CITY OF BISHOP
CITY COUNCIL MEETING AGENDA
City Council Chambers - 301 West Line Street - Bishop, California MONDAY, MARCH 23, 2026 - 6:00 PM
1. CALL TO ORDER - 6:00 p.m. Monday, March 23, 2026
NOTICE TO THE PUBLIC: Please be advised this meeting is accessible to the public in person, on the City of Bishop website, or on the local government cable channel 12. In compliance with the Americans with Disabilities Act of 1990, if you need special assistance to participate in this meeting, please contact the City Clerk at 760-873-5863 Extension 124. Notification at least 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].
The public is encouraged to participate or observe this meeting by:
1. Attending this meeting in person at the City of Bishop City Council Chambers located at 301 West Line Street in Bishop, California.
2. Observing this meeting live from the City of Bishop website at:
https://www.cityofbishop.com/government/city_council/index.php
3. Observe this meeting live from the local government cable channel 12.
Public comments may be made:
1. In person: Members of the public desiring to speak on a matter appearing on the agenda should ask the Mayor for the opportunity to be heard when the item comes up for Council consideration (or complete a speaker card prior to the meeting). Comments for all agenda items are limited to a speaking time of three minutes unless modified by the Mayor.
2. In writing: Go to http://bishop-ca.granicus.com/ViewPublisher.php?view_id=8 to submit an "eComment" for the corresponding meeting. Please note that eComment submissions closes at 3:00 p.m. on the day of the meeting. You may also hand deliver public comments to the City drop/payment box located at the Church Street entrance to City Hall on or before the deadline noted above. All written public comments received prior to the above noted time will be distributed to the Council for their review and consideration prior to the meeting. All written public comments received after that time will be provided to the Council at the earliest possibility. Please note written public comments received will not be read aloud at the meeting.
Any writing that is a public record that relates to an agenda item for open session distributed less than 72 hours prior to the meeting will be available for public inspection at City Hall, 377 West Line Street, Bishop, California during normal business hours.
Government Code 54957.5(b)(1). Copies will also be provided at the appropriate meeting.
1 2. MOMENT OF SILENCE
3. PLEDGE OF ALLEGIANCE - Mayor Pro Tem Dennis Freundt will lead the pledge of allegiance.
4. ROLL CALL
5. PUBLIC COMMENT
6. PRESENTATIONS
A. PRESENTATION – California Department of Transportation (CALTRANS) Projects Update – Presented by Caltrans District 9 Acting Chief PIO Monique TeSam
7. DEPARTMENT REPORTS
8. BISHOP AREA CHAMBER OF COMMERCE & INFORMATION CENTER UPDATE A. Bishop Area Chamber of Commerce and Information Center Update Report - March 23, 2026
9. CONSENT CALENDAR
A. February 2026 Budget Report
B. February 2026 Financial Reports
NOTICE TO THE PUBLIC: This time is set aside to receive public comment on matters not calendared on the agenda. When recognized by the Mayor, please state your name and address for the record and please limit your comments to three minutes. Under California law the City Council is prohibited from generally discussing or taking action on items not included in the agenda; however, the City Council will listen to all public comment but will not generally discuss the matter or take action on it.
Caltrans Presentation - Bishop Area Infrastructure Projects.pdf Updates on department activities will be given by the Department Heads and/or their staff.
A. Fire Department - Fire Chief Bret Russell
B. Police Department - Police Chief Nate Derr
C. Public Works Department - Public Works Director Nora Gamino D. Community Services Department - Community Services Manager Daniel McElroy E. Planning Department - Principal Planner Ana Budnyk
F. Administration - City Administrator Pam Foster
Prepared and presented by Bishop Area Chamber of Commerce and Information Center Executive Director Tawni Thomson.
BACCIC Report - March 23, 2026.pdf
NOTICE TO THE PUBLIC: All matters under the Consent Calendar are considered routine by the City and will be acted on by one motion.
