 3. CONTRACT PRICE.The City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of
Dollars
Payment shall be made as set forth in the General
Conditions. The City will pay to Contractor compensation based upon the prices set forth in theBid Schedule.
ARTICLE 4. LIQUIDATED DAMAGES.
Contractor acknowledges that the City will sustain actual damages for each and every Daycompletion of the Project is delayed beyond the Contract Time. Because of the nature of the Project, it would be impracticable or extremely difficult to determine the City’s actual damages.
Accordingly, in accordance with Government Code section 53069.85, it is agreed that the Contractor will pay the City the sum of $500 for each and every calendar day of delay beyond the UNDERGROUND FUEL TANK RELOCATION 34 005213—CONTRACT FOR CONSTRUCTIONPROJECT — Phase III — TANK REMOVAL,
INSTALLATION AND SITE REMEDIATION
65059 .00000\40 1)59964. I
time prescribed in the Contract Documents for finishing the Work, as liquidated damages and not as a penalty or forfeiture. This Article does not exclude recovery of other damages specified in the Contract Documents. Liquidated damages may be deducted from progress payments due Contractor, Project retention or may be collected directly from Contractor, or from Contractor’s surety. These provisions for liquidated damages shall not prevent the City, in case of Contractor’s default, from terminating the Contractor.
ARTICLE 5. COMPONENT PARTS OF THE CONTRACT.
The ‘Contract Documents” include the following
Notice Inviting BidsInstructions to BiddersBid Forms
BidBid ScheduleBid SecurityDesignation of SubcontractorsInformation Required of Bidders Non-Collusion Declaration FormIran Contracting Act Certification Public Works Contractor DIR Registration CertificationPerformance BondPayment (Labor and Materials) Bond Contract for ConstructionGeneral Conditions
Special ConditionsSpecifications
Addenda
Construction Plans and DrawingsStandard Specifications for Public Works Construction “Greenbook”, latest edition, Except Sections 1-9
Applicable Local Agency Standards and Specifications, as last revised Reference Specifications
Approved and fully executed Change Orders
Permits
Any other documents contained in or incorporated into the Contract The Contractor shall complete the Work in strict accordance with all of the Contract Documents.
All of the Contract Documents are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. In the event of conflict, the various Contract Documents will be given effect in the order set forth in the General Conditions. This Contract shall supersede any prior agreement of the parties.
ARTICLE 6. PROVISIONS REQUIRED BY LAW AND CONTRACTOR COMPLIANCE.
Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of applicable federal, state and local laws, rules and regulations, including, but not UNDERGROUND FUEL TANK RELOCATION 35 0052 13— coNTRAcT FOR CONSTRUCTIONPROJECT — Phase III — TANK REMOVAL,
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limited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Work.
ARTICLE 7. INDEMNIFICATION.
Contractor shall provide indemnification and defense as set forth in the General Conditions.
ARTICLE 8. PREVAILING WAGES.
Contractor shall be required to pay the prevailing rate of wages in accordance with the LaborCode which such rates shall be made available at the City or may be obtained online athttp://www.dir.ca.gov and which must be posted at the job site.
ARTICLE 9. FALSE CLAIMS.
Contractor acknowledges that if a false claim is submitted to the City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that the False Claims Act, California Government Code sections 12650, et seq., provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include withintheir scope false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of the information. In the event the City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorneys’ fees. Contractor hereby acknowledges that the filing of a false claim may the Contractor to anadministrative debarment proceeding wherein Contractor may be prevented from further biddingon public contracts for a period of up to five (5) years. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
UNDERGROUND FUEL TANK RELOCATION -36- 0052 13— CONTRACT FOR CONSTRUCTIONPROJECT— Phase III —TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.O(I(IOI)\40050964. I
IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on the day and year above written.
CITY OF AVALON [***INSERT NAME OF CONTRACTOR***]
[IF CORPORATION, TWO SIGNATURES,PRESIDENT OR VICE PRESIDENT AND By:______________________________ SECRETARY OR TREASURER REQUIRED] [INSERT NAME][INSERT TITLE]
By:________________________________
Its:
ATTEST:
Printed
By:
Name:
[***INSERT****] City Clerk
[DELETE THE FOLLOWING SIGNATURE
LINE IF NOT REQUIRED]
By:__________________________________ APPROVED AS TO FORM:
Its:
By:
Best Best & Krieger LLP Printed
City Attorney Name.
Contractor’s License Number andClassification
DIR Registration Number
(CONTRACTOR’S SIGNATURE MUST BENOTARIZED AND CORPORATE
SEAL AFFIXED, IF APPLICABLE)
UNDERGROUND FUEL TANK RELOCATION 37 0052 13— CONTRACT FOR CONSTRUCTION PROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059000(IO\40059964. I
END OF CONTRACT
UNDERGROUND FUEL TANK RELOCATION 38 0052 13— CONTRACT FOR CONSTRUCTIONPROJECT— Phase III —TANK REMOVAL, INSTALLATION AND SITE REMEDIATtON
65059.00000\40059964 I
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIACOUNTY OF On , 20, before me,
Notary Public, personally
appeared
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
SgnaIure of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT D Individual
ECorporate Officer
Title(s) Title or Type ot Document
flPartner(s) E Limited
n General Number of Pages
Attorn ey-I n-FactflTrustee(s) flGuardian/Conservator Date of DocumentDOther:Signer is representing:
Name Of Person(s) Or EntityQes)
Signer(s) Other Than Named Above
UNDERGROUND FUEL TANK RELOCATION 39 005213— CONTRACT FOR CONSTRUCTIONPROJECT — Phase Ill — TANK REMOVAL,
INSTALLATION AND SITE REMEDIATION
65059.00000\40059964. I
006113—BOND FORMS
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the City of Avalon, with its principal place of business at 410 Avalon Canyon Road, P.O. Box 707, Avalon, CA 90704, (hereinafter referred to as the “City”) has awarded to (hereinafter referred to as the “Contractor”) an agreement for UNDERGROUND FUEL TANK RELOCATION PROJECT — Phase Two — NEW TANKFOUNDATION AND RETAINING WALL -Contract No.207004 B, (hereinafter referred to as the “Project”);
WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated
(hereinafter referred to as
“Contract Documents”), the terms and conditions of which are expressly incorporated herein byreference; and WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereofand to furnish a bond for the faithful performance of said Contract Documents.
NOW, THEREFORE, we, the undersigned Contractor and
as Surety, a corporation organized
and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of
Dollars,
said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs,executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to theirintent and meaning; and shall faithfully fulfill all obligations including the one (1) year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officials,officers, employees, and authorized volunteers, as stipulated in said Contract Documents, thenthis obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As a part of the obligation secured hereby and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees including reasonable attorney’s fees, incurred by the City in enforcing such obligation.As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by the City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship.
UNDERGROUND FUEL TANK RELOCATION -40- 006113— BOND FORMSPROJECT — Phase III — TANK REMOVAL,
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The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure Section 337.15.
Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option:
Take over and complete the Project in accordance with all terms and conditions inthe Contract Documents; or H. Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between suchbidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project! less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the totalamount payable to Contractor by the City under the Contract and any modificationthereto, less any amount previously paid by the City to the Contractor and anyother set offs pursuant to the Contract Documents.
Hi. Permit the City to complete the Project in any manner consistent with California law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including othercosts and damages for which Surety may be liable. The term “balance of thecontract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.
Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the City, when declaring the Contractor in default,notifies Surety of the City’s objection to Contractor’s further participation in the completion of theProject.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performedthereunder shall in any way affect its obligations on this bond, and it does hereby waive notice ofany such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project.
UNDERGROUND FUEL TANK RELOCATION 41 006113—BOND FORMSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 6505900(IO0\40059964. I
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
UNDERGROUND FUEL TANK RELOCATION 42 006113— BOND FORMSPROJECT — Phase III — TANK REMOVAL,
INSTALLATION AND SITE REMEDIATION
65059000{)0\40059964. I
IN WITNESS WHEREOF, we have hereunto set our hands and seals this day of
(Corporate Seal)
(Corporate Seal)
20 Contractor! PrincipalBy
Title
Surety
(Attach Attorney-in-Fact Certificate)
By -
Title
Attorney-in-Fact
The rate of premium on this bond is
charges is $_____________________
per thousand. The total amount of premium
(The above must be filled in by corporate attorney.)
THIS ISA REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)(Name and Address of Agent orRepresentative for service ofprocess in California, if different from above)
(Telephone number of Surety
and Agent or Representative forservice of process in California) UNDERGROUND FUEL TANK RELOCATIONPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 6505900000\40059964. I
-43- 006113—BOND FORMS
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIACOUNTY OF
On , 20_, before me,
Notary Public, personally
appeared
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/theirsignature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT El Individual
Corporate Officer
Title(s) Title or Type of Document
El Partner(s) El Limited
General Numberof Pages
El Attorney-In-Fact
El
Trustee(s)
El Guardian/Conservator Date of DocumentEl Other:Signer is representing:Name 01 Person(s) Or Entity(ies) Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal.
UNDERGROUND FUEL TANK RELOCATION 44 006113— BOND FORMSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059(I(I000\4(I059964. I
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF On , 20, before me,
Notary Public, personally
appeared
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT D Individualu Corporate Officer
Title(s) Title or Type of Document
El Partner(s) Limited
General Number of Pages
El Attorney-In-FactEl Trustee(s)El Guardian/Conservator Date of DocumentEl Other:Signer is representing:Name Of Person(s) Or Entity(ies) - Signer(s) Other Than Named Above NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of Attorney to local representatives of the bonding company must also be attached.
UNDERGROUND FUEL TANK RELOCATION .45.. 006113—BOND FORMSPROJECT— Phase III —TANK REMOVAL.
INSTALLATION AND SITE REMEDIATION
65059.00000\40059964. I
END OF PERFORMANCE BOND
UNDERGROUND FUEL TANK RELOCATION 46- 006113— BOND FORMSPROJECT — Phase III — TANK REMOVAL,
INSTALLATION AND SITE REMEDIATION
65059.00000\40059964. I
PAYMENT BOND (LABOR AND MATERIALS).
KNOW ALL MEN BY THESE PRESENTS:
THAT WHEREAS, the city of Avalon, with its principal place of business at4lO Avalon Canyon Road, P.O. Box 707, Avalon, CA 90704, (hereinafter designated as the “City”), has awarded to (hereinafter designated as the Principal”) an agreement for UNDERGROUND FUEL TANK RELOCATION PROJECT — Phase Two — NEW TANK FOUNDATION AND RETAINING WALL - Contract No.207004 B, (hereinafter referred to as the “Project”);
WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated
(hereinafter referred to as “Contract
Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts dueunder the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.
NOW THEREFORE, we, the Principal and
as Surety, are held
and firmly bound unto the City in the penal sum of
Dollars ($____________
lawful money of the United States of America, for the payment of which sum well and truly to bemade, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Civil Code section 9100, fail to pay for any materials, provisions or other supplies, used in,upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect towork or labor performed under the contract, or for any amounts required to be deducted, withheld,and paid over to the Employment Development Department or Franchise Tax Board from thewages of employees of the contractor and his subcontractors pursuant to Revenue and TaxationCode Section 18663, with respect to such work and labor the Surety or Sureties will pay for thesame, in an amount not exceeding the sum herein above specified, and also, in case suit isbrought upon this bond, all litigation expenses incurred by the City in such suit, includingreasonable attorneys’ fees, court costs, expert witness fees and investigation expenses.
This bond shall inure to the benefit of any of the persons named in Civil Code Section 9100 so asto give a right of action to such persons or their assigns in any suit brought upon this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition,alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining UNDERGROUND FUEL TANK RELOCATION 47 006113— BOND FORMS
PROJECT — Phase III — TANK REMOVAL,
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or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to anyscheme or work of improvement herein above described, nor by any rescission or attemptedrescission or attempted rescission of the contract, agreement or bond, nor by any conditionsprecedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whosebenefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract betweenthe owner or the City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Civil CodeSection 9100, and has not been paid the full amount of his claim.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time,alteration or addition to the terms of the Contract to be performed thereunder, shall in any wayaffect its obligations on this bond, and it does hereby waive notice of any such change, extensionof time, alteration or addition to the terms of Contract, including but not limited to, the provisionsof Sections 2819 and 2845 of the California Civil Code.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this day of
20 (Corporate Seal)
Contractor/ Principal
By_________________________________
Title__________________________________
(Corporate Seal)
SuretyBy
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate) Title____________________________________ UNDERGROUND FUEL TANK RELOCATION -48- 006113—BOND FORMSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.00000\40059964. I
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the I document to which this certificate is attached, and not theL!!uthfulness. accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF On , 20 , before me,
, Notary Public. personally
appeared
_________________________________________
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged tome that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ol Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reatlachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT H Individualfl Corporate Officer
Title(s) Title or type of Document
H Partner(s) H Limited
fl General Number of Pages
H Attorney-In-FactH
Trustee(s)
H Guardian/Conservator Dale of DocumentH Other:Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal.
UNDERGROUND FUEL TANK RELOCATION 49 006113—BOND FORMS
PROJECT— Phase III —TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.Ot)000\40059964. I
Notary Acknowledgment
notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIACOUNTY OF On , 20 , before me,
Notary Public, personally
appeared
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged tome that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/theirsignature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument,
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT H IndividualflCorporate Officer
Title(s) Title or Type of Document
ci Partner(s) ci Limited
ci General Number of Pages
H Attorney-In-Fact
flTrustee(s) H Guardian/Conservator Date of DocumentH Other:Signer is representing:Name Of Person(s) Or Entity(ies) Signer(s) Other Than Narvea Above
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of-Attorney to local representatives of the bonding company must also be attached.
UNDERGROUND FUEL TANK RELOCATION -50- 006113—BOND FORMSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65(t59 (l(tO(l0\40059964. I
END OF PAYMENT BOND
UNDERGROUND FUEL TANK RELOCATION 51 006113— BOND FORMSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.00000\40059964. I
00 72 00— GENERAL CONDITIONS
ARTICLE 1 -TERMS; DEFINITIONS
1.1 Defined Terms.
A. Whenever used in the Contract Documents and printed with initial capital letters, the terms listed below will have the meanings indicated which are applicable to both the singular and plural thereof. In addition to terms specifically defined below, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms.
1. Act of God — An earthquake of magnitude of 3.5 or higher on the Richter scale or a tidal wave.
2. Addenda --Written or graphic instruments issued prior to the submission of Bids which clarify, correct, or change the Contract Documents.
3. Additional Work-- New or unforeseen work will be classified as “Additional Work” when the Engineer determines that it is not covered by the Contract.
4. Applicable Laws -- The laws, statutes, ordinances, rules, codes, regulations, permits, and licenses of any kind, issued by local, state or federal governmental authorities or private authorities with jurisdiction (including utilities), to the extent they apply to the Work.
5. Bid -- The offer or proposal of a Bidder submitted on the prescribed form setting forth the prices and other terms for the Work to be performed.
6. Bid Security --The bid bond, cashier’s check, or certified check to be made by the Bidder, which is to accompany the Bid as a guaranty of good faith to enter into a written contract.
7. Bidder --The individual or entity who submits a Bid directly to the City.
8. Change Order (“CO”) -- A document that authorizes an addition, deletion, or revision in the Work or an adjustment in the Contract Price or the Contract Times,issued on or after the Effective Date of the Contract, in accordance with the Contract Documents and in the form contained in the Contract Documents.
9. Change Order Request (“COR”) -- A request made by the Contractor for an adjustment in the Contract Price andJor Contract Times as the result of aContractor-claimed change to the Work.
10. Contract -- The entire integrated written agreement between the City and Contractor concerning the Work. “Contract” may be used interchangeably with“Agreement’ in the Contract Documents. The Contract supersedes priornegotiations, representations, or agreements, whether written or oral, and includes all Contract Documents.
UNDERGROUND FUEL TANK RELOCATION -52- 007200—GENERAL CONDITIONSPROJECT—Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 6505’) 00000\40059 964. I
11. Contract Documents --The documents listed in Section 00 52 13, Article 5 of the Contract for Construction. Some documents provided by the City to the Biddersand Contractor, including but not limited to reports and drawings of subsurface and physical conditions are not Contract Documents.
12. Contract Price -- Amount to be paid by the City to the Contractor as full compensation for the performance of the Contract and completion of the Work! subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs.
13. Contract Time -- The number of days or the dates stated in the Contract Documents to: achieve defined milestones, if any; and to fully complete the Work.
14. Contractor -- The individual or entity with which the City has contracted for performance of the Work.
15. Critical Supply Shortage --An unusual shortage in materials that is (a) supported by documented proof that Contractor made every effort to obtain such materials from all available sources; (b) such shortage is due to the fact that such materials are not physically available from single or multiple sources or could have beenobtained only at exorbitant prices entirely inconsistent with current and standard rates taking into account the quantities involved and the usual industry practices in obtaining such quantities; and (c) such shortages and the difficulties in obtaining alternate sources of materials could not have been known or anticipated by Contractor at the time it submitted its bid or entered the Contract. Market fluctuations in prices of materials, whether or not resulting from a Force Majeure Event, does not constitute a Critical Supply Shortage.
16. Qy --A calendar day of 24 hours measured from midnight to the next midnight.17. Defective Work--Work that is unsatisfactory, faulty, or deficient; or that does not conform to the Contract Documents; or that does not meet the requirements of anyinspection, reference standard, test, or approval referenced in the Contract Documents.
18. Drawings -- That part of the Contract Documents prepared by of the Engineer of Record which graphically shows the scope, extent, and character of the Work tobe performed by Contractor. Shop Drawings and other Contractor Submittals are not Drawings as so defined.
19. Effective Date of the Contract -- The date indicated in the Contract on which it becomes effective, but if no such date is indicated, it means the date on which theContract is signed and delivered by the last of the two parties to sign and deliver.
20. Engineer--Whenever not qualified, shall mean the City Engineer or the Engineer authorized to act for and in behalf of the City, acting either directly or through properly authorized agents, such agents acting severally within the scope of theparticular duties entrusted to them.
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21. Engineer of Record -- The individual, partnership, corporation, joint venture, or other legal entity that prepares the Drawings.
22. Force Maieure Event --An event that materially affects a party’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the Site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are requiredfor the Work); (4) pandemics, epidemics or quarantine restrictions; (5) strikes and other organized labor action occurring at the Site and the effects thereof on the Work, only to the extent such strikes and other organized labor action are beyond the control of Contractor and its Subcontractors, of every tier, and to the extent theeffects thereof cannot be avoided by use of replacement workers; and (6) a Critical Supply Shortage. For purposes of this section, orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.
23. Hazardous Waste--The term “Hazardous Waste” shall have the meaning provided in Section 104 of the Solid Waste Disposal Act (42 U.S.C. § 6903) as amended from time to time, or any substance or material identified as hazardous under any state or federal statute governing handling, disposal and/or cleanup of any suchsubstance or material, whichever is more restrictive.
24. Holiday — Holidays occur on:
New Year’s Day -January 1Martin Luther King Day — Third Monday in JanuaryPresident’s Day — Third Monday in FebruaryMemorial Day - Last Monday in MayIndependence Day -July 4Labor Day - First Monday in September Veteran’s Day -November 11Thanksgiving Day - Fourth Thursday in November Friday after Thanksgiving
Christmas Eve — December 24Christmas Day -December 25
New Year’s Eve — December 31
If any Holiday listed above falls on a Saturday, Saturday and the preceding Friday are both Holidays. If the Holiday should fall on a Sunday, Sunday and the following Monday are both Holidays.
25. Notice of Award --The written notice by the City to the successful Bidder stating that upon timely compliance by the successful Bidder with the conditions precedent listed therein, the City will sign and deliver the Contract.
26. Notice of Completion --The form which may be executed by the City constituting final acceptance of the Project.
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27. Notice to Proceed --A written notice given by the City to Contractor fixing the date on which the Contractor may proceed with the Work and when the Contract Time will commence to run.
28. Proiect -- The total construction of which the Work to be performed under the Contract Documents, may be the whole, or a part.
29. Record Drawings — The record set of as-builts prepared by the Contractor during the Work in accordance with the requirements of the General Conditions.
30. Recyclable Waste Materials --Materials removed from the Site which are required to be diverted to a recycling center rather than an area landfill. Recyclable Waste Materials include, but are not limited to, asphalt, concrete, brick, concrete block, and rock.
31. Sample -- A physical example furnished by the Contractor to illustrate materials, equipment or workmanship; to establish standards by which the Work will be judged.
32. Schedule of Submittals -- A schedule, prepared and maintained by Contractor, of required submittals and the time requirements to facilitate scheduled performance of related construction activities.
33. Shop Drawings --All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractorand submitted by Contractor to illustrate some portion of the Work.
34. --Lands or areas indicated in the Contract Documents as being furnished by the City upon which the Work is to be performed, including rights-of-way andeasements for access thereto, and such other lands furnished by the City whichare designated for the use of Contractor.
35. Specifications -- That part of the Contract Documents consisting of written requirements for materials, equipment, systems, standards and workmanship as applied to the Work, and certain administrative requirements and proceduralmatters applicable thereto.
36. Subcontractor -- An individual or entity other than a Contractor having a contract with any other entity than the City for performance of any portion of the Work atthe Site.
37. Submittal --Written and graphic information and physical samples prepared and supplied by the Contractor demonstrating various portions of the Work.
38. Supplier--A manufacturer, fabricator, supplier, distributor, material man, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment used in the performance of the Work or to be incorporatedin the Work.
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39. Underground Facilities--All underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities, including those that convey electricity,gases, steam, liquid petroleum products, telephone or other communications,cable television, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems.
40. Unit Price Work --Work to be paid for on the basis of unit prices as provided by the Contractor in its Bid or as adjusted in accordance with the Contract Documents.
41. Warranty --A guarantee provided to the City by the Contractor that the Work will remain free of defects and suitable for its intended use for the period required by the Contract Documents or the longest period permitted by the law of this state, whichever is longer.
42. Work --The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is theresult of performing or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents.
1.2 Terminology.
A. The words and terms below are not defined but, when used in the Contract Documents, have the indicated meaning.
1. The word “furnish,” when used in connection with services, materials, or equipment, shall mean to supply and deliver said services, materials, or equipmentto the Site (or some other specified location) ready for use or installation and in usable or operable condition.
2. The word “install,” when used in connection with services, materials, or equipment, shall mean to put into use or place in final position said services, materials, or equipment complete and ready for intended use.