Recommended Action: City Council to review and accept the February 2026 Budget Report.
February 2026 Budget Report
Recommended Action: City Council to review and accept the February 2026 Financial Reports.
2 C. Task Order Amendment 3 for the West Line Water Main Replacement Project
10. NEW BUSINESS
A. Introduction and First Reading of an Ordinance Amending Chapter 13 of the Bishop Municipal Code Relating to the Utility Assistance Program B. Award of Construction Contract, Approval of Interfund Loan, and Budget Adjustment for the West Line Street Water Main Project (Contract No. 26-PW01)
11. FUTURE AGENDA ITEMS
12. COUNCIL AND COMMITTEE REPORTS
13. ADJOURNMENT
February 2026 Bank Reconciliation Report
February 2026 Combined Cash Report
February 2026 Investment Portfolio Report
February 2026 Warrant Register Report
Recommended Action:
Council consideration to: (1) authorize the City Administrator to execute Amendment No. 3 to Task Order 23-TO-03 with Wood Rodgers for construction surveying and materials testing services for the West Line Street Water Main Replacement Project in the amount of $62,000, increasing the total not-to-exceed contract amount to $225,100; and (2) approve a budget adjustment in the amount of $62,000 to fund the additional services.
23-TO-03 Amendment 3
Recommended Action: Council consideration to approve the first reading and introduction of an ordinance amending Chapter 13 of the Bishop Municipal Code relating to the City's Utility Assistance Program by title only.
Ordinance Amending Sections 13.04.091 and 13.08.061 of the Bishop Municipal Code Relating to the Utility Assistance Program
Recommended Action: Council consideration to adopt a resolution approving an interfund loan from the General Fund to the Water Fund for the West Line Street Water Main Project, approve a budget adjustment to the Water Fund capital expense account, award a construction contract to DG Construction, Inc. (Contract No. 26- PW-01) in the amount of $2,313,710.00, authorize the City Administrator to execute the contract documents, and authorize an owner-controlled construction contingency of $115,685.00 for a total project authorization of $2,429,395.00.
Resolution Approving Interfund Loan from General Fund to Water Fund for the West Line Street Water Main Project
Interfund Loan Amortization Schedule
AGREEMENT FOR CONSTRUCTION SERVICES_West Line Water
Monday, April 13, 2026 at 6:00 p.m. Regular Meeting in the City Council Chambers 3 Bishop Area Infrastructure
Projects
Monique TeSam, Acting Chief
Public Information Officer
1 4
Bishop Pavement
Project
Improving safety, accessibility, and
mobility in our community
Multiple infrastructure projects are currently underway in Bishop, focusing on enhancing the safety, accessibility, and mobility for all residents. These initiatives include pavement rehabilitation, ADA upgrades, and pedestrian enhancements aimed at creating a more inclusive environment. Completion of several projects is anticipated by Summer 2026.
2 5
Project Elements:
Key Upgrades
Pavement and ADA compliance upgrades enhance road
safety. 3
• Construction of a multi -use path.
• Upgrade drainage and replacement of
sidewalk facilities.
• Relocation of traffic signal poles.
• Upgrade and construction of pedestrian
facilities.
• Reconstruction of culverts outside of
town.
6 Construction
Impacts and Lane
Closures
Lane Closures
Expect lane closures between Line Street and Willow Street(on the east side of the highway) and May Street beginning March 17th, weather dependent. 4 7
Meadow Farms
ADA Project
Upgrades
non-standard curb ramps, driveways, pedestrian push
buttons, pavement markings, traffic signals, and mast arms while constructing new pedestrian and bicycle facilities from North See Vee Lane to North Barlow Lane on both sides of U.S. 395 in Bishop.
5 8
The Selected Alternative for the Project Includes:
6 • Northbound side: Shoulder for advanced cyclists and shared-use sidewalk for pedestrians and cyclists; no on-street parking permitted. • Southbound side: Parallel parking lane and shared-use sidewalk for pedestrians and cyclists.