3. The words “perform” or “provide,” when used in connection with services, materials, or equipment, shall mean to furnish and install said services, materials, or equipment complete and ready for intended use.
4. Regardless of whether “furnish,” “install,” “perform,” or “provide” is used in connection with services, materials, or equipment, an obligation of Contractor is implied.
B. Unless stated otherwise in the Contract Documents, words or phrases that have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning.
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ARTICLE 2 -PRELIMINARY MATTERS
2.1 Delivery of Contract Documents.
A. Within ten (10) Days after receipt of the Notice of Award and before the City will execute the Contract, the Contractor shall furnish and file with the City a signedContract and the necessary performance bond, payment bond, and certificates ofinsurance and endorsements, as well as any other documents specified in theContract Documents.
2.2 Bonds.
A. Contractor shall submit the bonds on the forms provided with the Contract Documents, duly executed by a responsible corporate surety admitted to transact surety business in the State of California, as defined in Code of Civil Proceduresection 995.120, and listed in the United States Department of the Treasury circular entitled “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies,” authorized to do business in the State of California and acceptable to the City conditioned upon the faithful performance by the Contractor of all requirements of the Contract Documents. Each of the bonds shall be in a sum no less than one hundred percent(100%) of the Contract Price. Bonds shall be delivered to the City within ten (10)Days after receipt of the Notice of Award and before execution of the Contract by the City.
2.3 Evidence of Insurance.
A. Prior to commencing any Work but no later than ten (10) Days after receipt of the Notice of Award, the Contractor shall submit or cause to be submitted any and all certificates of insurance and endorsements, showing that the Contractor has therequired insurance, to the attention of the City. Such insurance is to be provided at the sole cost and expense of the Contractor. No Work shall be performed until all ofthe required insurance has been received and approved.
2.4 Execution of the Contract.
A. Upon receipt of the required documents, the City will execute the Contract, establishing the Effective Date of the Contract.
2.5 Contractor’s Failure to Perform.
A. Should Contractor fail to comply with timelines provided above, the City shall retain the right to enforce and collect on the Contractor’s Bid Security, rescind award to the Contractor and award the Contract to the next lowest responsible Bidder providinga responsive Bid as determined by the City. If the City elects to accept bonds andinsurance submitted late, the Contract Time will begin to run as of the date stated in the Notice to Proceed. However, the number of Days beyond the original ten (10) Days it took to receive the properly executed Contract and related items may be deducted from the Contract Time.
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2.6 Commencement of Contract Times: Notice to Proceed.
A. The City will not issue a Notice to Proceed until after the Effective Date of the Contract. Work shall commence within ten (10) Days of the date stated in the Notice to Proceed. The Contract Time begin to run on the date specified in the Notice to Proceed. No Work shall be done at the Site prior to the issuance of the Notice toProceed.
2.7 Copies of Documents.
A. Contractor will be furnished, free of charge, five (5) copies of the Contract Documents. Additional copies may be obtained at cost of reproduction. Contractor shall maintain a clean, undamaged set of Contract Documents, including Submittals,at the Project site.
2.8 Substitution Requests, Schedule of Submittals, and Schedule.
A. Substitution Requests. Within thirty4ive (35) Days of Contract award (unless otherwise specified in the Contract Documents), Contractor shall provide allsubstitution requests as further described in the General Conditions.
B. Schedule of Submittals. Within ten (10) Days after the issuance of the Notice of Proceed (unless otherwise specified in the Contract Documents), Contractor shall submit to the City a Schedule of Submittals that conforms with the requirements of the Contract Documents.
C. Schedule. Within ten (10) Days after the issuance of the Notice of Proceed (unless otherwise specified in the Contract Documents), the Contractor shall submit aconstruction schedule that conforms with the requirements of the Contract Documents.
2.9 Preconstruction Conference; Designation of Authorized Representatives.
A. Before any Work at the Site is started, a conference attended by the City, Contractor, Engineer, and others as appropriate will be held to establish a working understanding among the parties as to the Work and to discuss the schedulesreferred to herein, procedures for handling Submittals and Shop Drawings,processing applications for payment, and maintaining required records. At thisconference the City and Contractor each shall designate, in writing, a specificindividual to act as its authorized representative with respect to the services andresponsibilities under the Contract. Such individuals shall have the authority to transmit instructions, receive information, render decisions relative to the Contract,and otherwise act on behalf of each respective party.
2.10 Subcontractor Mobilization Meetinq.
A. Prior to the start of each major Subcontractor, the Contractor, Subcontractor, and Engineer shall attend a pre-start meeting to discuss the schedule, coordination,procedures, and other administrative issues.
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2.11 Mobilization.
A. When a bid item is included in the Bid Schedule for mobilization, the costs of Work in advance of construction operations and not directly attributable to any specific biditem will be included in the progress estimate. When no bid item is provided formobilization payment for such costs will be deemed to be included in the other items of the Work.
B. Payment for mobilization based on the lump sum provided in the Bid Schedule, shall constitute full compensation for all such Work. The lump sum price provided for mobilization shall not be more than 5% of the Total Bid Price. No payment formobilization will be made until all of the listed items have been completed to the satisfaction of the Engineer. The scope of the Work included under mobilizationshall include, but shall not be limited to, the following principal items:
1. Obtaining and paying for all bonds, insurance, and permits.
2. Moving on to the Project Site of all Contractor’s plant and equipment required for the first month’s operations.
3. Installing temporary construction power, wiring, and lighting facilities, as applicable.
4. Establishing fire protection system, as applicable.
5. Developing and installing a construction water supply, as applicable.6. Providing and maintaining the field office trailers for the Contractor, if necessary, and the Engineer, if specified, complete, with all specified furnishings and utilityservices.
7. Providing on-site sanitary facilities and potable water facilities as specified per Cal OSHA and these Contract Documents.
8. Furnishing, installing, and maintaining all storage buildings or sheds required for temporary storage of products, equipment, or materials that have not yet been installed in the Work. All such storage shall meet manufacturer’s specified storagerequirements, and the specific provisions of the specifications, including temperature and humidity control, if recommended by the manufacturer, and forall security.
9. Arranging for and erection of Contractor’s work and storage yard.
10. Posting all OSHA required notices and establishment of safety programs per Cal OSHA.
11. Full-time presence of Contractor’s superintendent at the job Site as required herein.
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12. Submittal of construction schedule, Submittals, and Shop Drawings as required by the Contract Documents.
ARTICLE 3 -CONTRACT DOCUMENTS; INTENT
3.1 Examination of Drawings. Specifications, and Site of Work.
A. Examination of Contract Documents; Site. Before commencing any portion of the Work, Contractor shall again carefully examine all applicable Contract Documents,the Project Site, and other information given to Contractor as to materials and methods of construction and other Project requirements. Contractor shallimmediately notify the Engineer of any potential error, inconsistency, ambiguity, conflict, or lack of detail or explanation. If Contractor performs, permits, or causesthe performance of any Work which is in error, inconsistent or ambiguous, or notsufficiently detailed or explained, Contractor shall bear any and all resulting costs, including, without limitation, the cost of correction. In no case shall the Contractor or any Subcontractor proceed with Work if uncertain as to the applicable requirements.
B. Additional Instructions. After notification of any error, inconsistency, ambiguity, conflict, or lack of detail or explanation, the Engineer will provide any requiredadditional instructions, by means of drawings or other written direction, necessary for proper execution of Work.
C. Quality of Parts, Construction and Finish. All parts of the Work shall be of the best quality of their respective kinds and the Contractor must use all diligence to inform itself fully as to the required construction and finish.
D. Contractor’s Variation from Contract Document Requirements. If it is found that the Contractor has varied from the requirements of the Contract Documents including the requirement to comply with all Applicable Laws, the Engineer may at any time, before or after completion of the Work, order the improper Work removed, remade or replaced by the Contractor at the Contractor’s expense.
3.2 Intent of Contract Documents.
A. The Contract Documents are complementary; what is required by any one will be binding as if required by all. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be constructed in accordance withthe Contract Documents. Any labor, documentation, services, materials, or equipment that reasonably may be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the indicated result will be provided whether or not specifically called for, at no additional cost to the City.
B. The Contractor shall furnish, unless otherwise provided in the Contract Documents, all materials, implements, machinery, equipment, tools, supplies and labor necessary to the prosecution and completion of the Project. If utilities to equipment/fixtures are not shown but are necessary to operate theequipment/fixtures, the utilities service installation is considered to be part of the UNDERGROUND FUEL TANK RELOCATION 60 007200— GENERAL CONDITIONSPROJECT — Phase III — TANK REMOVAL,
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Work. The implied Work will conform to the appropriate sections of the Contract Documents.
C. Organization of the Contract Documents into divisions, sections, and articles, and arrangement of drawings shall not control the Contractor in dividing Work amongSubcontractors or in establishing the extent of Work to be performed by any trade.
D. Clarifications and interpretations of the Contract Documents shall be issued by the Engineer as provided in these General Conditions.
3.3 Reference Standards.
A. Standards. Specifications, Codes, Laws, and Regulations.
1. Reference to federal specifications, federal standards, other standards, specifications, manuals, or codes of any technical society, organization, orassociation, or to Applicable Laws, whether such reference be specific or byimplication, shall mean the standard, specification, manual, code, or Applicable Laws in effect at the time of opening of Bids (or on the Effective Date of the Contract if there were no Bids), except as may be otherwise specifically stated in the Contract Documents.
2. No provision of any such standard, specification, manual, or code, or any instruction of a Supplier, shall be effective to change the duties or responsibilities of the City, Contractor, or any of their Subcontractors, consultants, agents, or employees, from those set forth in the Contract Documents. No such provision or instruction shall be effective to assign to the City, or any of their officers, directors,members, partners, employees, agents, consultants, or subcontractors, any duty or authority to supervise or direct the performance of the Work or any duty orauthority to undertake responsibility inconsistent with the provisions of the Contract Documents,
3.4 Reporting and Resolving Discrepancies; Order of Precedence.
A. Reporting Discrepancies. The Contract Documents are intended to be fully cooperative and complementary. Before undertaking each part of the Work,Contractor shall carefully study and compare the Contract Documents and check and verify pertinent figures therein and all applicable field measurements.
Contractor shall promptly report in writing to the City any conflict, error, ambiguity, or discrepancy which Contractor discovers, should have discovered, or has actual knowledge of, and shall obtain a written interpretation or clarification from the Citybefore proceeding with any Work affected thereby. If, during the performance of the Work, Contractor discovers any conflict, error, ambiguity, or discrepancy within the Contract Documents, or between the Contract Documents and (i) any ApplicableLaw, (ii) any standard, specification, manual, or code, or (iU) any instruction of anySupplier, then Contractor shall promptly submit a written Request for Information (RFI) to the City. Contractor shall not proceed with the Work affected thereby (exceptin an emergency) until an amendment or supplement to the Contract Documents hasbeen issued by one of the methods indicated in the Contract Documents, and any UNDERGROUND FUEL TANK RELOCATION 61 007200—GENERAL CONDITIONSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059000I)I)\40059964. I
Work performed by Contractor before receipt of an amendment or supplement shall be at Contractor’s own risk.
B. Order of Precedence.
1. In case of conflicts between the Contract Documents, the order of precedence shall be as follows:a. Permits from other agencies as may be required by lawb. Change Orders, most recent first c. Contractd. Addenda, most recent firste. Special Conditions f. Specificationsg. Construction Plans and Drawings(Drawings) h. General Conditionsi. Instructions to Bidders
j. Notice Inviting Bids
k. Contractor’s Bid (Bid Forms)I. Standard Specifications for Public Works Construction “Greenbook” latest edition (Sections 1-9 Excluded)
m. Applicable Local Agency Standards and Specificationsn. Standard Drawings o. Reference Documents
2. With reference to the drawings the order of precedence shall be as follows:
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3. Notwithstanding the orders of precedence established above, in the event of conflicts, the higher standard, higher quality and most expensive shall alwaysapply.
3.5 Amending and Supplementing Contract Documents.
A. The Contract Documents may be amended to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof only by Change Order or written amendment to the Contract duly executed by the parties.
B. The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized at no cost to the City, byone or more of the following ways:
1. The City’s review of a Submittal, Shop Drawing, Sample or substitution request without exception (subject to the provisions of the Contract Documents); or
2. The City’s issuance of a response to an RFI.
C. However, no review or RFI response will reduce or modify the Contractor’s obligation to fully satisfy and comply with the requirements of the Contract Documents.
3.6 Reuse of Documents.
A. Contractor and any Subcontractor or Supplier shall not:
1. Have or acquire any title to or ownership rights in any of the Drawings, Specifications, or other documents (or copies of any thereof) prepared by or bearing the seal of Engineer of Record or its consultants, including electronicmedia editions: or
2. Reuse any such Drawings, Specifications, other documents, or copies thereof on extensions of the Project or any other project without written consent of the City and Engineer of Record and specific written verification or adaptation by Engineerof Record.
B. The prohibitions of this Article will survive final payment or terminalion of the Contract. Nothing herein shall preclude Contractor from retaining copies of theContract Documents for record purposes.
ARTICLE 4-INDEMNIFICATION; INSURANCE
4.1 Indemnification.
A. To the fullest extent permitted by law, Contractor shall immediately defend (with counsel of the City’s choosing), indemnify and hold harmless the City, its officials,officers, employees, agents, and authorized volunteers, and each of them from andagainst:
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1. Any and all claims, demands, causes of action, costs, expenses, injuries, losses or liabilities, in law or in equity, of every kind or nature whatsoever, but not limitedto, injury to or death, including wrongful death, of any person, and damages to ordestruction of property of any person, arising out of, related to, or in any mannerdirectly or indirectly connected with the Work or this Contract, including claimsmade by subcontractors for nonpayment, including without limitation the payment of all consequential damages and attorney’s fees and other related costs andexpenses, however caused, regardless of whether the allegations are false, fraudulent, or groundless, and regardless of any negligence of the City or its officials, officers, employees, agents, or authorized volunteers (including passive negligence), except such loss or damages caused by the sole negligence or willfulmisconduct or active negligence of the City or its officials, officers, employees, or authorized volunteers.
2. Contractor’s defense and indemnity obligation herein includes, but is not limited to damages, fines, penalties, attorney’s fees and costs arising from claims under the Americans with Disabilities Act (ADA) or other federal or state disability access ordiscrimination laws arising from Contractor’s Work during the course ofconstruction of the improvements or after the Work is complete, as the result ofdefects or negligence in Contractor’s construction of the improvements.
3. Any and all actions, proceedings, damages, costs, expenses, fines, penalties or liabilities, in law or equity, of every kind or nature whatsoever, arising out of,resulting from, or on account of the violation of any governmental law or regulation, compliance with which is the responsibility of Contractor.
4. Any and all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense which any of them may incur with respect to the failure, neglect, or refusal of Contractor to faithfullyperform the Work and all of Contractor’s obligations under Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees, incurredby the indemnified parties in any lawsuit to which they are a party.
B. Contractor shall immediately defend, at Contractor’s own cost, expense and risk, with the counsel of the City choosing, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against theCity or its officials, officers, employees, agents, or authorized volunteers. Contractorshall pay and satisfy any judgment, award or decree that may be rendered against the City or its officials, officers, employees, agents, or authorized volunteers, in anysuch suit, action or other legal proceeding. Contractor shall reimburse the City andits officials, officers, employees, agents, and authorized volunteers for any and alllegal expenses and costs incurred by each of them in connection therewith or inenforcing the indemnity herein provided. The only limitations on this provision shall be those imposed by Civil Code section 2782.
C. The provisions of this Article shall survive the termination of this Contract howsoever caused, and no payment, partial payment, or acceptance of occupancy in whole orpart of the Work shall waive or release any of the provisions of this Article.Contractor’s obligation to indemnify the City shall not be restricted to insurance UNDERGROUND FUEL TANK RELOCATION 64 007200— GENERAL CONDITIONSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.00000\40059964. i
proceeds, if any, received by the City and its officials, officers, employees, agents, and authorized volunteers.
4.2 Insurance.
A. General Requirements. The Contractor shall obtain, and at all times during performance of the Work of Contract, maintain all of the insurance described in this Article. Contractor shall not commence Work under this Contract until it has provided evidence satisfactory to the City that it has secured all insurance required hereunder.
Contractor shall not allow any Subcontractor to commence work on any subcontractuntil it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Article. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Contract for cause.
Contractor shall furnish the City with original certificates of insurance and endorsements effective coverage required by this Contract on forms satisfactory tothe City. The certificates and endorsements for each insurance policy shall besigned by a person authorized by that insurer to bind coverage on its behalf, andshall be on forms acceptable to the City. All certificates and endorsements must be received and approved by the City before Work commences.
B. Additional Insureds; Waiver of Subrogation. The City, its officials, officers, employees, agents and authorized volunteers shall be named as Additional Insureds on Contractor’s All Risk policy and on Contractor’s and its Subcontractors’ policiesof Commercial General Liability and Automobile Liability insurance using, for Contractor’s policyJies of Commercial General Liability insurance, ISO CG forms 20 10 and 20 37 (or endorsements providing the exact same coverage, including completed operations), and, for Subcontractors’ policies of Commercial General Liability insurance, ISO CG form 20 38 (or endorsements providing the exact same coverage). Notwithstanding the minimum limits set forth in this Contract for any typeof insurance coverage, all available insurance proceeds in excess of the specifiedminimum limits of coverage shall be available to the parties required to be named as Additional Insureds hereunder. All insurance coverage maintained or procured pursuant to this Contract shall be endorsed to waive subrogation against the City, its officers, officials, agents, employees or volunteers or shall specifically allow Contractor - or others providing insurance evidence in compliance with these specifications - to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against the City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. Copies ofthese waivers shall be submitted to the City prior to commencement of work.
C. Workers’ Compensation Insurance. The Contractor shall provide workers’ compensation insurance for all of the employees engaged in Work under thisContract, on or at the Site, and, in case of any sublet Work, the Contractor shall require the subcontractor similarly to provide workers’ compensation insurance for all the latter’s employees as prescribed by State law. Any class of employee oremployees not covered by a subcontractor’s insurance shall be covered by theContractor’s insurance. In case any class of employees engaged in work under thisContract, on or at the Site, is not protected under the Workers’ CompensationStatutes, the Contractor shall provide or shall cause a subcontractor to provide, UNDERGROUND FUEL TANK RELOCATION 65 007200—GENERAL CONDITIONSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.00000\40059964. I
adequate insurance coverage for the protection of such employees not otherwise protected. The Contractor is required to secure payment of compensation to his employees in accordance with the provisions of section 3700 of the Labor Code.The Contractor shall file with the City certificates of his insurance protecting workers.
Company or companies providing insurance coverage shall be acceptable to theCity, if in the form and coverage as set forth in the Contract Documents.
D. Employer’s Liability Insurance. Contractor shall provide Employer’s Liability Insurance, including Occupational Disease, in the amount of at least one million dollars ($1,000,000.00) per person per accident. Contractor shall provide the City with a certificate of Employer’s Liability Insurance. Such insurance shall comply with the provisions of the Contract Documents. The policy shall be endorsed, ifapplicable, to provide a Borrowed Servant/Alternate Employer Endorsement and contain a Waiver of Subrogation in favor of the City.
E. Commercial General Liability Insurance. Contractor shall provide occurrence” form Commercial General Liability insurance coverage at least as broad as the most current ISO CGL Form 00 01, including but not limited to, premises liability,contractual liability, products/completed operations, personal and advertising injury which may arise from or out of Contractor’s operations, use, and management of the Site, or the performance of its obligations hereunder. The policy shall not contain any exclusion contrary to this Contract including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 39); or (2) cross-liability for claims or suits against one insured against another. Policy limits shall not be less than $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General LiabilityInsurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the generalaggregate limit shall be twice the required occurrence limit. Defense costs shall be paid in addition to the limits.
1. Such policy shall comply with all the requirements of this Article. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Contractor from liability in excessof such coverage, nor shall it limit Contractor’s indemnification obligations to the City, and shall not preclude the City from taking such other actions available to theCity under other provisions of the Contract Documents or law.
2. All general liability policies provided pursuant to the provisions of this Article shall comply with the provisions of the Contract Documents.
3. All general liability policies shall be written to apply to all bodily injury, including death, property damage, personal injury, owned and non-owned equipment, blanket contractual liability, completed operations liability, explosion, collapse,under-ground excavation, removal of lateral support, and other covered loss,however occasioned, occurring during the policy term, and shall specifically insure the performance by Contractor of that part of the indemnification contained in these UNDERGROUND FUEL TANK RELOCATION -66- 007200— GENERAL CONDITIONSPROJECT — Phase III — TANK REMOVAL,
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General Conditions relating to liability for injury to or death of persons and damage to property.
4. If the coverage contains one or more aggregate limits, a minimum of 50% of any such aggregate limit must remain available at all times; if over 50% of anyaggregate limit has been paid or reserved, the City may require additionalcoverage to be purchased by Contractor to restore the required limits. Contractor may combine primary, umbrella, and as broad as possible excess liability coverage to achieve the total limits indicated above. Any umbrella or excess liability policy shall include the additional insured endorsement described in the Contract Documents.
5. All policies of general liability insurance shall permit and Contractor does hereby waive any right of subrogation which any insurer of Contractor may acquire fromContractor by virtue of the payment of any loss.
F. Automobile Liability Insurance. Contractor shall provide Automobile Liability Insurance at least as broad as ISO CA 00 01 (Any Auto) in the amount of, at least, one million dollars ($1,000,000) per accident for bodily injury and property damage.
Such insurance shall provide coverage with respect to the ownership, operation,maintenance, use, loading or unloading of any auto owned, leased, hired orborrowed by Contractor or for which Contractor is responsible, in a form and withinsurance companies acceptable to the City. All policies of automobile insurance shall permit and Contractor does hereby waive any right of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of anyloss.
G. Professional Liability Insurance. All architects, engineers, consultants or design professionals retained by Contractor shall also procure and maintain, for a period of five (5) years following completion of the Contract, errors and omissions liability insurance with a limit of not less than $1,000,000 per occurrence. This insurance shall name the City, its directors, officials, officers, employees, agents and volunteers as additional and insureds with respect to Work performed, and shall otherwise comply with all requirements of this Section. Defense costs shall be paidin addition to the limits.
H. Contractor’s Pollution Liability Coverage. Environmental Impairment Liability Insurance shall be written on a Contractor’s Pollution Liability form or other form acceptable to the City providing coverage for liability arising out of sudden, accidental and gradual pollution and remediation. The policy limit shall be no lessthan $1,000,000 dollars per claim and in the aggregate. All activities contemplated in this Contract shall be specifically scheduled on the policy as “covered operations.” The policy shall provide coverage for the hauling of waste from the Project site tothe final disposal location, including non-owned disposal sites.
Contractor shall require all tiers of Subcontractors working under this Contract toprovide the insurance required under this Article unless otherwise agreed to in writing by the City. Contractor shall make certain that any and all Subcontractors hired by Contractor are insured in accordance with this Contract. If any Subcontractor’s coverage does not comply with the foregoing provisions, Contractor UNDERGROUND FUEL TANK RELOCATION 67 007200— GENERAL CONDITIONSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.00000\40059964. I
shall indemnify and hold the City harmless from any damage, loss, cost, or expense, including attorneys’ fees, incurred by the City as a result thereof.
J. Notwithstanding the minimum limits set forth in this Contract for any type of insurance coverage, if Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
K. Form and Proof of Carriage of Insurance.
1. Any insurance carrier providing insurance coverage required by the Contract Documents shall be admitted to and authorized to do business in the State of California unless waived, in writing, by the City’s Risk Manager. Carrier(s) shallhave an A.M. Best rating of not less than an A:Vll. Insurance deductibles or selfinsured retentions must be declared by the Contractor. At the election of the City the Contractor shall either 1) reduce or eliminate such deductibles or self-insured retentions, or 2) procure a bond which guarantees payment of losses and relatedinvestigations, claims administration, and defense costs and expenses. If umbrella or excess liability coverage is used to meet any required limit(s) specified herein, the Contractor shall provide a “follow form” endorsement satisfactory to the City indicating that such coverage is subject to the same terms and conditions as theunderlying liability policy.
2. Each insurance policy required by this Contract shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced or cancelled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage providedto the City, its officials, officers, agents, employees, and volunteers.
3. The Certificates(s) and policies of insurance shall contain or shall be endorsed to contain the covenant of the insurance carrier(s) that it shall provide no less thanthirty (30) days written notice be given to the City prior to any material modificationor cancellation of such insurance. In the event of a material modification orcancellation of coverage, the City may terminate the Contract or stop the Work inaccordance with the Contract Documents, unless the City receives, prior to sucheffective date, another properly executed original Certificate of Insurance and original copies of endorsements or certified original policies, including all endorsements and attachments thereto evidencing coverage’s set forth herein and the insurance required herein is in full force and effect. Contractor shall not take possession, or use the Site, or commence operations under this Contract until theCity has been furnished original Certificate(s) of Insurance and certified originalcopies of endorsements or policies of insurance including all endorsements and any and all other attachments as required in this Article. The original endorsements for each policy and the Certificate of Insurance shall be signed byan individual authorized by the insurance carrier to do so on its behalf.
4. The Certificate(s) of Insurance, policies and endorsements shall so covenant and shall be construed as primary, and the City’s insurance and/or deductibles and/or UNDERGROUND FUEL TANK RELOCATION -68- 007200— GENERAL CONDITIONSPROJECT Phase III — TANK REMOVAL,
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self-insured retentions or self-insured programs shall not be construed as contributory.
5. The City reserves the right to adjust the monetary limits and types of insurance coverages during the term of this Contract including any extension thereof if, in theCity’s reasonable judgment, the amount or type of insurance carried by theContractor becomes inadequate.
6. Contractor shall report to the City, in addition to the Contractor’s insurer, any and all insurance claims submitted by the Contractor in connection with the Work under this Contract.
7. Products/completed operations coverage shall extend a minimum of three years after the project completion. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors, the policy must include work performed ‘by or onbehalf’ of the insured. Policy shall contain no language that would invalidate orremove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend onthe part of the insurer. The City, its officers, officials, agents employees, andvolunteers shall be included as insureds under the policy.
ARTICLE 5-CONTRACTOR RESPONSIBILITIES; REGULATORY REQUIREMENTS
5.1 Applicable Laws.
A. Contractor shall give all notices required by and shall comply with all Applicable Laws applicable to the performance of the Work. Except where otherwise expressly required by Applicable Laws, neither the City nor the Engineer shall be responsible for monitoring Contractor’s compliance with any Applicable Laws. If Contractor performs any Work knowing or having reason to know that it is contrary to ApplicableLaws, Contractor shall bear all claims, costs, losses, and damages (including but notlimited to all fees and charges of engineers, architects, attorneys, and otherprofessionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such Work.
5.2 Permits and Licenses.
A. City will apply and pay for the review of necessary encroachment permits for Work within the public rights-of-way. All other necessary permits and licenses necessaryfor prosecution of the Work shall be secured and paid for by Contractor, including, but not limited to, permits, licenses and fees required by agencies with authority in the jurisdiction in which the Work will be located, unless otherwise expressly provided by the Contract Documents. The Contractor shall arrange and pay for all off-site inspection of the Work related to permits and licenses, including certification, required by the Contract Documents or by governing authorities, except for such offsite inspections delineated as the City’s responsibility pursuant to the Contract Documents. Before acceptance of the Work, the Contractor shall submit all licenses, permits, certificates of inspection and required approvals to the City.
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5.3 Taxes.
A. Contractor shall pay all sales, consumer, use, and other similar taxes required to be paid in accordance with the Applicable Laws of the place of the Project which are applicable during the performance of the Work. In accordance with Revenue andTaxation Code section 107.6, the Contract Documents may create a possessory interest subject to personal property taxation for which Contractor will beresponsible.
5.4 Traffic Control.
A. Traffic control plans, if required, shall be prepared at Contractor’s expense. Traffic control shall be performed at Contractor’s expense in accordance with the requirements of the City and/or the local agency with jurisdiction. Costs for traffic control plans, implementation of traffic control, or traffic signal services required bythe City shall be included in the Contractor’s Bid.
B. All warning signs and safety devices used by the Contractor to perform the Work shall conform to the requirements contained in the State of California, Department of Transportation’s current edition of “Manual of Traffic Controls for Construction and Maintenance Work Zones” or to the requirements of the local agency. The Contractor shall also be responsible for all traffic control required by the agency having jurisdiction over the Project on the intersecting streets. Contractor must submit a traffic control plan to the agency having jurisdiction over the Project for approval prior to starting Work.
C. The Contractor’s representative on the Site responsible for traffic control shall produce evidence that he or she has completed training acceptable to the California Department of Transportation for safety through construction zones. All of the streets in which the Work will occur shall remain open to traffic and one lane of trafficmaintained at all times unless otherwise directed by the agency of jurisdiction.Businesses and residences adjacent to the Work shall be notified forty-eight (48)hours in advance of closing of driveways. The Contractor shall make every effort tominimize the amount of public parking temporarily eliminated due to construction in areas fronting businesses. No stockpiles of material will be allowed in traveled rightof-ways after working hours unless otherwise approved by the Engineer.
5.5 Safety.
A. Contractor shall be solely responsible for all safety precautions and programs in connection with the Work. Such responsibility does not relieve Subcontractors of their responsibility for the safety of persons or property in the performance of theirwork, nor for compliance with applicable safety laws. Contractor shall comply with all Applicable Laws relating to the safety of persons or property, or to the protection of persons or property from damage, injury, or loss; and shall erect and maintain all necessary safeguards for such safety and protection. Contractor shall notify owners of adjacent property and of Underground Facilities and other utility owners when prosecution of the Work may affect them, and shall cooperate with them in theprotection, removal, relocation, and replacement of their property. Contractor shallbe responsible for coordinating any exchange of material safety data sheets or other UNDERGROUND FUEL TANK RELOCATION -70- 007200— GENERAL CONDITIONSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION (,505900000\40059964. I
hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Applicable Laws.
B. The Contractor shall maintain emergency first aid treatment for his employees which complies with the Federal Occupational Safety and Health Act of 1970 (29 U.S.C. §651 etseq.), and California Code of Regulations, Title 8, Industrial Relations Division 1, Department of Industrial Relations, Chapter 4. The Contractor shall ensure the availability of emergency medical services for its employees in accordance withCalifornia Code of Regulations, Title 8, Section 1512. The Contractor shall submitan Illness and Injury Prevention Program and a Project Site specific safety program to the City prior to beginning Work. Contractor shall maintain a confined space program that meets or exceeds the City’s standards. Contractor needs to make themselves aware of the City’s safety policies and procedures, and shall meet orexceed all City standards in areas where the City must enter to perform inspections.
5.6 Hazardous Waste.
A. The City shall not be responsible for any Hazardous Waste brought to the site by the Contractor. If the Contractor: (i) introduces and/or discharges a Hazardous Waste onto the site in a manner not specified by the Contract Documents; and/or (U)disturbs a Hazardous Material identified in the Contract Documents, the Contractorshall hire a qualified remediation contractor at Contractor’s sole cost to eliminate thecondition as soon as possible. Under no circumstance shall the Contractor perform Work for which it is not qualified. The City, in its sole discretion, may require the Contractor to retain at Contractor’s cost an independent testing laboratory.
B. If the Contractor encounters Hazardous Waste which may cause foreseeable injury or damage, Contractor shall immediately: (i) secure or otherwise isolate such condition; (ii) stop all Work in connection with such material or substance (except in an emergency situation); and (Ui) notify the City (and promptly thereafter confirmsuch notice in writing). The City shall contract for any services required to directly remove and/or abate Hazardous Waste, if required, and shall not require theContractor to subcontract for such services. The Work in the affected area shall not thereafter be resumed except by written agreement of the City and Contractor.
C. Contractor shall indemnify and hold harmless the City from and against claims, damages, losses and expenses, arising from a Hazardous Waste on the Project Site, if such Hazardous Waste exceeded OSHA Permissible Exposure Levels or levels which would classify the material as a state of California or federal hazardous waste,and was either i) shown on the Contract Documents or information available to bidders; or (U) brought to the site by Contractor. Nothing in this paragraph shall obligate the Contractor to indemnify the City in the event of the sole or active negligence or willful misconduct of the City, its officers, agents, or employees.
5.7 Sanitary Facilities.
A. Contractor shall provide sanitary temporary toilet buildings and hand washing facilities for the use of all workers. All toilets and hand washing facilities shall complywith Applicable Laws. Toilets shall be placed inside sealed secondary containmentdevices installed on a flat, level surface. Accumulated liquids in the secondary UNDERGROUND FUEL TANK RELOCATION -71- 007200— GENERAL CONDITIONSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 6505 9 00000\4005 9964. 1
containment devices shall be properly removed and legally disposed without spillage onto the ground. Toilets shall be kept supplied with toilet paper and shall have workable door fasteners. Toilets and hand washing facilities shall be serviced no less than once weekly and shall be present in a quantity of not less than 1 per 20 workers as required by Cal/OSHA regulations. The toilets and hand washingfacilities shall be maintained in a sanitary condition at all times. Use of toilet and hand washing facilities in the Work under construction shall not be permitted. Any other sanitary facilities required by Cal/OSHA shall be the responsibility of the Contractor.
5.8 Dust Control.
A. Contractor, at its expense, shall maintain all excavations, embankments, haul roads, permanent access roads, plant sites, waste disposal areas, borrow areas, and all other work areas free from dust. Industry accepted methods of dust control suitable for the area involved, such as sprinkling, chemical treatment, light bituminoustreatment or similar methods, will be permitted.
5.9 Air Pollution Control.
A. Contractor shall comply with all air pollution control rules, regulations, ordinances and statutes. All containers of paint, thinner, curing compound, solvent or liquidasphalt shall be labeled to indicate that the contents fully comply with the applicablematerial requirements.
B. Without limiting the foregoing, Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services,including, but not limited to, emissions limits and permitting requirements imposedby the Air Quality Management District with jurisdiction over the Project and/orCalifornia Air Resources Board (CARB). Contractor shall specifically be aware of the application of these limits and requirements to “portable equipment”, whichdefinition includes any item of equipment with a fuel-powered engine. Contractorshall indemnify the City against any fines or penalties imposed by the air quality management district, CARS, or any other governmental or regulatory agency for its violations of Applicable Laws as well as those of its Subcontractors or others for whom Contractor is responsible under its indemnity obligations provided for in the Contract Documents.
5.10 Water Quality Management and Compliance.
A. Storm, surface, ground, nuisance, or other waters may be encountered at various times during construction of the Work. The Contractor hereby acknowledges that it has investigated the risk arising from such waters, has prepared its Bid accordingly, and assumes any and all risks and liabilities arising therefrom.
B. Contractor shall keep itself and all Subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules andregulations that may impact, or be implicated by the performance of the Workincluding, without limitation, all applicable provisions regulating discharges of storm water; the Federal Water Pollution Control Act (33 U.S.C. § 13000 et seq.); the UNDERGROUND FUEL TANK RELOCATION 72 001200—GENERAL CONDITIONSPROJECT — Phase III — TANK REMOVAL,
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California Porter-Cologne Water Quality Control Act (Cal Water Code § 13000- 14950): and any and all regulations, policies, or permits issued pursuant to any such authority. These include, but are not limited to California State Water ResourcesControl Board Order Number 2009-0009-DWQ (NPDES Permit No. CAS000002),as amended by Order Numbers 2010-0014-DWQ, 2012-0006-DWQ, and anysubsequent amendment to or renewal thereof, State Water Resources Control Board Order No. 2013-0001-DWQ (NPDES Order No. CAS000004), Santa Ana Regional Water Quality Control Board No. R8-201 0-0036 (NPDES No. CAS61 8036), and any amendment or renewal thereof.
C. Contractor shall comply with all conditions of the State Water Resources Control Board National Pollutant Discharge Elimination System General Permit for WasteDischarge Requirements for Discharges of Storm Water Runoff Associated with Construction Activity (“Construction General Permit”) for all construction activity which results in the disturbance of in excess of one acre of total land area or which is part of a larger common area of development or sale. Contractor shall comply with the lawful requirements of the City, and any other applicable municipality,drainage district, or other local agency with jurisdiction over the location where theWork is to be conducted, regarding discharges of storm water to separate stormdrain systems or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.
D. Failure to comply with the Construction General Permit, laws, regulations, and ordinances listed in this Article is a violation of federal and state law.
Notwithstanding any other indemnity contained in these Contract Documents, Contractor agrees to indemnify and hold harmless the City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims,demands, fees, costs, expenses, or losses or liabilities of any kind or nature whichthe City, its officials, officers, agents, employees and authorized volunteers maysustain or incur for noncompliance with the Construction General Permit, laws, regulations, and ordinances listed above, arising out of or in connection with the Work, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employeesor authorized volunteers. The City reserves the right to defend any enforcementaction or civil action brought against the City for Contractor’s failure to comply withany applicable water quality law, regulation, or policy. Contractor hereby agrees tobe bound by, and to reimburse the City for the costs associated with, any settlementreached between the City and any relevant enforcement entity.
5.11 Environmental Quality Protection.
A. The Contractor shall comply with all requirements of applicable federal, state, and local environmental rules and regulations. Any infractions of said rules and regulations by the Contractor during the term of the Contract, which result inpenalties, will be the responsibility of the Contractor. The City operates under anumber of environmental permits issued by various agencies. If due to an action,inaction, or negligence by the Contractor, the City becomes subject to noncompliance penalties, the cost of such penalties shall be borne by the Contractor.
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B. The Contractor shall exercise care to preserve the natural landscape and vegetation and shall conduct operations so as to prevent unnecessary destruction,scarring, or defacing of the natural surroundings in the vicinity of the Work.
Movement of crews and equipment within the rights-of-way and over routes provided for access to the Work shall be performed in a manner to prevent damage to property. When no longer required, construction roads shall be restored to original contours. Upon completion of the Work, and following removal of construction facilities and required cleanup, land used for construction purposes and not requiredfor the completed installation shall be scarified and regraded, as required, so that all surfaces are left in a condition that will facilitate natural revegetation, provide for proper drainage, and prevent erosion.
C. If, in the performance of the Work, evidence of the possible occurrence of any Federally listed threatened or endangered plant or animal is discovered, theContractor shall notify the City immediately, giving the location and nature of the findings. Written confirmation of the evidence, location and nature of the findings shall be forwarded to City within two (2) Days. The Contractor shall immediatelycease all construction activities in the immediate area of the discovery to the extent necessary to protect the endangered plant or animal. If directed by the City, Contractor will refrain from working in the immediate area, suspend the Work in its entirety, or alter its performance to ensure full compliance with all applicable permits, laws and regulations. Any City directed changes to the Work as a result of a siting will be pursuant to the Contract Documents. Any costs or delays incurred by City or the Contractor due to unreasonable or false notification of an endangered plant oranimal will be borne by the Contractor.
D. If, in the performance of the Work, Contractor should unearth cultural resources (for example, human remains, animal bones, stone tools, artifacts and/or midden deposits) through excavation, grading, watering or other means, the Contractor shall notify the construction/archeological monitor and/or the City immediately, giving thelocation and nature of the findings. Written confirmation of the evidence, location and nature of the findings shall be forwarded to the construction/archeological monitor and/or City within two (2) Days. Contractor shall immediately cease all construction activities in the immediate area of the discovery to the extent necessary to protect the cultural resource. If directed by the City, Contractor will refrain fromworking in the immediate area, suspend the Work in its entirety, or re-sequence and/or alter its performance to ensure full compliance with all applicable permits,laws and regulations. Should the presence of cultural resources be confirmed, theContractor will assist the City and the construction/archeological monitor in thepreparation and implementation of a data recovery plan. The Contractor shallprovide such cooperation and assistance as may be necessary to preserve the cultural resources for removal or other disposition. Any City directed changes to theWork as a result of the cultural resource will be pursuant to the Contract Documents.
Should Contractor, without permission, injure, destroy, excavate, appropriate, orremove any cultural resource on or adjacent to the Site, it will be subject to disciplinary action, arrest and penalty under applicable law. Contractor shall be principally responsible for all costs of mitigation and/or restoration of culturalresources related to the unauthorized actions identified above. Contractor shall berequired to pay for unauthorized damage and mitigation costs to cultural resources UNDERGROUND FUEL TANK RELOCATION J74 007200— GENERAL CONDITIONS PROJECT— Phase III —TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.00000\40059964. I
(historical and archeological resources) as a result of unauthorized activities that damage cultural resources and shall indemnify City pursuant to the Contract Documents.
5.12 Noise Restrictions.
A. Contractor shall use only such equipment on the Work and in such state of repair so that the emission of sound therefrom is within the noise tolerance level of thatequipment as established by Cal/OSHA. Contractor shall comply with the most restrictive of the following: (1) local sound control and noise level rules, regulations and ordinances and (2) the requirements contained in these Contract Documents, including hours of operation requirements. No internal combustion engine shall be operated on the Project without a muffler of the type recommended by the manufacturer. Should any muffler or other control device sustain damage or be determined to be ineffective or defective, the Contractor shall promptly remove the equipment and shall not return said equipment to the job until the device is repairedor replaced. Said noise and vibration level requirements shall apply to all equipmenton the job or related to the job, including but not limited to, trucks, transit mixers ortransit equipment that may or may not be owned by the Contractor.
5.13 Diversion of Recyclable Waste Material.
A. In compliance with the applicable City’s waste reduction and recycling efforts, Contractor shall divert all Recyclable Waste Materials to appropriate recycling centers as required for compliance with the local jurisdiction’s waste diversionordinances. Contractor will be required to submit weight tickets and written proof ofdiversion with its monthly progress payment requests. Contractor shall completeand execute any certification forms required by the City or other applicable agencies to document Contractor’s compliance with these diversion requirements. All costs incurred for these waste diversion efforts shall be the responsibility of the Contractor.
5.14 Workers; Contractor’s Supervision.
A. Contractor shall be an independent contractor for the City and not an employee.
Contractor understands and agrees that it and all of its employees shall not beconsidered officers, employees, or agents of the City and are not entitled to benefits of any kind normally provided employees of the City, including but not limited to,state unemployment compensation or workers’ compensation. Contractor assumes full responsibility for the acts and omissions of its employees or agents related to theWork.
B. By executing the Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment ofundocumented aliens, including, but not limited to, the Immigration Reform andControl Act of 1986, as may be amended from time to time, and shall require allSubcontractors, sub-subcontractors and consultants to comply with the same. Eachperson executing this Contract on behalf of Contractor verifies that he or she is a duly authorized officer of Contractor and that any of the following shall be grounds for the City to terminate the Contract for cause: (1) failure of the Contractor or its Subcontractors, sub-subcontractors or consultants to meet any of the requirements UNDERGROUND FUEL TANK RELOCATION 75 007200— GENERAL CONDITIONSPROJECT— Phase III —TANK REMOVAL,
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provided for in this Article; (2) any misrepresentation or material omission concerning compliance with such requirements; or (3) failure to immediately remove from the Work any person found not to be in compliance with such requirements.
C. Contractor shall at all times enforce strict discipline and good order among its employees. Contractor shall not employ on the Project any unfit person or any onenot skilled in the Work assigned to him or her. Any person in the employ of the Contractor whom the City may deem incompetent or unfit shall be dismissed from the Work and shall not be employed on this Project.
D. Contractor shall continuously keep at the Project site, a competent and experienced full-time Project superintendent acceptable to the City. Superintendent must be able to proficiently speak, read and write in English and shall have the authority to makedecisions on behalf of the Contractor. Contractor shall continuously provide efficientsupervision of the Project.
5.15 Labor.
A. Hours of Work.
1. As provided in Article 3 (commencing at section 1810), Chapter 1, Part 7, Division 2 of the Labor Code, Contractor stipulates that eight (8) hours of labor shallconstitute a legal day’s work. The time of service of any worker employed at any time by the Contractor or by any subcontractor on any subcontract under this Contract upon the Work or upon any part of the Work contemplated by thisContract is limited and restricted to eight (8) hours during any one calendar dayand 40 hours during any one calendar week, except as hereinafter provided.
Notwithstanding the provisions herein above set forth, work performed by employees of Contractor in excess of eight (8) hours per day, and 40 hours during any one week, shall be permitted upon this public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and onehalf times the basic rate of pay.
2. The Contractor and every Subcontractor shall keep an accurate record showing the name of and actual hours worked each calendar day and each calendar week by each worker employed in connection with the Work or any part of the Work contemplated by this Contract, The record shall be kept open at all reasonablehours to the inspection of the City and to the Division of Labor Law Enforcement, Department of Industrial Relations of the State of California.