• Pedestrian bridge adjacent to Bishop Creek on both sides of the highway. 9 Pedestrian
Crossing
Improvements:
7 • U.S. 395 near antique shop - Curb ramp with
Pedestrian Hybrid Beacon
• Near Big 5 - Bus pullout installation
10 Manor Market
Complete Streets
Project
Project Elements:
The project will construct pedestrian facilities on the eastbound side of SR 168 from Manor Market to Pa Me
Lane and pedestrian facilities on the westbound side of SR 168. Drainage will be improved to account for the
new curb and gutter, and a rectangular rapid flashing
beacon (RRFB) will be installed near Pa Me Lane.
8 Schedule:
• March 2026-Design phase begins
• February 2029-Project advertised
• April 2029-Contract award
• May 2029-Construction begins
11 Wye Road
Roundabout
Quick -install Design
Enhances traffic flow and provides better truck access.
Pedestrian Crossings to be installed.
Schedule :
March 2026- Ready to List
Late Summer 2026- Construction
begins
9 12
10 Wye Road Connector Mill and Pavement
Scope:The project cold planes 0.15 feet of existing pavement between US 395 and US 6 and repave with 0.15 feet of HMA (Type A). Areas with deep thermal cracking will be cold planed to 0.50 feet and repaved with 0.50 feet HMA-A. Additional work includes restriping and new pavement markings.
• Roadway closure (24/7) with detour during construction. • Traffic handling coordinated with the Bishop Pavement Project. • No shoulder backing required; construction area signs placed on barricades.
• Night work is possible due to full roadway closure.
• Estimated construction duration: five working days.
13 11
Thank you!
Monique TeSam
PHONE
760-937-4654
14 Bishop Area Chamber of Commerce & Information Center Report to Bishop City Council for Monday March 23, 2026 Presented by: Tawni Thomson, Executive Director
Relocation Update: Contractor has promised work will be complete by April 1.
Recent Projects & Events:
• 3/5-3/8 - Pacific Coast Sportfishing Show in Costa Mesa was very well attended. • 3/7-3/8 - LA Travel & Adventure Show saw a bit lower attendance than last year, but there was lots of interest in visiting our region.
• 3/11-3/12 – Visit California Outlook Conference. 800+ travel industry professionals gathered for two full days of education and inspiration. • 3/21 – Blake Jones Trout Derby
• 3/21-3/22 - Bay Area Travel & Adventure Show
Upcoming Projects & Events:
• 4/9 – Networking mixer and open house at Blue Heron Farm • 4/11-4/12 - Denver Travel & Adventure Show
• 5/17-5/21: US Travel Association IPW Conference (Fort Lauderdale) Lunch & Learn: 3/25 Lunch and Learn has been postponed. New date will be announced soon.
Current Marketing Content:
• Spring activities, wildflowers and fishing
• Rest and relaxation
• Mule Days and other events
• Flights to Bishop
• Golden Mussel Prevention
Travel Industry Concerns:
• Continued decrease in international visitation
• High fuel prices
• Economic uncertainty
• Traveler safety
Lodging Metrics:
• February occupancy for Bishop hotels was 64% (4.23% higher than last year). • February ADR was $148 (6% higher than last year).
• March occupancy is similar to last year and ADR is slightly higher. 15 FEBRUARY 2026
BUDGET REPORT
1 16
TABLE OF CONTENTS
PAGES 3-4 GENERAL FUND REVENUE
PAGES 5-15 GENERAL FUND EXPENSES
PAGE 16 SEWER FUND REVENUE
PAGE 17 SEWER FUND EXPENSES
PAGE 18 GAS TAX FUND REVENUE
PAGE 19 GAS TAX FUND EXPENSES
PAGE 20 WATER FUND REVENUE
PAGE 21 WATER FUND EXPENSES
PAGE 22 MEASURE A FUND REVENUE
PAGE 23 MEASURE A FUND EXPENSES
PAGE 24 SUNRISE MHP REVENUE
PAGE 25 SUNRISE MHP EXPENSES
PAGE 26 STREETS & SIDEWALK IMP. REVENUE
PAGE 27 STREETS & SIDEWALK IMP. EXPENSES
PAGE 28 HEAVY EQUIPMENT REPLACEMENT FUND REVENUE
PAGE 29 PROPERTY/HOUSING DEVELOPMENT FUND REVENUE
PAGE 30 PROPERTY/HOUSING DEVELOPMENT FUND EXPENSES
PAGE 31 PLHA FUND REVENUE
PAGE 32 COPS FUND REVENUE
PAGE 33 COPS FUND EXPENSES
PAGE 34 E. LINE ST. BRIDGE REPLACEMENT FUND REVENUE
PAGE 35 E. LINE ST. BRIDGE REPLACEMENT FUND EXPENSES
PAGE 36 S. WARREN ST. IMPROVEMENT FUND REVENUE
PAGE 37 S. WARREN ST. IMPROVEMENT FUND EXPENSES
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1 53
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3 55
FEBRUARY 2026
COMBINED CASH REPORT
1 56
!!!""
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FEBRUARY 2026
INVESTMENT PORTFOLIO
REPORT
1 59
INVESTMENT ACCOUNTS
LAIF
STATEMENT PERIOD: FEBRUARY 2026
ENDING BALANCE: $924,395.77
AVERAGE MONTHLY YIELD: 3.871%
CALIFORNIA CLASS
STATEMENT PERIOD: FEBRUARY 2026
ENDING BALANCE: $22,884,173.86
AVERAGE MONTHLY YIELD: 3.743%
COMBINED CITY OF BISHOP INVESTMENTS
STATEMENT PERIOD: FEBRUARY 2026
ENDING BALANCE: $23,808,569.63
AVERAGE MONTHLY YIELD: 3.748%
2 60
3 61
4 62
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6 64
65 7
66 8
67 9
FEBRUARY 2026
WARRANT REGISTER REPORT
1 68
TO: CITY COUNCIL/CITY ADMINISTRATOR
FROM: FINANCE DIRECTOR
DATE: MARCH 16, 2026
SUBJECT: APPROVAL OF WARRANT REGISTER FOR THE MONTH OF
FEBRUARY 2026
COMMERCIAL WARRANTS
CHECK #15162, 15184-15306,
15308-15377 AMOUNT ISSUED: $683,484.18
MANUAL CHECKS & PAYROLL WARRANTS
AMOUNT ISSUED: $611,754.90
TOTAL AMOUNT ISSUED: $1,295,239.08
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6 73
Agenda Item: 9.C
Date of Meeting: March 23, 2026
Department: Public Works
To: City Council
From: Pam Foster
Subject: Task Order Amendment 3 for the West Line Water Main Replacement Project
Prepared On: March 19, 2026
Attachments: 23-TO-03 Amendment 3
STAFF REPORT
Background/History:
Task Order 23-TO-03 was issued to Wood Rodgers on October 23, 2023 for engineering design services for the West Line Street Water Main Replacement Project.
The project replaces an aging water main along West Line Street between Home Street and Main Street. The work is being coordinated with a future Caltrans pavement project to allow the City to replace the water main prior to roadway improvements and avoid excavation of newly paved roadway.
As the project moves into construction, additional professional services are required to support field layout and quality assurance testing during construction.
Analysis/Discussion:
Amendment #3 adds two construction support tasks to the existing task order: construction surveying and materials testing and inspection.
Construction surveying will be performed by Wood Rodgers’ subconsultant, Eastern Sierra Land Surveying (ESLS). These services include verifying survey control and staking the water main alignment and key construction points to ensure the contractor installs the pipeline in the correct location and elevation.