3. The Contractor shall pay to the City a penalty of twenty-five dollars ($25.00) for each worker employed in the execution of this Contract by the Contractor or byany subcontractor for each calendar day during which such worker is required orpermitted to work more than eight (8) hours in any calendar day and 40 hours in any one calendar week in violation of the provisions of Article 3 (commencing atsection 1810), Chapter 1, Part 7, Division 2 of the Labor Code.
4. Any work necessary to be performed after regular working hours, or on Saturdays and Sundays or other holidays, shall be performed without additional expense tothe City.
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5. It shall be unlawful for any person to operate, permit, use, or cause to operate any of the following at the Project Site, other than between the hours of 7:00 am. to5:00 pm., Monday through Friday, with no Work allowed on Holidays, unlessotherwise approved by the City:
a. Powered Vehiclesb. Construction Equipment
c. Loading and Unloading Vehiclesd. Domestic Power Tools S. Payroll Records; Labor Compliance.
1. Pursuant to Labor Code section 1776, Contractor and all Subcontractors shall maintain weekly certified payroll records, showing the names, addresses, SocialSecurity numbers, work classifications, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman,apprentice, worker, or other employee employed by them in connection with theWork under this Contract. Contractor shall certify under penalty of perjury that records maintained and submitted by Contractor are true and accurate. Contractor shall also require Subcontractor(s) to certify weekly payroll records under penalty of perjury.
2. In accordance with Labor Code section 1771.4, the Contractor and each Subcontractor shall furnish the certified payroll records directly to the Department of Industrial Relations (‘DIR”) on the specified interval and format prescribed by the DIR, which may include electronic submission. Contractor shall comply withall requirements and regulations from the DIR relating to labor compliance monitoring and enforcement. The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall notapply to work performed on a public works project that is exempt pursuant to thesmall project exemption specified in Labor Code Section 1771.4.
3. Any stop orders issued by the DIR against Contractor or any Subcontractor that affect Contractor’s performance of Work, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shallbe considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Contractor or any Subcontractor.
4. The payroll records described herein shall be certified and submitted by the Contractor at a time designated by the City. The Contractor shall also provide the following:
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a. A certified copy of the employees payroll records shall be made available for inspection or furnished to such employee or his or her authorized representative on request.
b. A certified copy of all payroll records described herein shall be made available for inspection or furnished upon request of the DIR.
5. Unless submitted electronically, the certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement (“DLSE”) of the DIR or shall contain the same information as the forms provided by the DLSE.
6. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency, the City, the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement shall be marked orobliterated in such a manner as to prevent disclosure of an individual’s name, address and social security number. The name and address of the Contractorawarded the Contract or performing the Contract shall not be marked or obliterated.
7. In the event of noncompliance with the requirements of this Article, the Contractor shall have ten (10) Days in which to comply subsequent to receipt of written noticespecifying in what respects the Contractor must comply with this Article. Should noncompliance still be evident after such 10-day period, the Contractor shall pay a penalty of one hundred dollars ($100.00) to the City for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon therequest of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payment then due.
8. The responsibility for compliance with this Article shall rest upon the Contractor.
C. Prevailing Rates of Wages.
1. The Contractor is aware of the requirements of Labor Code sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (‘Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain ‘public works” and ‘maintenance” projects. Since this Project involves an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the totalcompensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. The Contractor shall obtain a copy of the prevailing rates of per diem wages at the commencement of this Contract from the website of the Division of Labor Statistics and Research of the Department of Industrial Relations located at www.dir.ca.gov. In the alternative, the Contractor may view a copy of the prevailing rate of per diem wages which are on file at the City and shall be made available to interested parties upon request. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification, or type of worker needed to perform work on the Project available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the Project site. Contractor shall defend, indemnify and hold the City, its officials, UNDERGROUND FUEL TANK RELOCATION -78- 007200—GENERAL CONDITIONS PROJECT — Phase III —TANK REMOVAL,
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officers, employees and authorized volunteers free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or allege failure tocomply with the Prevailing Wage Laws.
2. The Contractor shall forfeit as a penalty to the City not more than Two Hundred Dollars ($200.00), pursuant to Labor Code section 1775, for each calendar day, orportion thereof, for each worker paid less than the prevailing wage rate as determined by the Director of the DIR for such work or craft in which such worker is employed for any public work done under the Contract by it or by any Subcontractor under it. The difference between such prevailing wage rate and the amount paid to each worker for each calendar day or portion thereof, for whicheach worker was paid less than the prevailing wage rate, shall be paid to each worker by the Contractor.
3. Contractor shall post, at appropriate conspicuous points on the Project Site, a schedule showing all determined general prevailing wage rates and all authorizeddeductions, if any, from unpaid wages actually earned.
D. Public Works Contractor Registration. Pursuant to Labor Code sections 1725.5 and 1771.1, the Contractor and its Subcontractors must be registered with the DIR prior to the execution of a contract to perform public works. By entering into this Contract, Contractor represents that it is aware of the registration requirement and is currentlyregistered with the DIR. Contractor shall maintain a current registration for the duration of the Project. Contractor shall further include the requirements of LaborCode sections 1725.5 and 1711.1 in any subcontract and ensure that allSubcontractors are registered at the time this Contract is entered into and maintainregistration for the duration of the Project. Notwithstanding the foregoing, thecontractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
E. Employment of Apprentices. Contractor and all Subcontractors shall comply with the requirements of Labor Code sections 1777.5 and 1777.6 in the employment of apprentices. Information relative to apprenticeship standards, wage schedules, andother requirements may be obtained from the Director of Industrial Relations, exofficio the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices. Knowing violations ofLabor Code section 1777.5 will result in forfeiture not to exceed one hundred dollars ($100.00) for each calendar day of non-compliance pursuant to Labor Code section 1777.7.
F. Nondiscrimination/Equal Employment Opportunity. Pursuant to Labor Code section 1735 and other applicable provisions of law, the Contractor and its Subcontractors shall not discriminate against any employee or applicant for employment because ofrace, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, or any otherclassifications protected by law on this Project. The Contractor will take affirmativeaction to insure that employees are treated during employment or training without UNDERGROUND FUEL TANK RELOCATION 79 007200— GENERAL CONDITIONSPROJECT — Phase III — TANK REMOVAL,
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regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, or any other classifications protected by law.
G. Debarment of Contractors and Subcontractors. Contractors or Subcontractors may not perform work on a public works project with a subcontractor who is ineligible toperform work on a public project pursuant to Labor Code section 1777.1 or 1777.7.
Any contract on a public works project entered into between a contractor and a debarred subcontractor is void as a matter of law. A debarred subcontractor maynot receive any public money for performing work as a subcontractor on a public works contract. Any public money that is paid, or may have been paid to a debarred subcontractor by a contractor on the project shall be returned to the City. TheContractor shall be responsible for the payment of wages to workers of a debarred subcontractor who has been allowed to work on the Project.
5.16 Subcontracts.
A. Contractor agrees to bind every Subcontractor to the terms of the Contract Documents as far as such terms are applicable to Subcontractor’s portion of the Work. Contractor shall be as fully responsible to the City for the acts and omissionsof its Subcontractors and of persons either directly or indirectly employed by its Subcontractors, as Contractor is for acts and omissions of persons directly employedby Contractor. Nothing contained in these Contract Documents shall create any contractual relationship between any Subcontractor and the City. The City reserves the right to accept all Subcontractors. The City’s acceptance of any Subcontractor under this Contract shall not in any way relieve Contractor of its obligations in theContract Documents. Prior to substituting any Subcontractor listed in the Bid Forms,Contractor must comply with the requirements of the Subletting and Subcontracting Fair Practices Act pursuant to California Public Contract Code section 4100 et seq.
5.17 Progress Meetings.
A. The Contractor shall schedule and hold regular progress meetings at least weekly and at other times as requested by Engineer or as required by progress of the Work.
The Contractor and City shall attend each meeting. Contractor may at its discretion request attendance by representatives of its Suppliers, manufacturers, and otherSubcontractors. The City will preside at the progress meetings and will arrange forkeeping and distributing the minutes. The purpose of the meetings is to review theprogress of the Work, maintain coordination of efforts, discuss changes inscheduling, and resolve other problems which may develop. During each meeting, the Contractor shall present any issues which may impact its progress with a viewto resolve these issues expeditiously.
5.18 Submittals
A. Schedule of Submittals. Within five (5) Days after the Notice to Proceed (unless otherwise specified in the Contract Documents), Contractor will prepare and delivera Schedule of Submittals to the City that has been fully integrated with the progressschedule and identifies each Submittal required by the Contract Documents as wellas the date on which Contractor will deliver each Submittal to the City. Each UNDERGROUND FUEL TANK RELOCATION 80 007200—GENERAL CONDITIONSPROJECT— Phase III —TANK REMOVAL,
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Submittal must be delivered to the City at least thirty (30) Days prior to the date the material or equipment is scheduled to be incorporated into the Work. The Contractoris responsible for any schedule delays resulting from the Submittal process.
B. Submittal Procedures.
1. Contractor will follow the following procedures for each Submittal, Shop Drawing and Sample required by the Contract Documents:a. Submittals must be transmitted electronically.b. Transmittals will be sequentially numbered. Contractor to mark revised Submittals with original number and sequential alphabetic suffix. c. Each Submittal will identify the Project, Contractor, Subcontractor and Supplier, pertinent Drawing and detail number, and Specification Sectionnumber appropriate to Submittal. d. By transmitting a Submittal, Contractor certifies it has reviewed and approved each Submittal, verified products required, field dimensions, adjacentconstruction Work, and that coordination of information is according torequirements of the Work and Contract Documents. e. Identify variations in Contract Documents and product or system limitations that may differ and/or be detrimental to successful performance of completedWork. f. When Submittal is revised for resubmission, Contractor shall promptly address the City’s comments and resubmit. Contractor shall identify changes made since previous submission.
g. The City’s review of Shop Drawings shall not relieve Contractor from responsibility for deviations from the Contract Documents unless Contractorhas, in writing, called the City’s attention to such deviations at time of submission and the City has taken no exception to the deviation. The City’s review of Shop Drawings shall not relieve Contractor from responsibility for errors in Shop Drawings.
h. Submittals not required by the Contract Documents or requested by the City will not be acknowledged or processed.
i. Incomplete Submittals will not be reviewed by the City. Delays resulting from incomplete Submittals are not the responsibility of the City. j. Contractor shall not be entitled to any extension of the Contract Times as a result of the Submittal process. k. Contractor shall allow a minimum of 20 working days for review of Submittals unless otherwise specified in the Contract Documents.
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2. Where a Submittal, Shop Drawing or Sample is required by the Contract Documents or the Schedule of Submittals, any related Work performed prior to the City review and approval of the pertinent submittal will be performed at the risk andsole expense and responsibility of Contractor.
C. Schedule Milestone for Submittals. Contractor must submit all Submittals required by the Contract Documents in accordance with the Schedule of Submittals. IfContractor fails to submit the Submittals in accordance with the Schedule ofSubmittals, Contractor will be solely liable for any delays or impacts caused by the delayed Submittal, whether direct or indirect. Contractor will be liable for the time calculated from the date the Submittal is due until the date a compliant Submittal ismade. A compliant Submittal will be one that is complete and satisfies therequirements of the Contract Documents.
5.19 Shop Drawings and Sample Submittal Procedures.
A. Before submitting each Shop Drawing or Sample, Contractor shall have:
1. Reviewed and coordinated each Shop Drawing or Sample with other Shop Drawings and Samples and with the requirements of the Work and the ContractDocuments;
2. Determined and verified all field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalognumbers, and similar information with respect thereto;
3. Determined and verified the suitability of all materials offered with respect to the indicated application, fabrication, shipping, handling, storage, assembly, andinstallation pertaining to the performance of the Work; and
4. Determined and verified all information relative to Contractor’s responsibilities for means, methods, techniques, sequences, and procedures of construction, andsafety precautions and programs incident thereto.
B. With each Submittal, Contractor shall give the City specific written notice of any variations that the Shop Drawing or Sample may have from the requirements of the Contract Documents. This notice shall be both a written communication separate from the Shop Drawings or Sample Submittal and, in addition, a specific notation made on each Shop Drawing or Sample submitted to the City for review and approval of each such variation.
C. Shop Drawings.
1. Data shown on the Shop Drawings will be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data to show the City the services, materials, and equipment Contractor proposes to provide and to enable the City to review the information for assessing conformance with information given and design concept expressed in Contract Documents.
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2. When required by individual Specification sections, provide Shop Drawings signed and sealed by a professional engineer responsible for designing componentsshown on Shop Drawings. Shop Drawings must include signed and sealedcalculations to support design in a form suitable for submission to and approval byauthorities having jurisdiction.
3. Shop Drawings for steel structures shall consist of shop details, erection and other working Drawings showing details, dimensions, sizes of members and other information necessary for the complete fabrication and erection of the metal work.
4. Shop Drawings of concrete structures shall consist of such detailed drawings as may reasonably be required for the successful prosecution of the Work and which are not included in the Drawings furnished by the Engineer. These may includedrawings for false work, bracing, centering and form work, masonry layout diagrams, and diagrams for bent reinforcement.
5. Contractor shall make revisions and provide additional information when required by authorities having jurisdiction.
D. Samples. Clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which intended and other data as required to enablethe City to review the submittal for assessing conformance with information givenand design concept expressed in Contract Documents. Samples should be ofappropriate size and detail to assess functional, aesthetic, color, texture, patternsand finish selection.
E. City’s Review.
1. The City will review Shop Drawings and Samples in accordance with the Schedule of Submittals. The City’s review and acceptance will be only to determine if theitems covered by the Submittals will, after installation or incorporation in the Work,conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents.
2. The City review and approval will not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequence, or procedure of construction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions.
3. The City’s review and acceptance shall not relieve Contractor from responsibility for any variation from the requirements of the Contract Documents unless the City has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Shop Drawing or Sample.
F. Resubmittal Procedures. Contractor shall make corrections required by the City and shall return corrected Shop Drawings and submit, as required, new Samples for review and approval. Contractor shall direct specific attention in writing to revisions other than the corrections called for by the City on previous Submittals.
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5.20 Record (“As-Built”) Drawings.
A. The Contractor shall maintain one record set of Contract Documents at the Site or digitally in an acceptable format. On these, it shall mark all Project conditions, locations, configurations, and any other changes or deviations which may vary from the information represented in the original Contract Documents, including buried orconcealed construction and utility features which are revealed during the course ofconstruction. Special attention shall be given to recording the horizontal and vertical location of all buried utilities that differ from the locations indicated, or which werenot indicated on the Drawings. For all Projects involving the installation of any pipeline, Contractor shall survey and record the top of the pipe at a minimum of every 100 linear feet, and at each bend, recording both the horizontal and vertical locations. Drawings shall be supplemented by any detailed sketches as necessary or directed to fully indicate the Work as actually constructed. Any required as-builtdrawings of civil engineering elements of the Work shall be prepared by a registeredcivil engineer.
B. These master Record Drawings of the as-built conditions, including all revisions made necessary by Addenda and Change Orders, shall be maintained up-to-dateduring the progress of the Project. Red ink shall be used for alterations and notes.Notes shall identify relevant Change Orders by number and date. Record Drawings shall be accessible to the Engineer at all times during the construction period.
Failure on the Contractor’s part to keep Record Drawings current could result in withholding partial payment.
C. Upon completion of the Project and as a condition of final acceptance, the Contractor shall finalize and deliver a complete set of Record Drawings to the Engineer. Theinformation submitted by the Contractor will be assumed to be correct, and theContractor shall be responsible for, and liable to the City, for the accuracy of suchinformation, and for any errors or omissions which may or may not appear on the Record Drawings.
5.21 Layout and Field Engineering.
A. The Contractor shall utilize a properly licensed surveyor to perform all layout surveys required for the control and completion of the Work and all necessary surveys to compute quantities of Work performed.
5.22 Separate Contracts and Cooperation.
A. Separate Contracts. The City reserves the right to let other contracts in connection with this Work or on the Project site. Contractor shall permit other contractors reasonable access and storage of their materials and execution of their work andshall properly connect and coordinate its Work with theirs. To ensure properexecution of its subsequent Work, Contractor shall immediately inspect work alreadyin place and shall at once report to the Engineer any problems with the Work in placeor discrepancies with the Contract Documents.
B. Cooperation. Contractor shall ascertain to its own satisfaction the scope of the Project and nature of any other contracts that have been or may be awarded by the UNDERGROUND FUEL TANK RELOCATION 84 007200— GENERAL CONDITIONSPROJECT — Phase III — TANK REMOVAL,
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City in prosecution of the Project to the end that Contractor may perform this Contract in the light of such other contracts, if any. Nothing herein contained shall be interpreted as granting to Contractor exclusive occupancy at site of the Project.
Contractor shall not cause any unnecessary hindrance or delay to any othercontractor working on the Project. If simultaneous execution of any contract for the Project is likely to cause interference with performance of some other contract or contracts, the Engineer shall decide which Contractor shall cease Work temporarily and which contractor shall continue or whether work can be coordinated so thatcontractors may proceed simultaneously. The City shall not be responsible for anydamages suffered or for extra costs incurred by Contractor resulting directly or indirectly from award, performance, or attempted performance of any other contract or contracts on the Project Site.
5.23 Work Site.
A. Limitation of Use of Site and Other Areas. Rights-of-way, easements, or rights-ofentry for the Work will be provided by the City. Unless otherwise specified in the Special Provisions, the Contractor shall make arrangements, pay for, and assumeall responsibility for acquiring, using, and disposing of additional work areas and facilities temporarily required. The Contractor shall indemnify and hold the City harmless from all claims for damages caused by such actions. Contractor shallconfine construction equipment, the storage of materials and equipment, and the operations of workers to the Site and other areas permitted by Applicable Laws, and shall not unreasonably encumber the Site and other areas with construction equipment or other materials or equipment. Contractor shall assume full responsibility for any damage to any such land or area, or to City or occupant thereof, or of any adjacent land or areas resulting from the performance of the Work.
B. Site Maintenance. During the progress of the Work, Contractor shall keep the Site and other areas free from accumulations of waste materials, rubbish, and otherdebris. Removal and disposal of such waste materials, rubbish, and other debrisshall conform to Applicable Laws. The Contractor shall furnish trash bins for alldebris from construction. All debris shall be placed in trash bins daily. Forms and false-work that are to be re-used shall be stacked neatly concurrently with their removal. Forms and false-work that are not to be re-used shall be disposed of concurrently with their removal.
C. Cleaning. Prior to Completion of the Work, Contractor shall clean the Site and make it ready for utilization by the City. At the completion of the Work Contractor shallremove from the Site all tools, appliances, construction equipment and machinery,and surplus materials and shall restore to original condition all property notdesignated for alteration by the Contract Documents.
5.24 Utility Usage.
A. All temporary utilities, including but not limited to electricity, water, gas, and telephone, used on the Work shall be furnished and paid for by Contractor.
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distribution systems. Contractor shall provide necessary and adequate utilities and pay all costs for water, electricity, gas, oil, and sewer charges required for completion of the Work, including but not limited to startup and testing required in the Contract Documents. All permanent meters installed shall be listed in the Contractor’s name until the Work is accepted. For Work to be performed in existing City facilities, Contractor may use the City’s existing utilities, provided such use is reasonableunder the circumstances. If Contractor uses the City utilities, it will not need to compensate the City for reasonably consumption of utilities, but Contractor will be responsible for any excessive, unreasonable or wasteful utility usage. Amounts due the City under this section may be deducted from progress payments.
5.25 Protection of Work and Property.
A. The Contractor shall digitally record video and take photographs of the Project site and adjacent improvements in a manner and quality that clearly depicts the existingcondition of the Project Site and adjacent improvements immediately prior to thestart of Work (minimum 1 080p video and 4MP photo). All videos and photographsshall be date and time stamped. The Contractor shall submit the video and photosin digital format on a memory stick before the commencement of Work, along with amap outlining the route and locations of the videos and/or photographs. The Contractor shall be responsible for all damages to persons or property that occur as a result of the Work. Contractor shall be responsible for the proper care and protection of all materials delivered and Work performed until completion and final acceptance by the City. All Work shall be solely at the Contractor’s risk.
B. Contractor shall adequately protect adjacent property from settlement or loss of lateral support as necessary. Contractor shall comply with all applicable safety laws and building codes to prevent accidents or injury to persons on, about, or adjacentto the Project site where Work is being performed. Contractor shall erect and properly maintain at all times, as required by field conditions and progress of work, all necessary safeguards, signs, barriers, lights, and watchmen for protection of workers and the public, and shall post danger signs warning against hazards created in the course of construction. Contractor shall provide such heat, covering, and enclosures as are necessary to protect all Work, materials, equipment, appliances,and tools against damage by weather conditions.
C. Contractor shall take adequate precautions to protect existing sidewalks, curbs, pavements, utilities, and other adjoining property and structures, and to avoid damage thereto, and Contractor shall repair any damage thereto caused by the Work operations. Contractor shall:
1. Enclose the working area with a substantial barricade, and arrange work to cause minimum amount of inconvenience and danger to the public.
2. Provide substantial barricades around any shrubs or trees indicated to be preserved.
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4. Confine Contractor’s apparatus, the storage of materials, and the operations of its workers to limits required by law, ordinances, permits, or directions of the City.
Contractor shall not unreasonably encumber the Site with its materials.
5. Take care to prevent disturbing or covering any survey markers, monuments, or other devices marking property boundaries or corners. If such markers aredisturbed by accident, they shall be replaced by a civil engineer or land surveyoracceptable to the City, at no cost to the City.
6. Ensure that existing facilities, fences and other structures are all adequately protected and that, upon completion of all Work, all facilities that may have been damaged are restored to a condition acceptable to the City.
7. Preserve and protect from injury all buildings, pole lines and all directional, warning and mileage signs that have been placed within the right-of-way.
8. At the completion of work each day, leave the Work and the Site in a clean, safe condition.
9. Comply with any stage construction and/or traffic handling plans. Access to residences and businesses shall be maintained at all times, except with the City’s written approval. Any request for approval to reduce or restrict access to residences and business must be submitted to the City at least seven (7) Days in advance, and the City may issue or withhold approval in its sole discretion.
D. These precautionary measures will apply continuously and not be limited to normal working hours. Full compensation for the work involved in the protection and preservation of life, safety and property as above specified shall be considered as included in the prices paid for the various contract items of Work, and no additional allowance will be made therefor.
E. Should damage to persons or property occur as a result of the Work, Contractor shall promptly notify the City, in writing. Contractor shall be responsible for properinvestigation, documentation, including video or photography, to adequatelymemorialize and make a record of what transpired. The City shall be entitled toinspect and copy any such documentation, video, or photographs. Contractor shallmaintain all investigation documentation including video and/or photographs for aminimum of four (4) years following completion of the Project.
5.26 Emergencies.
A. In emergencies affecting the safety or protection of persons or the Work or Property at the Site or adjacent thereto, the Contractor, without special instruction orauthorization from the City or the Engineer, is obligated to act to prevent threateneddamage, injury or loss. The Contractor shall give the Engineer prompt written notice if the Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby.
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ARTICLE 6 -MATERIALS; INSPECTION
6.1 Access to Work.
A. The City, Engineer, their consultants and other representatives and personnel, independent testing laboratories, and governmental agencies with jurisdictional interests will have access to the Site and the Work at reasonable times for theirobservation, inspection, and testing. Contractor shall provide them proper and safeconditions for such access and advise them of Contractor’s safety procedures andprograms.
6.2 Materials.
A. Except as otherwise specifically stated in the Contract Documents, Contractor shall provide and pay for all materials, labor, tools, equipment, water, lights, power, transportation, superintendence, temporary constructions of every nature, and allother services and facilities whatsoever necessary to execute and complete this Contract within the Contract Time. Unless otherwise specified, all materials, parts, and equipment furnished by the Contractor in the Work shall be new, the best of their respective kinds and grades as noted and/or specified, and workmanship shall be of good quality.
B. No materials, supplies, or equipment for Work under this Contract shall be purchased subject to any chattel mortgage or under a conditional sale or otheragreement by which an interest therein or in any part thereof is retained by the seller or Supplier. Contractor warrants good title to all material, supplies, and equipment installed or incorporated in the Work and agrees upon completion of all work to deliver the Project, to the City free from any claims, liens, or charges.
C. Materials shall be furnished in ample quantities and at such times as to ensure uninterrupted progress of the Work and shall be stored properly and protected asrequired by the Contract Documents. Contractor shall be entirely responsible for damage or loss by weather or other causes to materials or Work. Materials shall bestored on the Project Site in such manner so as not to interfere with any operationsof the City or any independent contractor.
D. Contractor shall verify all measurements, dimensions, elevations, and quantities before ordering any materials or performing any Work, and the City shall not be liable for Contractor’s failure to so. No additional compensation, over and above paymentfor the actual quantities at the prices set out in the Bid Schedule, will be allowed because of differences between actual measurements, dimension, elevations and quantities and those indicated on the Plans and in the Specifications. Any differencetherein shall be submitted to the Engineer for consideration before proceeding withthe Work.
6.3 Test and Inspections.
A. Inspection of Work.
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1. If the Contract Documents, the Engineer, or any instructions, laws, ordinances, or public authority requires any part of the Work to be tested or approved, Contractor shall provide the Engineer at least two (2) Days’ notice of its readiness for observation or inspection. If inspection is by a public authority other than the City,Contractor shall promptly inform the City of the date fixed for such inspection.
Required certificates of inspection (or similar) shall be secured by Contractor.
Costs for City testing and inspection shall be paid by the City. Costs of tests for Work found not to be in compliance shall be paid by the Contractor.
2. If Contractor gives notice of an inspection pursuant to the Contract Documents, the City will provide inspection during normal working hours from 7:00 a.m. to 3:30 p.m. Monday through Friday. Requested inspections before or after this time willbe charged to the Contractor as reimbursable inspection time. Inspections on weekends requires two (2) Days’ notice for review and approval. Upon written request and approval the 8.5 hour working day may be changed to other limits.
3. The Contractor shall pay for the cost of any minimum “show up” costs of a materials testing technician that was called for by the Contractor but ultimately the Contractorwork was not ready for the inspection. Any such costs shall be deducted from anyamounts due to the Contractor.
4. If any Work is done or covered up without the required testing or approval, the Contractor shall uncover or deconstruct the Work, and the Work shall be redoneafter completion of the testing at the Contractor’s cost in compliance with theContract Documents.
5. Where inspection and testing are to be conducted by an independent laboratory or agency, materials or samples of materials to be inspected or tested shall be selected by such laboratory or agency, or by the City, and not by Contractor.Unless otherwise stated and as provided by the Contract Documents, the City shall employ and pay for the services of an independent testing laboratory to performall inspections, tests, or approvals required by the Contract Documents. All testsor inspections of materials shall be made in accordance with the commonly recognized standards of national organizations.
6. Reexamination of Work may be ordered by the City. If so ordered, Work must be uncovered or deconstructed by Contractor. If Work is found to be in accordance with the Contract Documents, the City shall pay the costs of reexamination and reconstruction. If such work is found not to be in accordance with the Contract Documents, Contractor shall pay all costs.
B. Testing of Materials.
1. In advance of manufacture of materials to be supplied by Contractor which must be tested or inspected, Contractor shall notify the City so that the City may arrange for testing at the source of supply. Any materials which have not satisfactorily passed such testing and inspection shall not be incorporated into the Work.
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excessive or unusual costs associated with such testing or inspection, including but not limited to excessive travel time, standby time and required lodging.
3. Unless otherwise specified in the Special Provisions, all initial testing and a reasonable amount of retesting will be performed under the direction of theEngineer, and at no expense to the Contractor. The Contractor shall notify theEngineer in writing, at least 15 days in advance, of its intention to use materials for which tests are specified, to allow sufficient time to perform the tests. The notice shall name the proposed Supplier and source of material. If the notice of intent to use is sent before the materials are available for testing or inspection, or is sent so far in advance that the materials on hand at the time will not last but will be replaced by a new lot prior to use on the Work, it will be the Contractor’s responsibility to renotify the Engineer when samples which are representative may be obtained.
4. A Certificate of Compliance shall be furnished to the Engineer prior to the use of any material or assembled material for which these Specifications so require or ifso required by the Engineer. The Engineer may waive the materials testing requirements and accept a Certificate of Compliance. Material test data may be required by the Engineer to be included with the Submittal. Materials used on thebasis of a Certificate of Compliance may be sampled and tested at any time. Thesubmission of a Certificate of Compliance shall not relieve the Contractor ofresponsibility for incorporating material into the Work which conforms to therequirements of the Contract Documents, and any material not conforming to therequirements will be subject to rejection by the Engineer whether in place or not.
5. Copies of mill certificates of composition and quality of all component materials (reinforcing steel, structural steel, lumber, etc.) incorporated in the construction of the Work shall be provided to the City at the time of delivery. City shall retain the right to reject any raw material not provided with a mill certificate at the time of delivery.
6. If, after incorporating such materials into the Work, it is found that sources of supply that have been approved do not furnish a uniform product, or if the product from any source proves unacceptable at anytime, the Contractor shall furnish approvedmaterial from other approved sources. If any product proves unacceptable afterimproper storage, handling or for any other reason it shall be rejected, notincorporated into the Work, and shall be removed from the Project Site all at theContractor’s expense.
6.4 Requests for Substitutions.
A. For the purposes of this provision, the term “substitution” shall mean the substitution of any material, method or service substantially equal to or better in every respect tothat indicated in the Contract Documents or otherwise referenced herein.
B. Pursuant to Public Contract Code section 3400(b), the City may make a finding that is described in the Notice Inviting Bids that designates certain products, things, orservices by specific brand or trade name.
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C. Unless specifically designated in the Special Conditions, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name orby name of manufacturer, such specifications shall be deemed to be used for thepurpose of facilitating the description of the material, process, or article desired and shall be deemed to be followed by the words “or equal.” Contractor may, unlessotherwise stated, offer for substitution any material, process, or article which may besubstantially equal to or better in every respect to that so indicated or specified in the Contract Documents. However, the City has adopted uniform standards for certain materials, processes, and articles.
D. The Contractor shall submit substitution requests, together with substantiating data, for substitution of any “or equal” material, process, or article no later than thirty-five (35) Days after award of Contract. Provisions regarding submission of substitutionrequests shall not in any way authorize an extension of time for the performance of this Contract. If a substitution request is rejected by the City, the Contractor shall provide the material, method or service specified herein. The City shall not beresponsible for any costs incurred by the Contractor associated with substitutionrequests. The burden of proof as to the equality of any material, process, or article shall rest with the Contractor. The Engineer has the complete and sole discretion todetermine if a material, process, or article is substantially equal to or better than thatspecified and to approve or reject all substitution requests.
E. Substantiating data as described above shall include, at a minimum, the following information:
1. A signed affidavit from the Contractor stating that the material, process, or article proposed as a substitution is substantially equal to or better than that specified in every way except as may be listed on the affidavit.
2. Illustrations, specifications, catalog cut sheets, and any other relevant data required to prove that the material, process, or article is substantially equal to or better than that specified.
3. A statement of the cost implications of the substitution being requested, indicating whether and why the proposed substitution will reduce or increase the amount of the contract.
4. Information detailing the durability and lifecycle costs of the proposed substitution.
F. Failure to submit all the required substantiating data detailed above in a timely manner so that the substitution request can be adequately reviewed may result inrejection of the substitution request. The Engineer is not obligated to review multiple submittals related the same substitution request resulting from the Contractor’s failure to initially submit a complete package.
G. Time limitations within this Article shall be strictly complied with and in no case will an extension of time for completion of the contract be granted because ofContractor’s failure to provide substitution requests at the time and in the mannerdescribed herein.
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H. The Contractor shall bear the costs of all the City work associated with the review of substitution requests.
I. If substitution requests approved by the Engineer require that Contractor furnish materials, methods or services more expensive than that specified, the increased costs shall be borne by Contractor.
ARTICLE 7 -SUBSURFACE AND PHYSICAL CONDITIONS; UTILITIES
7.1 Soils Investigations.
A. Reports and Drawings. The Special Conditions identify: those reports known to the City of explorations and tests of subsurface conditions at or contiguous to the site; and those drawings known to the City of physical conditions relating to existingsurface or subsurface structures at the site (except Underground Facilities).
B. Limited Reliance by Contractor on Technical Data Authorized. Contractor may rely upon the accuracy of the “technical data” contained in such reports and drawings, which were expressly not created or obtained to evaluate or assist in the evaluationof constructability, and are not Contract Documents. Contractor shall make its own interpretation of the “technical data” and shall be solely responsible for any suchinterpretations. Except for reliance on the accuracy of such “technical data,”Contractor may not rely upon or make any claim against the City, City’sRepresentative, or Engineer of Record, or any of their officers, directors, members,partners, employees, agents, consultants, or subcontractors, with respect to:
1. the completeness of such reports and drawings for Contractor’s purposes, including without limitation any aspects of the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, andsafety precautions and programs incident thereto;
2. other data, interpretations, opinions, conclusions and information contained in such reports or shown or indicated in such drawings; or
3. any Contractor interpretation of or conclusion drawn from any “technical data” or any such other data, interpretations, opinions, or information.
7.2 Ownership of Site Materials Found.
A. The title to water, soil, rock, gravel, sand, minerals, timber and any other materials developed or obtained in the excavation or other operations of Contractor or any of its Subcontractors in the performance of the Contract, and the right to use said itemsin carrying out the Contract, or to dispose of same, is hereby expressly reserved by the City. Neither Contractor nor any of its Subcontractors nor any of their representatives or employees shall have any right, title, or interest in said materials,nor shall they assert or make any claim thereto. Contractor will, as determined by the City, be permitted to use in the Work without charge, any such materials which meet the requirements of the Contract Documents, provided the City shall have theright to use or consume these materials without payment to a third party.
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7.3 Existence of Utilities at the Work Site.
A. Existing Utilities. The location of known existing utilities and pipelines are shown on the Drawings in their approximate locations. However, nothing herein shall bedeemed to require the City to indicate the presence of existing service laterals orappurtenances whenever the presence of such utilities on the site of the project canbe inferred from the presence of other visible facilities, such as buildings, cleanouts,meter and junction boxes, on or adjacent to the Site of the Project. The City will assume the responsibility for the timely removal, relocation, or protection of existing main or trunk line utility facilities located on the Project site if such utilities are notidentified by the City in the Contract Documents or which cannot reasonably beinferred from the presence of other visible facilities.
B. Utility Location.
1. It shall be the Contractor’s responsibility to determine the exact location and depth of all utilities, including service connections, which the Contractor believes mayaffect or be affected by the Contractor’s operations, by taking all reasonable steps necessary including, but not limited to, calling Underground Service Alert to locateutilities in accordance with the procedures described in Government Code 4216 et seq. The Contractor shall not be entitled to additional compensation nor time extensions for work necessary to avoid interferences nor for repair to damaged utilities if the Contractor does not expose all such existing utilities as required by this Article. The locating of utilities shall be in conformance with Government Code section 4216 et seq. except for the City’s utilities located on the City’s property and not on public right-of-way.
2. A “High Priority Subsurface Installation” is defined in Government Code section 4216 Q) as “high-pressure natural gas pipelines with normal operating pressuresgreater than 415kPA gauge (6opsig) or greater than six inches nominal pipediameter, petroleum pipelines, pressurized sewage pipelines, high-voltage electricsupply lines, conductors, or cables that have a potential to ground of greater thanor equal to 60kv, or hazardous materials pipelines that are potentially hazardous to workers or the public if damaged.”
3. A “Subsurface Installation” is defined in Government Code section 4216 (s) as “any underground pipeline, conduit, duct, wire, or other structure, except nonpressurized sewer lines, non-pressurized storm drains, or other non-pressurized drain lines.”
4. Pursuant to Government Code section 4216.2 the Contractor shall contact the appropriate regional notification center at least two (2) working days but not morethan 14 Days before performing any excavation. The date of the notification shall not count as part of the two-working-day notice. Before notifying the appropriateregional notification center, the Contractor shall delineate the area to be excavated. The Contractor shall request that the utility owners conduct a utilitysurvey and mark or otherwise indicate the location of their service. The Contractorshall furnish to the Engineer written documentation of its contact(s) with the regional notification center prior to commencing excavation at such locations.
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5. After the utility survey is completed, the Contractor shall commence “potholing” or hand digging to determine the actual location of the pipe, duct, or conduit and in accordance with Government Code section 4216.4 if the excavation within the“tolerance zone” of a subsurface installation. The Engineer shall be given noticeprior to commencing potholing operations. The Contractor shall uncover all piping and conduits, to a point one (1) foot below the pipe, where crossings, interferences, or connections are shown on the Drawings, prior to trenching or excavating for any pipe or structures, to determine actual elevations. New pipelines shall be laid to such grade as to clear all existing facilities, which are to remain in service for anyperiod subsequent to the construction of the run of pipe involved.
6. The Contractor’s attention is directed to the requirements of Government Code section 4216.2 (c) which provides: “When the excavation is proposed within 10 feetof a high priority subsurface installation, the operator of the high priority subsurfaceinstallation shall notify the excavator of the existence of the high priority subsurfaceinstallation to set up an onsite meeting prior to the legal excavation start date and time or at a mutually agreed upon time to determine actions or activities requiredto verify the location and prevent damage to the high priority subsurface installation. As part of the meeting, the excavator shall discuss with the operator the method and tools that will be used during the excavation and the informationthe operator will provide to assist in verifying the location of the subsurface installation. The excavator shall not begin excavating until after the completion of the onsite meeting.” The Contractor shall notify the Engineer in advance of this meeting.
C. Utility Relocation and Repair. If interferences occur at locations other than those indicated in the Contract Documents with reasonable accuracy, the Contractor shallnotify the Engineer in writing. The Engineer will supply a method for correcting saidinterferences in accordance with the responsibilities of this Article and GovernmentCode section 4215. Care shall be exercised by the Contractor to prevent damage to adjacent existing facilities and public or private works; where equipment will passover these obstructions, suitable planking shall be placed. If high priority subsurface installations are damaged and the operator cannot be contacted, the Contractor shall call 911 emergency services. Temporary or permanent relocation or alteration of utilities desired by the Contractor for its own convenience shall be the Contractorsresponsibility and it shall make arrangements and bear all costs for such work D. Construction at Existing Utilities. Where the Work to be performed crosses or otherwise interferes with water, sewer, gas, or oil pipelines; buried cable: or otherpublic or private utilities, the Contractor shall perform construction in such a manner so that no damage will result to either public or private utilities. It shall be the responsibility of the Contractor to determine the actual locations of, and make accommodates to maintain, all utilities. Before any utility is taken out of service, permission shall be obtained by the Contractor from the owner. The owner, any impacted resident or business owner and the City will be advised of the nature andduration of the utility outage as well as the Contractor’s plan for providing temporary utilities if required by the owner. The Contractor shall be liable for all damage whichmay result from its failure to maintain utilities during the progress of the Work, and the Contractor shall indemnify City as required by the Contract Documents from all UNDERGROUND FUEL TANK RELOCATION 94.. 007200— GENERAL CONDITIONSPROJECT — Phase III — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.OI)000\40059964. I
claims arising out of or connected with damage to utilities encountered during construction; damages resulting from disruption of service; and injury to persons or damage to property resulting from the negligent, accidental, or intentional breachingof utilities.
7.4 Trenches.
A. Trenches Five Feet or More in Depth. Contractor shall submit to the City at the preconstruction meeting, a detailed plan showing the design of shoring, bracing, sloping or other provisions to be made for worker protection from hazards of cavingground during the excavation of any trench or trenches five feet or more in depth. Ifsuch plan varies from shoring system standards established by the ConstructionSafety Orders of the California Code of Regulations, Department of Industrial Relations, the plan shall be prepared by a California registered civil or structural engineer. The plan shall not be less effective than the shoring, bracing, sloping, orother provisions of the Construction Safety Orders, as defined in the California Codeof Regulations. The Contractor shall designate in writing the ‘competent person” asdefined in Title 8, California Code of Regulations, who shall be present at the WorkSite each day that trenching/excavation is in progress. The “competent person” shall prepare and provide daily trenching/excavation inspection reports to the Engineer.
Contractor shall also submit a copy of its annual California Occupational Safety and Health Administration (Cal/OSHA) trench/excavation permit.
B. Excavations Deeper than Four Feet.
1. If the Work involves excavating trenches or other excavations that extend deeper than four (4) feet below the surface, Contractor shall promptly within three (3) Days, and before the excavation is further disturbed, notify the City in writing of any of the following conditions:
a. Material that the Contractor believes may be material that is hazardous waste, as defined in section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance withprovisions of existing law. b. Subsurface or latent physical conditions at the site differing from those indicated by information made available to bidders prior to the deadline for submitting bids. c. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract
2. The City shall promptly investigate the conditions, and if it finds that the conditions do so materially differ, or do involve hazardous waste, and cause a decrease orincrease in Contractor’s cost of, or the time required for, performance of any partof the Work, shall issue a Change Order under the procedures described in Article9.1 Change Orders and Time Extensions.
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or increase in the Contractor’s cost of, or time required for, performance of any part of the Work, the Contractor shall not be excused from any scheduled completion date provided for by the Contract, but shall proceed with all Work to beperformed under the Contract. Contractor shall retain any and all rights providedeither by contract or by law which pertain to the resolution of disputes and protestsbetween the parties.
ARTICLE 8 -PROSECUTION OF THE WORK
8.1 Contractor’s Means and Methods.
A. Contractor is solely responsible for the means and methods utilized to perform the Work. Contractor shall perform all Work in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor warrants that all employees and Subcontractors shall have sufficient skill and experience to perform the Work assigned to them. Contractor represents that it, its employees andSubcontractors have all licenses, permits, qualifications and approvals of whatevernature that are legally required to perform the Work, and that such licenses and approvals shall be maintained throughout the term of this Contract. Contractor shall perform the Work in full compliance with all applicable state, federal and local laws and to the all jurisdictions having authority over the Project.
8.2 Construction Schedule.
A. General Requirements. The schedule shall be prepared in a critical path method format and in an electronic scheduling program acceptable to the City and asspecified in the Contract Documents. Contractor shall deliver the schedule and all updates to the City in both paper and electronic form. The electronic versions shallbe in the format and include all data used to prepare the schedule.
B. Schedule. The receipt or approval of any schedules by the City shall not in any way relieve the Contractor of its obligations under the Contract Documents. The Contractor is fully responsible to determine and provide for any and all staffing and resources at levels which allow for good quality and timely completion of the Project.
Contractor’s failure to incorporate all elements of Work required for the performanceof the Contract or any inaccuracy in the schedule shall not excuse the Contractor from performing all Work required for a completed Project within the specified Contract Time. If the required schedule is not received by the time the first payment under the Contract is due, Contractor shall not be paid until the schedule is received,reviewed and accepted by the City.
C. Schedule Contents. The schedule shall indicate the beginning and completion dates of all phases of construction; critical path for all critical, sequential time related activities; and ‘float time” for all ‘slack” or “gaps” in the non-critical activities. Theschedule shall include appropriate time allowances and constraints for Submittals,items of interface with Work performed by others, and specified construction, startup and performance tests. All float shall be owned by the Project. Schedulesindicating early or late completion shall not modify or have any effect on the Contract Time, regardless of whether the schedules are reviewed and/or accepted by the City.
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D. Schedule Updates. Contractor shall continuously update its construction schedule.
Contractor shall submit an updated and accurate construction schedule to the City:(1) prior to the start of construction, if there are any changes to the initial schedule;(2) with each progress payment request; and (3) whenever requested to do so by the City. The City may withhold progress payments or other amounts due under the Contract Documents if Contractor fails to submit an updated and accurate construction schedule. Upon the City’s request, Contractor shall submit anyschedules or updates to the City in the native electronic format of the software used to create the schedule. Contractor shall also submit schedules showing a two-weekdetailed look-ahead at weekly meetings conducted with the City. The two-week lookahead schedule shall clearly identify all staffing and other resources which in the Contractor’s judgment are needed to complete the Work within the Contract Time, and it shall clearly state the number of staff to be used on each daily segment of theWork.
E. Acceptance. Acceptance of the schedules by the City will not impose on responsibility for accuracy, for sequencing, scheduling, or progress of the Work, orcompliance with the Contract Documents. Acceptance will not interfere with orrelieve Contractor from Contractor’s full responsibility therefor.
8.3 Time for Completion and Liquidated Damaqes.
A. Time for Completion. The time for completion set forth in Article 2 of the Contract for Construction shall commence: (1) on the date stated in the Notice to Proceed, or (2) if the Notice to Proceed does not specify a commencement date, then on the date of the Notice to Proceed and shall be completed by Contractor in the time specified in the Contract Documents. The City is under no obligation to consider early completion of the Project; and the Contract completion date shall not beamended by the City’s receipt or acceptance of the Contractor’s proposed earliercompletion date. Any difference in time between the Contractor’s early completionand the Contract Time shall be considered a part of the Project float. Contractorshall not be entitled to compensation, and the City will not compensate Contractor, for delays which impact early completion. Contractor shall not, under any circumstances, receive additional compensation from the City (including but notlimited to indirect, general, administrative or other forms of overhead costs) for theperiod between the time of earlier completion proposed by the Contractor and theContract completion date.