74 Materials testing and inspection services will be provided by Wood Rodgers’ subconsultant, Sierra Geotechnical Services (SGS). These services include field compaction testing for trench backfill and pavement restoration, concrete sampling and testing, and laboratory testing of construction materials such as aggregate base and asphalt. Testing results will be submitted to the City for review and documentation.
These services are standard for public works construction projects and provide independent verification that construction materials and installation meet project specifications and applicable standards.
The amendment provides the following budget for these tasks:
Construction Surveying: $15,500
Materials Testing & Inspection: $46,500
Total Amendment Amount: $62,000.
If approved, the amendment will increase the total not-to-exceed amount of Task Order 23-TO03 to $225,100.
Impacts to Council Goals and Strategic Planning Priorities:
This amendment supports Objective 3.3 of the City’s Strategic Plan.
Budget Impacts:
This item requires a budget adjustment to increase spending in Water Fund capital expense account 004-050-56027 in the amount of $62,000.
Legal Review:
City Attorney Pucci has reviewed this item and finds that the recommended action complies with the law.
Recommended Action:
Council consideration to: (1) authorize the City Administrator to execute Amendment No. 3 to Task Order 23-TO-03 with Wood Rodgers for construction surveying and materials testing services for the West Line Street Water Main Replacement Project in the amount of $62,000, increasing the total not-to-exceed contract amount to $225,100; and (2) approve a budget adjustment in the amount of $62,000 to fund the additional services.
Approved By: Pam Foster 3/19/2026
Approved By: Ethan Aukee 3/19/2025
75 Approved By:
Approved By:
76 CITY OF BISHOP
377 West Line Street - Bishop, California 93514
P. O. Box 1236 - Bishop, California 93515
City Hall 760-873-5863 Public Works 760-873-8458
Fax 760-873-4873
23-TO-03 Wood Rodgers
W. Line Water Main Replacement Design
AMENDMENT #3
1. This is the third amendment to task order 23-TO-03 for the West Line Water Main Replacement Design between Wood Rodgers and the City of Bishop executed on October 23, 2023.
2. Scope of Services:
Task 7 – Construction Surveying
Our subconsultant, ESLS will perform the following:
• Locating and verifying survey control
• Staking the water main line at 50’ O.C., critical points, and lateral locations on main line
Task 7 Assumptions:
• Traffic control will be provided by contractor or another party at the time of layout
• No layout of isolation valves will be surveyed along Line Street • Only one set of stakes will be needed for any layout item • A maximum of four trips to the site. If additional trips to the site are required to complete the layout, the contractor will be charged at a time and materials rate.
Task 8 – Material Testing & Inspection
Our subconsultant, SGS will perform the following:
• Provide field compaction testing for placed fill, trench backfill, aggregate base, and asphalt
• Provide concrete sampling, testing and observation during construction • Provide material sampling and testing for aggregate base, plantmix bituminous pavement
• Submit test results to the City following completion of applicable testing and review
Task 8 Assumptions:
• Compaction testing to be conducted at intervals of approximately one test per 100 linear feet of trench and at two foot vertical intervals, unless otherwise directed by the City or the project specifications
• Concrete testing shall include slump, entrained air content, ambient air temperature, concrete temperature, and compressive strength 77 23-TO-03 Wood Rodgers
W. Line Water Main Replacement Page 2 of 2
• Compressive strength testing for concrete shall be performed at 7 and 42 days
• Additional testing, re-testing due to failed results, attendance at meetings, extended site visits, standby time, overtime, or services necessitated by project delays or changes, shall be considered additional services
3. This amendment covers the scope of work mentioned above for surveying and material testing and inspection for the construction of the new water main. The budgeted amounts for each task are as follows:
Task # Task Description Cost
7 Construction Surveying $15,500
8 Materials Testing & Inspection $46,500
Total Cost $62,000
4. The not-to-exceed fee for the work covered by this amendment is $62,000 therefore the total not-to-exceed amount for the contract increases to $225,100.
5. All other terms and conditions of the Project remain unchanged.
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT to be executed the day and year of the last signature below.