B. Liquidated Damaqes. If the Work is not completed within the Contract Time(s), it is understood that the City will suffer damage. In accordance with Government Codesection 53069.85 and Public Contract Code section 7102, being impractical andinfeasible to determine the amount of actual damage, it is agreed that Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sumstipulated in the Contract for each calendar day of delay until the Work is fullycompleted. Contractor and its surety shall be liable for any liquidated damages. Any money due or to become due the Contractor may be retained to cover liquidated damages.
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C. Inclement Weather. Contractor shall abide by the City’s determination of what constitutes inclement weather. Time extensions for inclement weather shall only begranted when the Work stopped during inclement weather is on the critical path of the Project schedule. Contractor shall not be entitled to reverse liquidated damagesfor time extensions resulting from inclement weather.
D. Extension of Time. Contractor’s entitlement to an extension of the Contract Times is limited to a City-caused extension of the critical path, reduced by the Contractor’s concurrent delays, and established by a proper time impact analysis. No timeextension shall be allowed unless, and then only to the extent that, the City-causeddelay extends the critical path beyond the previously approved Contract Time. TheCity shall ascertain the facts and extent of delay and grant extension of time forcompleting the Work when, in its judgment, the facts justify such an extension.Contractor shall not be entitled to an adjustment in the Contract Times for delays within the control of Contractor. Delays attributable to and within the control of a Subcontractor or Supplier shall be deemed to be delays within the control ofContractor. If approved, the increase in time required to complete the Work shall be added to the Contract Time.
E. Reverse Liquidated Damages. Consistent with Public Contract Code section 7102, Contractor will be compensated for damages incurred due to unreasonable delays to the critical path for which the City is responsible. The parties agree thatdetermining Contractor’s exact delay damages are and will continue to be impracticable and extremely difficult. As such, for each calendar day in excess of the time for completion set forth in Article 2 of the Contract, the City shall pay to the Contractor the sum stipulated in the Contract per day. Such amount shall constitute the only payment allowed for any City-caused delays and shall necessarily include all overhead, all profits, all administrative costs, all bond costs, all labor, materials, equipment and rental costs and any other costs, expenses and fees incurred or sustained as a result of such delays. Contractor shall not be entitled to reverseliquidated damages for any change in the Work in which Contractor is compensated for overhead and profit through a change in Unit Price Work or a Change Order resulting in a lump sum or allowed mark-up for the additional Work. The amount ofreverse liquidated damages shall be reduced by Contractor’s concurrent delays.
F. Force Majeure. In accordance with subparagraphs ‘V’ and “E” above, the Contractor shall not be charged liquidated damages, and the City shall not beresponsible, for any delays to the critical path resulting from a Force Majeure Event.
If a delay to the critical path results from a Force Majeure Event, the Contractor will be entitled to a time extension but will not receive an adjustment to the ContractPrice or any other compensation. Such a non-compensable adjustment shall beContractor’s sole and exclusive remedy for such delays.
G. No Damages for Reasonable Delay. The City’s liability to Contractor for delays for which the City is responsible shall be limited to only an extension of time unless such delays were unreasonable under the circumstances. In no case shall the City be liable for any costs which are borne by the Contractor in the regular course ofbusiness, including, but not limited to, home office overhead and other ongoing UNDERGROUND FUEL TANK RELOCATION 98 007200— GENERAL CONDITIONSPROJECT — Phase III — TANK REMOVAL,
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costs. Damages caused by unreasonable City delay shall be based on actual costs only, no proportions or formulas shall be used to calculate any delay damages.
H. Procedure for Time Extensions and Delay Damages. Contractor shall not be entitled to any extension of time or any reverse liquidated damages unless Contractor properly notices the delay and adjustment to compensation and requests a Change Order in accordance with Article 9.1 Change Orders and Time Extensions.Contractor’s failure to timely and fully comply with the Change Order procedures in the Contract Documents shall constitute a waiver of Contractor’s right to a timeextension or reverse liquidated damages.
8.4 Contractor’s Responsibility for Work.
A. Responsibility for, and security of, all Work and materials related to Contractor’s Work is the responsibility of Contractor until final acceptance of the Contractor’sWork by the City. The City shall not be held responsible for the care or protection ofany material or parts of the Work prior to final acceptance. Contractor shall takeevery necessary precaution against injury or damage to any part thereof by theaction of the elements or from any cause whether arising from the execution or nonexecution of the Work and all loss or damage shall be borne by Contractor. TheContractor shall rebuild, repair, restore and make good at its own expense all injuriesor damages to any portion of the Work before its completion and acceptance. In the event of damage proximately caused by an Act of God, as defined by Section 7105of the Public Contract Code, the City will pay for repair or restoration to damagedWork in excess of 5% of the total Bid.
8.5 Occupancy.
A. The City reserves the right to occupy or utilize any portion of the Work at any time before completion, and such occupancy or use shall not constitute acceptance of any part of Work covered by this Contract. This use shall not relieve the Contractor of its responsibilities under the Contract.
8.6 Securities for Money Withheld.
A. Pursuant to section 22300 of the Public Contract Code of the State of California, Contractor may request the City to make retention payments directly to an escrowagent or may substitute securities for any money withheld by the City to ensure performance under the contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the City or with a state or federally chartered bank as the escrow agent who shall return such securities to Contractor upon satisfactory completion of the contract. Deposit ofsecurities with an escrow agent shall be subject to a written agreement substantiallyin the form provided in section 22300 of the Public Contract Code.
8.7 The City’s Right to Suspend/Terminate the Contract.
A. Suspension of Work by the City.
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1. The City in its sole and absolute discretion for any reason or no reason whatsoever may at any time, with or without cause, suspend performance of all or any part of the Work by giving not less than five (5) Days written notice to the Contractor.Such notice of suspension of Work will designate the amount and type of plant,labor, and equipment to be committed to the Project during the period ofsuspension. Contractor shall use its best efforts to utilize its plant, labor, andequipment in such a manner as to minimize costs associated with suspension.
2. Upon receipt of any such notice, Contractor shall, unless the notice requires otherwise: (1) immediately discontinue Work on the date and to the extentspecified in the notice; (2) place no further orders or subcontracts for material,services, or facilities with respect to suspended Work other than to the extent required in the notice; (3) promptly make every reasonable effort to obtain suspension upon terms satisfactory to the City of all orders, subcontracts, andrental agreements to the extent they relate to performance of Work suspended; and (4) continue to protect and maintain the Work including those portions onwhich Work has been suspended.
3. The City shall not be liable for any additional costs, damages or anticipated profits incurred by Contractor or its Subcontractors and the Contract Price shall not beincreased during the period of suspension, except the actual costs incurred by Contractor, excluding overhead and profit for (a) the purpose of safeguarding the Work and material and equipment in transit or at the Site during the period of suspension, (b) Contractor’s or its Subcontractor’s rented equipment which aremaintained at the Site, or (c) other reasonable and unavoidable costs of shutting down the Work, or reassembling personnel and equipment resulting directly fromsuch suspension. Contractor shall be granted an extension of the Contract Timeequal to the number of days performance of Work is suspended; provided, however, that no actual costs or extension of Contract Time shall be granted if the suspension results from Contractor’s non-compliance with the requirements of theContract.
B. Termination for Cause by the City.
1. In the sole estimation of the City, if the Contractor refuses or fails to prosecute the Work or any separable part thereof with such diligence as will insure its completion within the time specified by the Contract Documents, or any extension thereof, orfails to complete such Work within such time, or if the Contractor should be adjudged a bankrupt, or if it should make a general assignment for the benefit of its creditors, or if a receiver should be appointed on account of its insolvency, or the Contractor or any of its subcontractors should violate any of the provisions ofthis Contract, the City may serve written notice upon the Contractor and its surety of the City’s intention to terminate this Contract. This notice of intent to terminateshall contain the reasons for such intention to terminate this Contract, and astatement to the effect that the Contractor’s right to perform this Contract shallcease and terminate upon the expiration of ten (10) Days unless such violationshave ceased and arrangements satisfactory to the City have been made forcorrection of said violations.
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2. After expiration of the ten (10) Day period, the City may terminate the Contract by providing a Notice of Termination to the Contractor. The City may take over andcomplete the Work by any method it may deem appropriate, including enforcement of the Project performance bond. If the City takes over the Work, the City may, without liability for so doing, take possession of and utilize in completing the Work such materials, appliances, plant, and other property belonging to the Contractoras may be on the Site.
3. Contractor shall not be entitled to receive any further payment hereunder as a result of such termination. Contractor and its surety shall be liable to the City for any excess costs or other damages incurred by the City to complete the Work, including professional services and expenses, reasonable overhead, profit, and attorneys fees. This payment obligation shall survive completion of the Project and termination or expiration of this Contract.
C. Termination for Convenience by the City:
1. The City may terminate performance of the Work called for by the Contract Documents in whole or, from time to time, in part, upon ten (10) Days written notice if the City determines that a termination is in the City’s interest. The Contractor shall terminate all or any part of the Work upon delivery to the Contractor of a Notice of Termination specifying that the termination is for the convenience of the City, the extent of termination, and the effective date of such termination.
2. After receipt of Notice of Termination, and except as directed by the City, the Contractor shall, regardless of any delay in determining or adjusting any amounts due under this termination for convenience clause, immediately proceed with thefollowing obligations: (1) stop Work as specified in the Notice; (2) complete any Work specified in the Notice of Termination in a least cost/shortest time manner while still maintaining the quality called for under the Contract Documents; (3) leave the property upon which the Contractor was working and upon which the facility (or facilities) forming the basis of the Contract Document is situated in a safe and sanitary manner such that it does not pose any threat to the public health or safety; (4) terminate all subcontracts to the extent that they relate to the portionsof the Work terminated; and (5) place no further subcontracts or orders, except as necessary to complete the continued portion of the Contract.
3. In case of such termination for the City’s convenience, the Contractor shall be entitled to receive payment for Work actually completed by Contractor in conformity with this Contract prior to Contractor’s receipt of City’s Notice and costs incurred by reason of such termination. Any documentation substantiating costs incurred by the Contractor solely as a result of the City’s exercise of its right to terminate this Contract pursuant to this clause, which costs the Contractor isauthorized under the Contract documents to incur, shall: (1) be submitted to and received by the City no later than 30 Days after the effective date of the Notice of Termination; (2) describe the costs incurred with particularity; and (3) be conspicuously identified as “Termination Costs occasioned by the City’sTermination for Convenience.” If the City rejects any costs, Contractor shall be UNDERGROUND FUEL TANK RELOCATION 101- 001200— GENERAL CONDITIONSPROJECT — Phase III — TANK REMOVAL,
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deemed to waive the rejected costs unless Contractor files a Claim within thirty (30) Days of the rejection pursuant to Article 9.2.
4. Contractor shall be entitled to receive only the amounts payable under this Article, and Contractor specifically waives any claim for any other amounts or damages,including, but not limited to, any claim for consequential damages or lost profits.
The provisions in this Article are in addition to and not in limitation of any other rights or remedies available to the City.
5. Termination of the Contract shall not relieve surety of its obligation for any just claims arising out of or relating to the Work performed.
6. Notwithstanding any other provision of this Article, when immediate action is necessary to protect life and safety or to reduce significant exposure or liability, theCity may immediately order Contractor to cease Work on the Project until such safety or liability issues are addressed to the satisfaction of the City or the Contractis terminated.
7. If the City terminates Contractor for cause, and if it is later determined that the termination was wrongful, such default termination shall automatically beconverted to and treated as a termination for convenience. In such event,Contractor shall be entitled to receive only the amounts payable under this Article,and Contractor specifically waives any claim for any other amounts or damages, including, but not limited to, any claim for consequential damages or lost profit&
8.8 Defective Work.
A. The City May Correct Defective Work.
1. If Contractor fails to correct Defective Work, or to remove and replace rejected Work as required by the City, or if Contractor fails to perform the Work inaccordance with the Contract Documents, or if Contractor fails to comply with anyother provision of the Contract Documents, the City may, after seven (7) Days written notice to Contractor, correct, or remedy any such deficiency.
2. In connection with such corrective or remedial action, the City may exclude Contractor from all or part of the Site, take possession of all or part of the Workand suspend Contractor’s services related thereto, take possession of Contractors tools, appliances, construction equipment and machinery at the Site, and incorporate in the Work all materials and equipment stored at the Site or for which the City has paid Contractor but which are stored elsewhere. Contractor shall allow the City, and the agents, employees, other contractors, and consultants of each of them, access to the Site to enable the City to exercise the rights and remedies tocorrect the Defective Work.
3. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all courtor arbitration or other dispute resolution costs) incurred or sustained by the Citycorrecting the Defective Work will be charged against Contractor, and a ChangeOrder will be issued incorporating the necessary revisions in the Contract UNDERGROUND FUEL TANK RELOCATION -102- 007200— GENERAL CONDITIONS PROJECT— Phase III —TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059(I0000\40059964. I
Documents with respect to the Work; and the City shall be entitled to an appropriate decrease in the Contract Price. Such claims, costs, losses anddamages will include but not be limited to all costs of repair, or replacement of workof others destroyed or damaged by correction, removal, or replacement ofdefective Work.
4. If the Change Order is executed after all payments under the Contract have been paid by the City and the Project retention is held in an escrow account as permittedby the Contract Documents, Contractor will promptly alert the escrow holder, in writing, of the amount of retention to be paid to the City. If the Change Order is executed after release of the Project retention, an appropriate amount will be paid by Contractor to the City. Contractor shall not be allowed an extension of the Contract Time because of any delay in the performance of the Work attributable to the City correcting Defective Work.
B. Acceptance of Defective Work.
1. If, instead of requiring correction or removal and replacement of defective Work, the City prefers to accept it, the City may do so. Contractor shall pay all claims,costs, losses, and damages (including but not limited to all fees and charges ofengineers, architects, attorneys, and other professionals and all court or arbitrationor other dispute resolution costs) attributable to the City’s evaluation of anddetermination to accept such defective Work and for the diminished value of the Work. If any acceptance of Defective Work occurs prior to release of the Project retention, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and the City shall be entitled toan appropriate decrease in the Contract Price, reflecting the diminished value of Work and all costs incurred by the City. If the acceptance of defective occurs after release of the Project retention, an appropriate amount will be paid by Contractor to the City.
8.9 Completion and Acceptance of Work.
A. Final Inspection. Upon written notice from Contractor that the entire Work is complete, the Engineer will promptly make a final inspection with the City and Contractor and will notify Contractor in writing of all particulars in which thisinspection reveals that the Work is incomplete or defective. Contractor shallimmediately take such measures as are necessary to complete such Work orremedy such deficiencies.
B. Final Acceptance. The acceptance of the Work on behalf of the City will be made by the Engineer. Such acceptance by the City shall not constitute a waiver of defects. After Contractor has, in the opinion of the Engineer, satisfactorily completedall corrections identified during the final inspection and has delivered, in accordance with the Contract Documents, all maintenance and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurance,certificates of inspection, Record Documents, and other documents required by theContract Documents, the City shall execute a Notice of Completion, constituting finalacceptance and completion of the Project, except as may be expressly noted.
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8.10 Guarantee of Work.
A. Neither the final payment nor any provision in the Contract Documents shall relieve Contractor of responsibility for faulty materials or workmanship. Contractor herebyguarantees that materials and Work shall be completed in conformance with theContract Documents and that the materials and Work provided will fulfill therequirements of this guarantee. Contractor hereby agrees to repair or replace, at the discretion of the City, any or all Work that may prove to be defective in its workmanship, materials furnished, methods of installation or fail to conform to the Contract Document requirements together with any other Work which may be damaged or displaced by such defect(s) within a period of one (1) year (or asotherwise indicated in the Contract Documents or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the Work, whichever is later) from the date of the Notice of Completion of the Projectwithout any expense whatever to the City, ordinary wear and tear and unusual abuseand neglect excepted. Contractor shall be required to promptly repair or replacedefective equipment or materials, at Contractor’s option. The Contractor shall remedy at its expense any damage to City-owned or controlled real or personalproperty. All costs associated with such corrective actions and testing, including theremoval, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor.
B. For any Work so corrected, Contractor’s obligation hereunder to correct defective Work shall be reinstated for an additional one (1) year period, commencing with thedate of acceptance of such corrected Work. The reinstatement of the one (1) year warranty shall apply only to that portion of Work that was corrected. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with therequirements of the Contract Documents. In the event of Contractor’s failure tocomply with the above-mentioned conditions within ten (10) Days after being notifiedin writing of required repairs, to the reasonable satisfaction of the City, the City shallhave the right to correct and replace any defective or non-conforming Work and any work damaged by such work or the replacement or correction thereof at Contractor’ssole expense. Contractor shall be obligated to fully reimburse the City for anyexpenses incurred hereunder immediately upon demand.
C. In addition to the warranty set forth in this Article, Contractor shall obtain for the City all warranties that would be given in normal commercial practice and assign to theCity any and all manufacturer’s or installer’s warranties for equipment or materialsnot manufactured by Contractor and provided as part of the Work, to the extent thatsuch third-party warranties are assignable and extend beyond the warranty period set forth in this Article. Contractor shall furnish the City with all warranty andguarantee documents prior to final acceptance of the Project by the City as required.
D. When specifically indicated in the Contract Documents or when directed by the Engineer, the City may furnish materials or products to the Contractor for installation.
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cost, expense, or other liability arising therefrom, and shall be responsible to the City for the cost of any repairs, replacement or other costs that would have been covered by the warranty but for such act or failure to act by Contractor.
E. The City shall notify the Contractor, in writing, within a reasonable time after the discovery of any failure, defect, or damage. The Contractor shall within ten (10) Days after being notified commence and perform with due diligence all necessary work to remedy the failure, defect, or damage. If the Contractor fails to promptly remedy any defect or damage, the City shall have the right to replace, repair or otherwise remedy the defect, or damage at the Contractor’s expense.
F. In the event of any emergency constituting an immediate hazard to health, safety, property, or licensees, when caused by Work of the Contractor not in accordance with the Contract requirements, the City may undertake at Contractor’s expense, and without prior notice, all Work necessary to correct such condition.
G. This Article shall not limit City’s rights under this Contract or with respect to latent defects, gross mistakes, or fraud. Nothing in the warranty or in the ContractDocuments shall be construed to limit the rights and remedies available to the City at law or in equity, including, but not limited to, Code of Civil Procedure section 337.15.
ARTICLE 9 -CHANGE ORDERS; DISPUTE RESOLUTION
9.1 Change Orders and Time Extensions.
A. Change Orders. All changes to the Contract, including compensation increases and time extensions, shall be through a written Change Order in accordance with thisArticle. The City, without invalidating the Contract, may order changes in the Work consisting of additions, deletions or other revisions, and Contractor’s compensation and the time for completion shall be adjusted accordingly. Whenever any change is made as provided for herein, such change shall be considered and treated as though originally included in the Contract, and shall be subject to all terms, conditions, and provisions of the original Contract. Contractor shall not be entitled to claim or bring suit for damages, whether for loss of profits or otherwise, on account of any decrease or omission of any item or portion of Work to be done. No dispute, disagreement, or failure of the parties to reach agreement on the terms of the Change Order shall relievethe Contractor from the obligation to proceed with performance of the Work, includingAdditional Work, promptly and expeditiously. Any alterations, extensions of time,Additional Work, or any other changes may be made without securing consent of the Contractor’s surety or sureties.
B. City Directive. The City may direct changes in the Work by delivering a written directive. To the extent the work directive results in a change to compensation or time, Contractor must timely request a Change Order and comply with all Change Orderprocedures in accordance with this Article. Notwithstanding issuance of a work directive, Contractor’s failure to timely request a Change Order shall constitute a waiver by Contractor of any adjustment to compensation or time extension for Work performed under the directive. The City shall not be liable to Contractor for Workperformed or omitted by Contractor in reliance on verbal orders.
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C. Contractors Notice of Change/Delay. If Contractor intends to initiate a Change Order Request, then Contractor shall provide the City with written notice of the underlying facts and circumstances that gave rise to the proposed change within the followingtimes:
1. If due to unknown subsurface or latent physical conditions, within three (3) days from the discovery date or prior to the alterations of the conditions, whichever is earlier.
2. If due to a Force Majeure Event, as soon as reasonably practicable under the conditions, which shall be no longer than three (3) days from the date theContractor discovers that the Force Majeure Event gives rise to a change, unless that the conditions are such that notice within three (3) days is not possible or practicable.
3. If due to any other matter that may involve an adjustment to the Contract Time or the Contract Price, within seven (7) Days from the discovery date.To be considered valid and complete, the notice of change/delay shall include a general statement of the circumstances giving rise to the notice of change/delayand a reasonable order of magnitude estimate of the additional costs and/or time.
If the circumstances give rise to both a cost adjustment and time extension, Contractor shall submit the notice of change and notice of delay concurrently.
D. Request for Change in Compensation and/or Extension of Time. Contractor shall submit a Change Order Request for any adjustment to Contractor’s compensationand/or any extension of time. The Change Order Request shall be made prior to incurring any expense and within fourteen (14) Days from either Contractor’s notice of change/delay or the City’s directive ordering the change. For any costs or information that cannot be determined at the time Contractor submits the Change Order Request, Contractor shall submit to the City notice of the costs or information and all supporting documentation within five (5) Days of when the costs or other information becomesubject to determination. The Change Order Request shall include all of the following information (unless inapplicable to the change):
1. A detailed description of the circumstances giving rise to the request;
2. A complete itemized cost proposal, including itemized pricing for first tier Subcontractors;
3. Supporting documentation for all costs;
4. A time impact analysis showing the impact of the delay to the critical path to completion;
5. If any added costs or information cannot be determined at the time of the Change Order Request, the reason the costs or information cannot be determined at the time; and
6. Certification to the accuracy of the Change Order Request under penalty of perjury.
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The time impact analysis shall be in the critical path method format and shall show the sequencing of all critical and non-critical new activities and/or activity revisionsaffected by the delay, with logic ties to all affected existing activities noted on theschedule. The City may demand, and Contractor shall provide, any additional information supporting the Change Order Request, including but not limited tonative electronic format version of schedules and time impact analyses. Contractor shall provide the requested additional information within five (5) Days of the request.