CONTRACTOR’S NAME
________________________________
Mike Davidson, P.E., Principal Engineer
CITY OF BISHOP
________________________________
Nora Gamino, Public Works Director
______________
Date
______________
Date
3/4/2026
78 Agenda Item: 10.A
Date of Meeting: March 23, 2026
Department: Finance
To: City Council
From: Ethan Aukee
Subject: Introduction and First Reading of an Ordinance Amending Chapter 13 of the Bishop Municipal Code Relating to the Utility Assistance Program
Prepared On: March 11, 2026
Attachments: Ordinance Amending Sections 13.04.091 and 13.08.061 of the Bishop Municipal Code Relating to the Utility Assistance Program
STAFF REPORT
Background/History:
Title 13 of the Bishop Municipal Code establishes regulations governing the City’s water and sewer utilities. Sections 13.04.091 and 13.08.061 currently authorize a Low-Income Senior Citizen Rate Reduction Program, which provides a reduction in monthly water and sewer service charges for qualifying applicants.
Under the existing code provisions, eligibility is limited to households occupied by a person 65 years of age or older whose household income does not exceed the “very low income” threshold established by the U.S. Department of Housing and Urban Development for Inyo County. Qualifying applicants must receive a utility bill directly from the City and submit an application to the Finance Director on forms provided by the City.
Staff has reviewed the existing program and determined that limiting eligibility to seniors restricts the program’s ability to assist other residents experiencing financial hardship. The proposed ordinance amends the applicable sections of Title 13 to convert the existing program from a senior-specific utility rate reduction program to a general low-income utility assistance program.
The ordinance also removes the specific discount amount and structure from the Municipal Code and instead authorizes the City Council to establish program parameters by resolution, 79 allowing the Council to modify program details in the future without requiring additional amendments to the Municipal Code.
Introduction of the ordinance at this meeting constitutes the first reading. If introduced, the ordinance will return to the City Council at a subsequent meeting for second reading and adoption, at which time the amendments would take effect in accordance with applicable law.
Analysis/Discussion:
The proposed ordinance updates Sections 13.04.091 and 13.08.061 of the Bishop Municipal Code to modify the City’s existing utility rate reduction program. The current code provisions limit eligibility to low-income senior households and establish a fixed 25 percent reduction in monthly water and sewer service charges for qualifying applicants.
Staff is recommending two primary changes to the program. First, the ordinance removes the age-based eligibility requirement, allowing the program to be available to qualifying lowincome households regardless of age. This change is intended to ensure that assistance is available to residents experiencing financial hardship who may not qualify under the existing senior-only structure.
Second, the ordinance removes the specific discount percentage and program structure from the Municipal Code. Instead, the ordinance authorizes the City Council to establish the details of the utility assistance program by resolution. This approach provides greater administrative flexibility, allowing the Council to adjust program parameters—such as the level of assistance, eligibility verification requirements, or program limits—without requiring future amendments to the Municipal Code.
The proposed changes do not alter the City’s ability to administer the program through the Finance Department or require that applicants receive a utility bill directly from the City.
Program administration, application procedures, and verification of eligibility will continue to be managed by the Finance Director in accordance with adopted policies.
If introduced, the ordinance will return to the City Council at a subsequent meeting for second reading and adoption. Upon adoption, staff will return with a separate resolution establishing the program structure and discount level for the utility assistance program.
Impacts to Council Goals and Strategic Planning Priorities:
The proposed ordinance supports the City Council’s goals of maintaining reliable municipal services while promoting community well-being and responsible governance. Expanding the utility assistance program from a senior-specific benefit to a broader low-income program 80 improves access to essential utility services for qualifying residents experiencing financial hardship.
The amendment also supports sound administrative practices by allowing program details to be established by resolution rather than fixed in the Municipal Code. This approach provides the City Council with greater flexibility to adjust program parameters over time as community needs, utility costs, or policy priorities evolve, without requiring additional amendments to the Municipal Code.
Overall, the proposed changes help ensure the City’s utility assistance program remains responsive, equitable, and administratively efficient while supporting the Council’s broader priorities related to community support and effective municipal service delivery.
Budget Impacts:
The proposed ordinance itself does not have a direct budget impact. The ordinance establishes the framework for the utility assistance program and authorizes the City Council to set program parameters by resolution.
Any financial impact associated with the program will depend on the assistance structure and eligibility criteria established by the City Council through a future resolution. Program costs would be reflected as reduced utility service charge revenues within the applicable utility funds. Staff will administer the program within existing operational resources.
Legal Review:
The City Attorney has reviewed this item and finds that the recommended action complies with the law.
Recommended Action:
Council consideration to approve the first reading and introduction of an ordinance amending Chapter 13 of the Bishop Municipal Code relating to the City's Utility Assistance Program by title only.
Approved By: Ethan Aukee 3/11/2026
Approved By: Robin Picken 3/11/2026
Approved By: Pam Foster 3/16/2026
Approved By:
81 City of Bishop Ordinance No. ___
ORDINANCE NO. ___
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BISHOP, STATE OF CALIFORNIA, AMENDING TITLE 13 OF THE CITY OF BISHOP CODE OF
ORDINANCES, RELATING TO WATER AND SEWER SERVICE
WHEREAS, the City of Bishop is responsible for providing for the health, safety and welfare of its residents and their water supply; and
WHEREAS, under Cal. Const. art. XI, §7, cities may make and enforce within their limits all local, police, sanitary and other ordinances not in conflict with general laws; and WHEREAS, certain water and sewer provisions of Title 13 of the City of Bishop Code of Ordinances need updating to provide for orderly, efficient, and cost-effective administration of government; and
WHEREAS, the City of Bishop, California, pursuant to the provisions of the California Environmental Quality Act (“CEQA”) (Cal. Pub. Res. Code §§21000 and following) and State CEQA Guidelines (14 CCR §§15000 and following) has determined that this ordinance is not a project under CEQA pursuant to Title 14, Section 15378 (b)(5) of the California Code of Regulations.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BISHOP DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The above recitals are true and incorporated into this ordinance.
SECTION 2. The indicated sections of Title 13 of the City of Bishop Code of Ordinances are hereby amended as follows:
Chapter 13.04. of the City of Bishop Code of Ordinances is hereby amended to read as follows:
13.04.091. - Low-income rate reductions.
A. Any qualifying applicant who uses water services at the applicant’s personal residence may apply for a reduction in the monthly water service charge respecting use at that residence only. Applications for reduced rates shall be on forms supplied by the city. All information required to be given on such forms shall be supplied by the applicant under penalty of perjury.
B. Reduced rates shall be granted to qualifying applicants who receive a bill for service directly from the city and file their applications with the finance director. 82 City of Bishop Ordinance No. ___
C. For the purposes of this section, a “qualifying applicant” means a utility customer who meets the eligibility requirements for the city’s utility assistance program as established by resolution of the city council.
D. The finance director may adopt such rules and regulations, not inconsistent herewith, which the director deems necessary to properly carry out the provisions of this section.
Chapter 13.08. of the City of Bishop Code of Ordinances is hereby amended to read as follows:
13.08.061. - Low-income rate reductions.
A. Any qualifying applicant who receives sewer services at the applicant’s personal residence may apply for a reduction in the monthly unit sewer service charge respecting use at the residence only. Applications for reduced rates shall be on forms supplied by the city. All information required to be given on such forms shall be supplied by the applicant under penalty of perjury.
B. Reduced rates shall be granted to qualifying applicants who receive a bill for service directly from the city and file their application with the finance director.
C. For the purposes of this section, a “qualifying applicant” means a utility customer who meets the eligibility requirements for the city’s utility assistance program as established by resolution of the city council.
D. The finance director may adopt such rules and regulations, not inconsistent herewith, which the director deems necessary to properly carry out the provisions of this section.