E. City’s Final Decision on Change Order: Ordered Changes. If the City denies the Change Order Request or disagrees with the proposal submitted by Contractor, it willnotify the Contractor, and the City will provide its opinion of the appropriate price and/or time extension. If no agreement can be reached, the City shall have the right to orderthe Work performed on a time and materials basis or to issue a unilateral Change Order setting forth the City’s determination of the reasonable additions or savings in costs and time attributable to the extra or deleted work. The City shall also have the right to order changes in the Work to be performed promptly by the Contractor on a time and materials basis or to issue a unilateral Change Order setting forth the City’s determination of the reasonable additions or savings in costs and time attributable to the extra or deleted work. The City’s determination shall become final and binding ifthe Contractor fails to submit a claim in writing in accordance with Article 9.2 to the City within fourteen (14) Days of the issuance of the unilateral Change Order, disputing the terms of the unilateral Change Order and providing such supporting documentation for its position as the City may reasonably require.
F. Contractor’s Waiver of Further Relief.
1. Contractor recognizes and acknowledges that timely submission of a formal written notice of change/delay and Change Order Request, whether or not thecircumstances of the change may be known to the City or available to the City through other means, is not a mere formality but is of crucial importance to theability of the City to promptly identify, prioritize, evaluate and mitigate the potentialeffects of changes. Any form of informal notice, whether verbal or written (including, without limitation, statements in requests for information, statements in Submittals, statements at any job meeting or entries on monthly reports, daily logsor job meeting minutes), that does not strictly comply with the formal requirements of this Article, shall accordingly be insufficient.
2. CONTRACTOR’S FAILURE TO PROVIDE A COMPLETE AND TIMELY NOTICE
OF CHANGEIDELAY ANDIOR CHANGE ORDER REQUEST, OR TO COMPLY
WITH ANY OTHER REQUIREMENT OF THIS ARTICLE, SHALL CONSTITUTEA WAIVER BY CONTRACTOR OF THE RIGHT TO A CONTRACT
ADJUSTMENT ON ACCOUNT OF SUCH CIRCUMSTANCES AND A WAIVER OF ANY RIGHT TO FURTHER RECOURSE OR RECOVERY BY REASON OFOR RELATED TO SUCH CHANGE BY MEANS OF THE CLAIMS DISPUTERESOLUTION PROCESS OR BY ANY OTHER LEGAL PROCESS OTHERWISEPROVIDED FOR UNDER APPLICABLE LAWS.
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G. Change Order Format. A Change Order signed by the Contractor indicates the Contractor’s agreement therewith, including any adjustment in compensation or extension of time, and the full and final settlement of all costs (direct, indirect andoverhead) related to the Work authorized by the Change Order. The City maydesignate the forms to be used for notices, requests, and Change Orders. If sodesignated, Contractor may only use such forms. Contractor shall not reserve a right to assert impact costs, extended job site costs, extended overhead, constructive acceleration and/or actual acceleration beyond what is stated in the Change Order.
No Claims shall be allowed for impact, extended overhead costs, constructive acceleration and/or actual acceleration due to a multiplicity of changes and/orclarifications. The Contractor may not change or modify the City’s Change Order form in an attempt to reserve additional rights.
H. Determining Adjustments to Compensation.
1. Limitation on Costs. Contractor shall not be entitled to any compensation for Work subject to a Change Order except as expressly set forth in this Article. The mark up added in instances of Additional Work shall constitute the entire amount ofprofit, any mark-ups, any field or home office overhead costs, including personnel, equipment or office space, any materials, or any costs of equipment idle time forsuch Work.
2. Unit Price Change Orders.a. When the actual quantity of a Unit Price Work item varies from the Bid Schedule, compensation for the change in quantity will be calculated by multiplying the actualquantity by the unit price. This calculation may result in either an additive ordeductive Change Order. Bid items included on the Bid Schedule may bededucted from the Work in their entirety without any negotiated extra costs.
Because Unit Price Work includes overhead and profit as determined by Contractor at the time of its Bid submission, no mark up or deduction for overheadand profit will be allowed. b. The City or Contractor may initiate a Change Order or Change Order Request to adjust the Contract Price in accordance with Contractor Documents based onactual quantities of Unit Price Work. The City or Contractor may make a claim foran adjustment in the Unit Price in accordance with the Contract Documents if: (1)the quantity of any item of Unit Price Work performed by Contractor differs bytwenty-five percent (25%) or more from the estimated quantity of such item indicated in the Contract; (2) there is no corresponding adjustment with respect to any other item of Work; and (3) Contractor believes that Contractor is entitled toan increase in unit price as a result of having incurred additional expense or the City believes that the City is entitled to a decrease in unit price and the parties areunable to agree as to the amount of any such increase or decrease.
3. Lump Sum Change Orders. Whenever possible, any changes affecting compensation shall be in a lump sum mutually agreed by the Contractor and the City.
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4. Time and Materials Change Orders. The City may direct the Contractor to proceed with the Additional Work with payment to be made on the basis of actual cost ofthe labor and materials required to complete the Additional Work. If the Project isfederally funded, a time and materials Change Order shall only be issued after adetermination that no other Change Order is suitable and the Change Order shall include a ceiling price that the Contractor exceeds at its own risk.
5. Federally Funded Proiects. For any change in price to the Contract, general and administrative expenses shall be negotiated and must conform to the cost principles set forth under at 2 C.F.R. Part 200, subpart E, and profit shall be negotiated as a separate element of the cost. To establish a fair and reasonableprofit, consideration must be given to the complexity of the Additional Work to beperformed, the risk borne by the Contractor, the Contractors investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work.
6. Allowed Costs. Estimates for lump sum quotations and accounting for time-andmaterial work shall be limited to direct expenditures necessitated specifically by the change and shall be segregated as follows:
a. Labor. The costs of labor will be the actual cost for wages prevailing locally for each craft or type of worker at the time the work is done, plus employer paymentsof payroll taxes and insurance, health and welfare, pension, vacation,apprenticeship funds, and other direct costs resulting from federal, state or locallaws, as well as assessment or benefits required by lawful collective bargainingagreements. The use of a labor classification which would increase the cost willnot be permitted unless the Contractor establishes the necessity for such additional costs. Labor costs for equipment operators and helpers shall be reported only when such costs are not included in the invoice for equipment rental.Estimated labor hours must only include hours for those workmen and working foremen directly involved in performing the change order work. Supervision above the level of working foremen (such as general foremen, superintendent, project manager, etc.) is considered to be included in the markup percentages as outlinedbelow. Note that no separate allowances for warranty expense will be allowed as a direct cost of a change order. Costs attributed to warranty expenses will beconsidered to be covered by the markup. Labor burden allowable in ChangeOrders shall be defined as employer’s net actual cost of payroll taxes (FICA, Medicare, SUTA, FUTA), net actual cost for employer’s cost of union benefits (or other usual and customary fringe benefits if the employees are not unionemployees), and net actual cost to employer for worker’s compensation insurancetaking into consideration adjustments for experience modifiers, premiumdiscounts, dividends, rebates, expense constants, assigned risk pool costs, netcost reductions due to policies with deductibles for self-insured losses, assigned risk rebates, etc. Contractor shall reduce their standard payroll tax percentages toproperly reflect the effective cost reduction due to the estimated impact of the annual maximum wages subject to payroll taxes. An estimated percentage for labor burden may be used for pricing change orders. However, the percentageused for labor burden to price Change Orders will be examined at the conclusion of the Project and an adjustment to the approved Change Orders will be processed UNDERGROUND FUEL TANK RELOCATION -109- 007200— GENERAL CONDITIONSPROJECT — Phase III — TANK REMOVAL,
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if it is determined that the actual labor burden percentage should have been more or less than the estimated percentage used.
b. Materials. The cost of materials reported shall be at the lowest current price at which such materials are locally available in the quantities involved, plus sales tax, freight and delivery. Materials costs shall be based upon Supplier or manufacturer’s invoice.
c. Tool and Equipment Use. Regardless of ownership, the rates to be used in determining equipment use shall not exceed listed rates prevailing locally at equipment rental agencies, or distributors, at the time the work is performed. The Contractor shall furnish cost data supporting the establishment of the rental rate.
The rental rate to be applied for use of each items of equipment shall be the rate resulting in the least total cost to the City for the total period of use. The City shall make the flnal determination as to an equitable rental rate for the equipment. Nopayment will be made for the use of small tools, which have a replacement value of $1,000 or less. The rental time to be paid for equipment shall be the time theequipment is in productive operation on the Additional Work being performed.
Rental time will not be allowed while equipment is inoperative due to breakdowns.
All equipment shall, in the opinion of the City, be in good working condition and suitable for the purpose for which the equipment is to be used. Equipment with no direct power unit shall be powered by a unit of at least the minimum rating recommended by the manufacturer. Before construction equipment is used on any Additional Work, the Contractor shall plainly stencil or stamp an identifying number thereon at a conspicuous location, and shall furnish to the City, in duplicate, a description of the equipment and its identifying number. When hourly rates are listed, any part of an hour less than 30 minutes of operation shall be considered to be 1/2-hour of operation, and any part of an hour greater than 30 minutes will be considered one hour of operation. When daily rates are listed, anypart of a day less than 4 hours operation shall be considered to be 1/2-day of operation.
7. Allowed Mark-up. The allowed mark-up for any and all overhead (including supervision and home and field office costs) and profit on work added to theContract shall be determined in accordance with the following provisions:
a. “Net Cost” is defined as the actual costs of labor, materials and tools and equipment only, excluding overhead and profit. The costs of applicable insuranceand bond premium will be reimbursed to the Contractor and Subcontractors at cost only, without mark-up. Contractor shall provide the City with documentation of thecosts, including but not limited to payroll records, invoices, and such other information as the City may reasonably request.
b. For Work performed by the Contractor’s forces the allowed mark-up shall not exceed fifteen (15%) percent of labor costs, ten percent (10%) of material costs,and ten percent (10%) of the cost of tools and equipment use. c. For Work performed by a Subcontractor, the added cost for overhead and profit shall not exceed fifteen percent (15%) of the Subcontractor’s Net Cost of the Work UNDERGROUND FUEL TANK RELOCATION -110- 007200—GENERAL CONDITIONSPROJECT — Phase III -TANK REMOVAL,
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to which the Contractor may add up to five percent (5%) of the Subcontractor’s Net Cost.
d. For Work performed by a sub-subcontractor, the added cost for overhead and profit shall not exceed fifteen percent (15%) of the sub-subcontractor’s Net Cost for Work to which the Subcontractor and Contractor may each add up to an additional five percent (5%) of the Net Cost of the lower tier subcontractor. e. No additional mark-up will be allowed for lower tier subcontractors, and in no case shall the added cost for overhead and profit payable by the City exceed twentyfive percent (25%) of the Net Cost as defined herein, of the party that performs the Work.
8. Documentation of Time-and-Material Costs.
a. T&M Daily Sheets. Contractor must submit timesheets, materials invoices, records of equipment hours, and records of rental equipment hours to the City’s for anapproval signature each day that Work is performed on a time-and-material basis.The Engineer’s signature on time sheets only serves as verification that the Work was performed and is not indicative of the City’s agreement to Contractor’s entitlement to the cost.
b. T&M Summary Sheet. Contractor shall submit a T&M Summary Sheet, which shall include total actual costs, within five (5) Days following completion of Additional Work on a time-and-material basis. Contractor’s total actual cost shall be presented in a summary table in an electronic spreadsheet file by labor, material, equipment, and any other costs, along with documentation supporting the costs.Contractor’s failure to submit the T&M Summary Sheet within five (5) Days ofcompletion of the Additional Work will result in Contractor’s waiver for any reimbursement of any costs associated with the Additional Work.
9. Excluded Costs. The following costs or any other home or field office overhead costs, all of which are to be considered administrative costs covered by theContractor’s mark-up, shall not be allowed costs and shall not be included in anylump sum proposals or time-and-materials invoices:
a. Overhead Cost. Payroll costs and other compensation of Contractor’s officers, executives, principals, general managers, engineers, architects, estimators,attorneys, auditors, accountants, purchasing and contracting agents, timekeepers,clerks, and other personnel employed by Contractor whether at the Site or inContractor’s principal office or any branch office, material yard, or shop for generaladministration of the Work; b. Office Expenses. Expenses of Contractor’s principal and branch offices; c. Capital Expenses. Any part of Contractor’s capital expenses, including interest on Contractor’s capital employed for the Additional Work and charges againstContractor for delinquent payments; UNDERGROUND FUEL TANK RELOCATION -111- 007200— GENERAL CONDITIONSPROJECT — Phase Ill — TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.00000\40059964. I
d. Negligence. Costs due to the negligence of Contractor or any Subcontractor or Supplier, or anyone directly or indirectly employed by any of them or for whoseacts any of them may be liable, including without limitation the correction of Defective Work, disposal of materials or equipment wrongly supplied, and making good any damage to property;
e. Small Tools. Cost of small tools valued at less than $1000 and that remain the property of Contractor;
f. Administrative Costs. Costs associated with the preparation of Change Orders (whether or not ultimately authorized), cost estimates, or the preparation or filing of Claims;
g. Anticipated Lost Profits. Expenses of Contractor associated with anticipated lost profits or lost revenues, lost income or earnings, lost interest on earnings, orunpaid retention; h. Home Office Overhead. Costs derived from the computation of a “home office overhead” rate by application of the Eichleay, Allegheny, burden fluctuation, orother similar methods; i. Special Consultants and Attorneys. Costs of special consultants or attorneys, whether or not in the direct employ of Contractor, employed for services specifically related to the resolution of a Claim, dispute, or other matter arising out of or relating to the performance of the Additional Work.
j. Other. Other overhead or general expense costs of any kind and the cost of any item not specifically and expressly included in the Contract Documents; including but not limited to: submittals, drawings, field drawings, shop drawings, includingsubmissions of drawings; field inspection; general superintendence; computerservices; reproduction services; salaries of project engineer, superintendent, timekeeper, storekeeper, and secretaries; janitorial services; small tools, incidentals and consumables; temporary on-site facilities (offices, telephones, highspeed internet access, plumbing, electrical power, lighting; platforms, fencing, water); surveying; estimating; protection of work; handling and disposal fees; final cleanup; other incidental work; related warranties; insurance and bond premiums.
9.2 Procedure for Resolving Claims.
A. Prereguisites. Contractor shall timely comply with any and all requirement of the Contract Documents pertaining to notices and requests for changes to the Contract Time or Contract Price, including but not limited to all requirements of Article 9.1, as a prerequisite to filing any claim governed by this Article. The failure to timely submita notice of delay or notice of change, or to timely request a change to the time forcompletion or Contractor’s compensation, or to timely provide any other notice orrequest required herein shall constitute a waiver of the right to further pursue theclaim under the Contract or at law.
B. Intent. Effective January 1, 1991, Section 20104 et seq., of the California Public Contract Code prescribes a process utilizing informal conferences, non-binding UNDERGROUND FUEL TANK RELOCATION 112 007200—GENERAL CONDITIONSPROJECT — Phase III —TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.00000\40059964,1
judicial supervised mediation, and judicial arbitration to resolve disputes on construction claims of $375,000 or less. Effective January 1,2017, Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims. The intent of this Article is to implementSections 20104 et seq. and Section 9204 of the California Public Contract Code.
This Article shall be construed to be consistent with all applicable law, including but not limited to these statutes.
C. Claims. For purposes of this Article, “Claim” means a separate demand by the Contractor for:
1. An adjustment to the time for completion including, without limitation, for relief from damages or penalties for delay assessed by the City;
2. Payment by the City of money or damages arising from Work done by or on behalf of the Contractor pursuant to the Contract, payment for which is not otherwiseexpressly provided or to which the Contractor is not otherwise entitled; or
3. An amount the payment of which is disputed by the City.
A “Claim” does not include any demand for payment for which the Contractor hasfailed to provide notice, request a Change Order, or otherwise failed to follow any procedures contained in the Contract Documents.
D. Filing Claims. Claims governed by this Article may not be filed unless and until the Contractor completes any and all requirements of the Contract Documentspertaining to notices and requests for changes to the Contract Time or ContractPrice, and Contractor’s request for a change has been denied in whole or in part.Claims governed by this Article must be filed no later than thirty (30) Days after arequest for change has been denied in whole or in part or after any other event givingrise to the Claim. The Claim shall be submitted in writing to the City and shall include on its first page the following words in 16 point capital font: “THIS ISA CLAIM.” TheClaim shall include the all information and documents necessary to substantiate theClaim, including but not limited to those identified below. Nothing in this Article isintended to extend the time limit or supersede notice requirements otherwiseprovided by Contract Documents. Failure to follow such contractual requirements shall bar any Claims or subsequent proceedings for compensation or paymentthereon.
E. Documentation. The Contractor shall submit all Claims in the following format:
1. Summary description of Claim including basis of entitlement, merit and amount of time or money requested, with specific reference to the Contract Document provisions pursuant to which the Claim is made
2. List of documents relating to Claim:a. Specifications b. Drawings
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c. Clarifications (Requests for Information)
d. Schedulese. Other3. Chronology of events and correspondence
4. Narrative analysis of Claim merit
5. Analysis of Claim cost, including calculations and supporting documents
6. Time impact analysis in the form required by the Contract Documents or, if the Contract Documents do not require a particular format, CPM format, if anadjustment of the Contract Time is requested F. City’s Response. Upon receipt of a Claim pursuant to this Article, the City shall conduct a reasonable review of the Claim and, within a period not to exceed 45 Days,shall provide the Contractor a written statement identifying what portion of the Claimis disputed and what portion is undisputed. Any payment due on an undisputedportion of the Claim will be processed and made within 60 Days after the City issuesits written statement.
1. If the City needs approval from its governing body to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the Claim, and the City’s governing body does not meet within the 45 Days or within the mutually agreed to extension of time following receipt of a Claim sent by registered mail or certified mail, return receipt requested, the City shall have up to three (3) Days following the next duly publicly noticed meeting of the City’sgoverning body after the 45-Day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputedportion.
2. Within 30 Days of receipt of a Claim, the City may request in writing additional documentation supporting the Claim or relating to defenses or Claims the City may have against the Contractor. If additional information is thereafter required, it shallbe requested and provided pursuant to this subdivision, upon mutual agreement of the City and the Contractor. The City’s written response to the Claim, as further documented, shall be submitted to the Contractor within 30 Days (if the Claim is less than $50,000, within 15 Days) after receipt of the further documentation, or within a period of time no greater than that taken by the Contractor in producingthe additional information or requested documentation, whichever is greater.
G. Meet and Confer. If the Contractor disputes the City’s written response, or the City fails to respond within the time prescribed, the Contractor may so notify the City, inwriting, either within 15 Days of receipt of the City’s response or within 15 Days ofthe City’s failure to respond within the time prescribed, respectively, and demand inwriting an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand, the City shall schedule a meet and conferconference within 30 Days for settlement of the dispute.
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H. Mediation. Within 10 business days following the conclusion of the meet and confer conference, if the Claim or any portion of the Claim remains in dispute, the City shall provide the Contractor a written statement identifying the portion of the Claim thatremains in dispute and the portion that is undisputed. Any payment due on anundisputed portion of the Claim shall be processed and made within 60 Days after the City issues its written statement. Any disputed portion of the Claim, as identified by the Contractor in writing, shall be submitted to nonbinding mediation, with the City and the Contractor sharing the associated costs equally. The public entity and Contractor shall mutually agree to a mediator within 10 business days after the disputed portion of the Claim has been identified in writing, unless the parties agreeto select a mediator at a later time.
1. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regardto the disputed portion of the Claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutralmediator.
2. For purposes of this Article, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which anindependent third party or board assists the parties in dispute resolution throughnegotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this Article.
3. Unless otherwise agreed to by the City and the Contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced.
4. The mediation shall be held no earlier than the date the Contractor completes the Work or the date that the Contractor last performs Work, whichever is earlier. All unresolved Claims shall be considered jointly in a single mediation, unless a new unrelated Claim arises after mediation is completed.
Procedures After Mediation. If following the mediation, the Claim or any portion remains in dispute, the Contractor must file a Claim pursuant to Chapter 1(commencing with Section 900) and Chapter 2 (commencing with Section 910) ofPart 3 of Division 3.6 of Title 1 of the Government Code prior to initiating litigation.
For purposes of those provisions, the running of the period of time within which a Claim must be filed shall be tolled from the time the Contractor submits his or her written Claim pursuant to subdivision (a) until the time the Claim is denied, including any period of time utilized by the meet and confer conference.
J. Civil Actions. The following procedures are established for all civil actions filed to resolve Claims of $375,000 or less:
1. Within 60 Days, but no earlier than 30 Days, following the filing or responsive pleadings, the court shall submit the matter to non-binding mediation unless waived by mutual stipulation of both parties or unless mediation was held prior to commencement of the action in accordance with Public Contract Code section9204 and the terms of this Contract. The mediation process shall provide for the UNDERGROUND FUEL TANK RELOCATION 115 007200— GENERAL CONDITIONSPROJECT— Phase III —TANK REMOVAL,INSTALLATION AND SITE REMEDIATION 65059.00000\40059964. I
selection within 15 Days by both parties of a disinterested third person as mediator, shall be commenced within 30 Days of the submittal, and shall be concluded within 15 Days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court.
2. If the matter remains in dispute, the case shall be submitted to judicial arbitralion pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The Civil Discovery Act of 1986 (Article 3 (commencing with Section 2016) of Chapter3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceedingbrought under this subdivision consistent with the rules pertaining to judicial arbitration. In addition to Chapter 2.5 (commencing with Section 114110) of Title 3 of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced in construction law, and (B) any party appealing an arbitration award who does not obtain a more favorable judgment shall, in addition to payment ofcosts and lees under that chapter, also pay the attorney’s fees on appeal of theother party.
K. Government Code Claim Procedures.
1. This Article does not apply to tort claims and nothing in this Article is intended nor shall be construed to change the time periods for filing tort claims or actionsspecified by Chapter 1 (commending with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.5 of Title 1 of the Government Code.
2. In addition to any and all requirements of the Contract Documents pertaining to notices of and requests for adjustment to the Contract Time, Contract Price, or compensation or payment for Additional Work, disputed Work, construction claimsand/or changed conditions, the Contractor must comply with the claim proceduresset forth in Government Code Section 900, et seq. prior to filing any lawsuit against the City.
3. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to adjustment of the Contract Time or Contract Pricefor Additional Work, disputed Work, construction claims, and/or changedconditions have been followed by Contractor. If Contractor does not comply withthe Government Code claim procedure or the prerequisite contractualrequirements, Contractor may not file any action against the City.
4. A Government Code claim must be filed no earlier than the date the Work is completed or the date the Contractor last performs Work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved Claims known to Contractor or that should reasonably by known to Contractor excepting only new unrelated Claims that arise after the Government Code claim is submitted.
L. Non-Waiver. The City’s failure to respond to a Claim from the Contractor within the time periods described in this Article or to otherwise meet the time requirements of UNDERGROUND FUEL TANK RELoCATION 116 001200— GENERAL CONDITIONSPROJECT— Phase III —TANK REMOVAL,
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this Article shall result in the Claim being deemed rejected in its entirety, and shall not constitute a waiver of any rights under this Article.
ARTICLE 10 - MEASUREMENT; PAYMENT
10.1 Cost Breakdown.
A. Lump Sum Work. Contractor shall furnish on forms approved by the City within ten (10) Days of the Notice to Proceed, a schedule of values allocating the entireContract Price to the various portions of the Work and prepared in such a form and supported by such data to substantiate its accuracy as the Engineer may require.
This schedule of values, unless objected to by the Engineer, shall be used as a basisfor reviewing the Contractor’s applications for payment. Contractor shall submit the schedule of values prior to submitting its first application for payment, and the City will not issue any payment until it receives and approves the schedule of values.
B. Unit Price Work. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Price will be deemed to include for allUnit Price Work an amount equal to the sum of the unit price for each separatelyidentified item of Unit Price Work multiplied by the estimated quantity of each item as indicated in the Contract. The estimated quantities of items of Unit Price Workare not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Each unit price will be deemed to include anamount considered by Contractor to be adequate to cover Contractor’s overheadand or profit for each separately identified item. Unless otherwise specified, payment will be based on the actual quantities of Work as verified and approved by the Engineer, based on the price per unit as set forth in the Bid Schedule.
10.2 Progress Estimates and Payment.
A. By the tenth (10th) Day of the following calendar month, Contractor shall submit to Engineer a payment request which shall set forth in detail the value of the Work done for the period beginning with the date Work was first commenced and ending on theend of the calendar month for which the payment request is prepared. Contractorshall include an adjusted list of actual quantities, verified by the Engineer, for unit price items listed, if any, in the Bid. Contractor shall include any amount earned for authorized Change Orders. Contractor shall certify under penalty of perjury, that allcost breakdowns and periodic estimates accurately reflect the Work on the Project.
B. From the total thus computed, a deduction shall be made in the amount of five percent (5%) for retention, except where the City has adopted a finding that the Workdone under the Contract is substantially complex, and then the amount withheld asretention shall be the percentage specified in the Notice Inviting Bids. The amountcomputed, less the amount withheld for retention and any amounts withheld as set forth below, shall be the amount of the Contractor’s payment request.
C. The City may withhold a sufficient amount or amounts of any payment or payments otherwise due to Contractor, as in its judgment may be necessary to cover:
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1. Payments which may be past due and payable for just claims against Contractor or any Subcontractors for labor or materials furnished in and about the performance of work on the Project under this Contract.
2. Defective Work not remedied.3. Failure of Contractor to make proper payments to his Subcontractor or for material or labor.
4. Completion of the Contract if there is a reasonable doubt that the Work can be completed for balance then unpaid.
5. Damage to another contractor or a third party.6. Amounts which may be due the City for claims against Contractor.7. Failure of Contractor to keep the Record Drawings up to date.
8. Failure to provide update on construction schedule as required herein.9. Site cleanup.
10. Failure to comply with Contract Documents.11. Liquidated damages.
12. Legally permitted penalties.
D. The City may apply such withheld amount or amounts to payment of such claims or obligations at its discretion with the exception of subsections (C)(1), (3), and (5) ofthis Article, which must be retained or applied in accordance with applicable law. Inso doing, the City shall be deemed the agent of Contractor and any payment so made by the City shall be considered as a payment made under contract by the City to Contractor and the City shall not be liable to Contractor for such payments made in good faith. Such payments may be made without prior judicial determination of claim or obligations. The City will render Contractor a proper accounting of such funds disbursed on behalf of Contractor.
E. Upon receipt, the Engineer shall review the payment request to determine whether it is undisputed and suitable for payment. If the payment request is determined tobe unsuitable for payment, it shall be returned to Contractor as soon as practicablebut not later than seven (7) Days after receipt, accompanied by a document setting forth in writing the reasons why the payment request is not proper. The City shall make the progress payment within 30 Days after the receipt of an undisputed andproperly submitted payment request from Contractor, provided that a release of liens and claims has been received from the Contractor pursuant to Civil Code section 8132. The number of days available to the City to make a payment without incurringinterest pursuant to this paragraph shall be reduced by the number of Days by which the Engineer exceeds the seven (7) Day requirement.
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F. A payment request shall be considered properly executed if funds are available for payment of the payment request and payment is not delayed due to an audit inquiryby the financial officer of the City.
G. The City shall have the right to adjust any estimate of quantity and to subsequently correct any error made in any estimate for payment.
10.3 Final Acceptance and Payment
A. Following the City’s acceptance of the Work, the Contractor shall submit to the City a written statement of the final quantities of unit price items for inclusion in the final payment request. The City shall have the right to adjust any estimate of quantity and to correct any error made in any estimate for payment.
B. When the Work has been accepted there shall be paid to Contractor a sum equal to the Contract Price less any amounts previously paid Contractor and less any amounts withheld by the City from Contractor under the terms of the Contract. The final five percent (5%), or the percentage specified in the Notice Inviting Bids wherethe City has adopted a finding of substantially complete, shall not become due and payable until as required by Public Contract Code section 7107. If the Contractorhas placed securities with the City as described herein, the Contractor shall be paid a sum equal to one hundred percent (100%) of the Contract Price less any amountsdue the City under the terms of the Contract.
C. Unless Contractor advises the City in writing prior to acceptance of the final five percent (5%) or the percentage specified in the Notice Inviting Bids where the Cityhas adopted a finding of completion, or the return of securities held as described herein, said acceptance shall operate as a release to the City of all claims and allliability to Contractor for all things done or furnished in connection with this Work and for every act of negligence of the City and for all other claims relating to or arisingout of this Work. If Contractor advises the City in writing prior to acceptance of final payment or return of the securities that there is a dispute regarding the amount due the Contractor, the City may pay the undisputed amount contingent upon theContractor furnishing a release of all undisputed claims against the City with thedisputed claims in stated amounts being specifically excluded by Contractor from theoperation of the release. No payments, however, final or otherwise, shall operate to release Contractor or its sureties from the faithful performance bond, labor andmaterial payment bond, or from any other obligation under this Contract.
D. In case of termination of the Contract any unpaid balance shall be and become the sole and absolute property of the City to the extent necessary to repay the City anyexcess in the cost of the Work above the Contract Price.
E. Final payment shall be made no later than 60 Days after the date of acceptance of the Work by the City or the date of occupation, beneficial use and enjoyment of theWork by the City including any operation only for testing, start-up or commissioning accompanied by cessation of labor on the Work, provided that a release of liens andclaims has been received from the Contractor pursuant to Civil Code section 8136.
In the event of a dispute between the City and the Contractor, the City may withhold from the final payment an amount not to exceed 150% of the disputed amount.
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F. Within ten (10) Days from the time that all or any portion of the retention proceeds are received by Contractor, Contractor shall pay each of its Subcontractors from whom retention has been withheld each Subcontractor’s share of the retention received. However, if a retention payment received by Contractor is specifically designated for a particular Subcontractor, payment of the retention shall be made to the designated Subcontractor if the payment is consistent with the terms of the subcontract.
ARTICLE 11 -MISCELLANEOUS
11.1 Patents.
A. Contractor shall hold and save the City, officials, officers, employees, and authorized volunteers harmless from liability of any nature or kind of claim therefrom including costs and expenses for or on account of any patented or unpatented invention,article or appliance manufactured, furnished or used by Contractor in theperformance of this Contract.
11.2 Document Retention & Examination
A. In accordance with Government Code section 8546.7, records of both the City and the Contractor shall be subject to examination and audit by the State Auditor General for a period of three (3) years after final payment. Contractor shall make availableto the City any of the Contractor’s other documents related to the Project immediately upon request of the City. In addition to the State Auditor rights above, the City shallhave the right to examine and audit all books, estimates, records, contracts, documents, bid documents, subcontracts, and other data of the Contractor (including computations and projections) related to negotiating, pricing, or performing themodification in order to evaluate the accuracy and completeness of the cost orpricing data at no additional cost to the City, for a period of four (4) years after finalpayment.
11.3 Notice.
A. All notices shall be in writing and either served by personal delivery or mailed to the other party. Written notice to the Contractor shall be addressed to Contractor’sprincipal place of business unless Contractor designates another address in writing for service of notice. Notice to the City shall be addressed to the City as designated in the Notice Inviting Bids unless the City designates another address in writing forservice of notice. Notice shall be effective upon receipt or five (5) Days after beingsent by first class mail, whichever is earlier. Notice given by facsimile shall not beeffective unless acknowledged in writing by the receiving party.
11.4 Notice of Third Party Claims
A. Pursuant to Public Contract Code section 9201, the City shall provide the Contractor with timely notification of the receipt of any third-party claims relating to the Contract.The City is entitled to recover reasonable costs incurred in providing such notification.
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11.5 State License Board Notice
A. Contractors are required by law to be licensed and regulated by the Contractors State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4)years of the date of the alleged violation. A complaint regarding a latent act oromission pertaining to structural defects must be filed within ten (10) years of thedate of the alleged violation. Any questions concerning a contractor may be referredto the Registrar, Contractors’ State License Board, P.O. Box 26000, Sacramento,California 95826.
11.6 Assignment of Contract
A. Contractor shall not assign, transfer, convey, sublet or otherwise dispose of the rights or title of interest of any or all of this contract without the prior written consent of the City. Any assignment or change of Contractor’s name of legal entity without the written consent of the City shall be void. Any assignment of money due or to become due under this Contract shall be subject to a prior lien for services rendered or material supplied for performance of Work called for under the Contract Documents in favor of all persons, firms, or corporations rendering such services or supplying such materials to the extent that claims are filed pursuant to the Civil Code,the Code of Civil Procedure or the Government Code.
11.7 Change In Name And Nature Of Contractor’s Legal Entity.
A. Should a change be contemplated in the name or nature of the Contractor’s legal entity, the Contractor shall first notify the City in order that proper steps may be taken to have the change reflected on the Contract and all related documents. No changeof Contractor’s name or nature will affect the City’s rights under the Contract, including but not limited to the bonds.
11.8 Prohibited Interests
A. No City official or representative who is authorized in such capacity and on behalf of City to negotiate, supervise, make, accept, or approve, or to take part in negotiating,supervising, making, accepting or approving any engineering, inspection,construction or material supply contract or any subcontract in connection withconstruction of the project, shall be or become directly or indirectly interested financially in the Contract.
11.9 Controlling Law
A. Notwithstanding any subcontract or other contract with any Subcontractor, Supplier, or other person or organization performing any part of the Work, this Contract shall be governed by the law of the State of California excluding any choice of lawprovisions.
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11.10 Jurisdiction; Venue
A. Contractor and any Subcontractor, Supplier, or other person or organization performing any part of the Work agrees that any action or suits at law or in equity arising out of or related to the bidding, award, or performance of the Work shall be maintained in the Superior Court of Los Angeles County, California, and expressly consent to the jurisdiction of said court, regardless of residence or domicile, andagree that said court shall be a proper venue for any such action.
11.11 Cumulative Remedies.
A. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and are not tobe construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Applicable Laws, byspecial warranty or guarantee, or by other provisions of the Contract Documents.
The provisions of this Article will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, andremedy to which they apply.
11.12 Survival of Obligations.
A. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuingobligations indicated in the Contract Documents, will survive final payment,completion, and acceptance of the Work or termination or completion of the Contract or termination of the services of Contractor.
11.13 Headings.
A. Article and paragraph headings are inserted for convenience only and do not constitute parts of these General Conditions.
11.14 Assignment of Antitrust Actions
A. In accordance with §7103.5(b) of the California Public Contract Code, Contractor and Subcontractors must conform to the following requirements:
1. In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, Contractor or Subcontractor offerand agree to assign to the awarding body all rights, title, and interest in and to allcauses of action it may have under §4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with §16700) of Part 2 ofDivision 7 of the Business and Professions Code) arising from purchases of goods, services, or materials pursuant to the public works contract or the subcontract.
2. This assignment must be made and become effective at the time the awarding body tenders to Contractor, without further acknowledgment by the parties.
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11.15 Other Legal Provisions.
A. Contractor shall give all notices and comply with all federal, state and local laws, ordinances, rules and regulations bearing on conduct of work as indicated andspecified by their terms. References to specific laws, rules or regulations in thisContract are for reference purposes only, and shall not limit or affect the applicability of provisions not specifically mentioned. If Contractor observes that drawings andspecifications are at variance therewith, he shall promptly notify City in writing andany necessary changes shall be adjusted as provided for in this Contract for changes in Work. If Contractor performs any Work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to City, he shall bear all costs arising therefrom.
B. Contractor shall be responsible for familiarity with the Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12101 et seq.). The Work will be performed in compliance with ADA laws, rules and regulations. Contractor shall comply with the Historic Building Code, including, but not limited to, as it relates to the ADA, whenever applicable.
C. Contractor acknowledges and understands that, pursuant to Public Contract Code section 20676, sellers of “mined material” must be on an approved list of sellerspublished pursuant to Public Resources Code section 2717(b) in order to supplymined material for this Contract.
D. No City official or representative who is authorized in such capacity and on behalf of City to negotiate, supervise, make, accept, or approve, or to take part in negotiating,supervising, making, accepting or approving any engineering, inspection,construction or material supply contract or any subcontract in connection withconstruction of the Work, shall be or become directly or indirectly interested financially in the Contract.
E. All provisions of law required to be inserted in the Contract or Contract Documents pursuant to any Applicable Laws shall be and are inserted herein. If through mistake, neglect, oversight, or otherwise, any such provision is not herein inserted or insertedin improper form, upon the application of either party, the Contract or Contract Documents shall be changed by City, at no increase in Contract Price or extension in Contract Times, so as to strictly comply with the Applicable Laws and withoutprejudice to the rights of either party hereunder.
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00 73 13— SPECIAL CONDITIONS
Pay ItemsItem #1 — Mobilization - Paid as specified in Section 2.11 of the General Conditions.
Item #2 — Site PreparationIClearing — Includes the existing utility investigation and potholing, traffic and site control, clearing and grubbing and disposal of construction waste. This item does not include the disposal of the fuel tanks or any soil that is determined to be hazardous that hasbeen in situ before the contractor’s arrival to the site.Item #3 — Excavation — Includes the demolition of the existing surface necessary to facilitate theremoval of the existing four underground fuel tanks. All existing infrastructure not scheduled forremoval shall be protected in place.
Item #4—Tank Removal - Includes the removal of the four existing underground fuel tanks andplacement on transport vehicles provided by the City. The fuel tanks remain the property of theCity and the City will facilitate disposal of them at the appropriate disposal facility. After the tanks are removed the City will test the adjacent soil to determine if any remediation is necessary. Ifsoil remediation is necessary, the City will facilitate the soil remediation and retesting until the site is determined to be acceptable to cover will the replacement surfacing. The contractor shallremain ready to place the replacement surfacing within seven days days notice is complete. The City shall have 30 calendar days to test and remediate the site without any delay charge for thebid item item #5. The investigation and potholing, traffic and site control, clearing and grubbing and disposal of construction waste. This item does not include the disposal of the fuel tanks orany soil that is determined to be hazardous that has been in situ before the contractor’s arrival tothe site.
Item #5 — Backfill — Includes the material, labor and equipment to backfill the excavated site tobottom of concrete surfacing grade with two sack concrete sand slurry. The item includes ofresetting of any grade rings removed from the excavation phase for infrastructure that is protectedin place.
Item #6 — Concrete Slab Replacement — Includes the material, labor and equipment to place the replacement concrete surfacing with 3500 psi concrete at 6-inch thickness with #4 epoxy coated reinforcing bar, backfill the excavated site to bottom of concrete surfacing grade with twosack concrete sand slurry. The item includes of resetting of any grade rings removed from the excavation phase for infrastructure that is protected in place.
END OF SPECIAL CONDITIONS
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TECHNICAL SPECIFICATIONS
None.
END OF TECHNICAL SPECIFICATIONS
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PLANS AND DRAWINGS
THE FOLLOWING PLANS AND DRAWINGS ARE INCORPORATED HEREIN BY REFERENCE AS IF SET FORTH IN THEIR ENTIRETY:
“Tank Replacement, Avalon Marina Dock Casino — Fuel Station, 2 Casino Way, Avalon, CA 90704 — Phase 3”
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CITY OF AVALON CITY COUNCIL
MEETING DATE: December 12, 2023 AGENDA ITEM: 1
ORIGINATING DEP: Administration CITY MANAGER:j
PREPARED BY: Devin Hart, Management Analyst
Robert Greenlaw. Director of Public Works
SUBJECT: Solicitation of Request for Qualified Bidders for Phase II of the Cabrillo Mole Ferry Terminal Rehabilitation Project
RECOMMENDED ACTION(S): Authorize the City Manager, or his designee, to solicit a request for qualifications to determined qualified bidders for a design-build contractor for Phase II of the Cabrillo Mole Ferry Terminal Rehabilitation Project.
REPORT SUMMARY: The Cabrillo Mole Ferry Terminal is a multimodal transportation hub used by cross-channel carrier passengers traveling between the City and the mainland! cruise ship disembarkmentlembarkment, and serves as the primary entry point to the City. In 2020, the City completed the first phase of its rehabilitation — reinforcing the existing concrete members, replacing the steel grates, and repairing the concrete deck and railing — for a total project costof $5.10 million.
The second phase of the project, budgeted at 520 million, will replace and reconfigure theexisting structures to improve passenger queuing and adjacent transportation circulation. In 2022, City Staff! working cooperatively with community stakeholders and the design firm Hart Howerton, developed a Design Intent document. This document has been shared in a number of town hall style public meetings and is available for review on the City’s website.City Staff has determined the best and most efficient way to move the project forward is through a design-build process. Using Hart Howerton’s Design Intent Document as a guide, City Staff are currently developing a Design-Build request for proposals (REP) for this project. Public Contract Code section 22164 establishes statutory measures that must be met in order for theCity to engage in a Design-Build type procurement process.
Specifically, the Public Contract Code requires the City to meet the following criteria:
- The project cost must be in excess of Si 000,000. ( 22162(a).) - Only projects for the construction of a building or buildings and improvements directly related to the construction of a building or buildings and park and recreational facilities may be procured using Design-Build under the law. ( 22i6i(g)(i).) - Before commencing the Design-Build procurement process, the City is required to develop and adopt a standard organizational conflict-of-interest policy. ( 22162(c).) After conferring with the City Attorney’s office, it has been determined that Phase II of the Cabrillo Mole Ferry Terminal Rehabilitation Project meets the statutory requirements for a Design-Build procurement. Per Public Contract Code section 22164 (b) a two-step REQ-RFP process must be used to ensure prospective Design-Build firms are first prequalified before they are able to submit a proposal through a formal RFP process.The Public Contracts Code outlines what must be included in a REQ including:
- Identify the basic scope and needs of the Design-Build project, the expected cost, the methodology the City will use to evaluate proposals, the procedure for selection of theDesign-Build entity and any other information the City deems necessary to inform interested firms of the opportunity.
- Identify factors the City intends to consider in evaluating whether a firm is qualified, including technical design and construction expertise, safety record and other non-price related factors.
- A template request for statement of qualifications that requires the prospective DesignBuild entities to submit the following information:
o The firm’s legal entity type (i.e., corporation, LLC, joint venture, etc...); o Evidence that the Design-Build team has completed or demonstrated the ability to complete projects that are similar in size, scope, or complexity to the City’s project; o Evidence that the proposed key personnel have sufficient experience and training to competently manage and complete the design and construction of the project; o A financial statement that ensures the Design-Build entity has the capacity to complete the project;
o Evidence of the licenses, registration and credentials required to design and construct the project including information on the revocation or suspension of any such licenses, registration and credentials;
o Evidence that the Design-Build entity has the capacity to obtain all required payment and performance bonds, liability insurance and errors and omissionsinsurance; o Information regarding workers’ compensation experience history and a worker safety program; a copy of the organizational documents or agreement forming the Design-Build entity; evidence of an acceptable safety record. o A certification form requiring the Design-Build entity, including its general partners or joint venture members, to certify the information it is providing in response to the REQ is certified under penalty of perjury.
o An agreement form whereby the Design-Build entity agrees to commit to the City that the entity, if selected, and its subcontractors at every tier will comply with applicable federal or state labor requirements.
The above list represents the minimum information the City must require prospective Design Build entities to submit in response to the REQ in order to be prequalified. The City may include additional criteria not listed above at its discretion.
City Staff are currently working cooperatively with the City Attorney’s Office to develop a RFQ.Simultaneously Staff are developing a comprehensive RFP.
City proposes the following timeline for the REQ and RFP, subject to modification in order to meet the needs of the City:
Tentative Deadline Task
December 4- 18, 2023
Begin solicitation of the REQ
December 20, 2023 — January 30, 2024 Develop and Finalize REP January 30, 2024 Deadline to submit qualifications -_____ February 6, 2024 -Pily Council determines qualified bidders February 6, 2024 jy Council authorizes solicitation of REP April 8, 2024 Begin solicitation of REP
June 7, 2024 Deadline to submit proposals
4yjy 1-16, 2024 Interview of Proposal Finalists
City Council authorizes City Manager to
July 17, 2024 jgotiate design-build contract
Staff recommends the City Council authorize the City Manager, or his designee, to solicit arequest for qualifications to determined appropriate bidders for a design-build contractor for Phase II of the Cabrillo Mole Ferry Terminal Rehabilitation Project.FISCAL IMPACTS: Undetermined.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: The City will not begin the process to determine qualified bidders for Phase II of the Cabrillo Mole Ferry Terminal Rehabilitation Project.FOLLOW UP ACTION: Develop and solicit a request for qualifications to determine qualified bidders.
ADVERTISING, NOTICE AND PUBLIC CONTACT: This item was properly iisted on the posted agenda pursuant to the Brown Act.
ATTACHMENTS: None.
December 19, 2023
Develop and Finalize REQ