SECTION 3. ENVIRONMENTAL DETERMINATION. The project has been reviewed for compliance with the California Environmental Quality Act (CEQA), the CEQA Guidelines, and the City’s environmental procedures, and has been found to be not a project under Section 15378 (b)(5) of the CEQA Guidelines.
SECTION 4. INCONSISTENCIES. Any provision of the Bishop Code of Ordinances or appendices thereto inconsistent with the provisions of this ordinance, to the extent of such inconsistencies and/or further, is hereby repealed or modified to the extent necessary to affect the provisions of this ordinance.
SECTION 5. SEVERABILITY. If any provision or clause of this ordinance or the application thereof to any person or circumstances is held to be unconstitutional or otherwise invalid by any court of competent jurisdiction, such invalidity shall not affect other provisions or clauses or applications of this ordinance which can be implemented 83 City of Bishop Ordinance No. ___
without the invalid provision, clause or application; and to this end, the provisions of this ordinance are declared to be severable.
SECTION 6. EFFECTIVE DATE. This ordinance shall be in full force and effect July 1, 2026, and a summary hereof shall be published once within fifteen (15) days in The Inyo Register, a newspaper of general circulation printed and published in the County of Inyo and circulated in the City of Bishop and hereby designated for that purpose by the City Council.
SECTION 7. The City Clerk shall certify to the passage and adoption of this ordinance and shall cause the same to be published in the manner and form provided by law in The Inyo Register, a newspaper of general circulation printed and published in the City of Bishop, State of California, which said newspaper is hereby designated for that purpose.
PASSED, APPROVED AND ADOPTED this __ day of _____, 2026.
____________________________
Stephen Muchovej, Mayor
ATTEST: __________________________
Robin Picken, City Clerk
84 Agenda Item: 10.B
Date of Meeting: March 23, 2026
Department: Public Works
To: City Council
From: Ethan Aukee
Subject: Award of Construction Contract, Approval of Interfund Loan, and Budget Adjustment for the West Line Street Water Main Project (Contract No. 26-PW-01)
Prepared On: March 17, 2026
Attachments: Resolution Approving Interfund Loan from General Fund to Water Fund for the West Line Street Water Main Project
Interfund Loan Amortization Schedule
AGREEMENT FOR CONSTRUCTION SERVICES_West Line Water
STAFF REPORT
Background/History:
The West Line Street Water Main Project will replace aging water infrastructure and improve the reliability of the City’s water distribution system. The project includes replacement of the existing steel water main along West Line Street (State Route 168) between Home Street and Main Street (US 395), which has reached the end of its service life. The project also includes installation of new isolation valves between Well 4 and Northern Inyo Hospital, allowing sections of the system to be isolated for maintenance or emergency repairs while maintaining continuous service to the hospital—an operational capability that does not currently exist.
In addition, the project includes installation of new water meters along the corridor as part of a pilot program to evaluate meter brands and software platforms prior to a potential citywide meter replacement. This pilot will allow staff to assess performance, reliability, and data management capabilities before broader implementation.
The project is being constructed at this time to replace and protect water infrastructure located beneath State Route 168 in advance of Caltrans’ planned roadway repaving later this year, avoiding future disturbance of new pavement and allowing coordination with the State’s project.
85 To fund the project, staff recommends use of an interfund loan from the General Fund to the Water Fund. This approach allows the City to advance the project without external debt issuance while maintaining project timing. The loan will be repaid by the Water Fund over time based on a structured repayment schedule supported by water system revenues.
Analysis/Discussion:
The project plans were approved on February 9, 2026, and the project was advertised for bids on February 10, 2026. Addendum No. 1 was issued on March 5, 2026 to respond to bidder questions and clarify portions of the bid documents. Sealed bids were received until 2:00 PM on March 12, 2026, at which time they were publicly opened and read aloud.
The City received four bids for the project, as summarized below:
Contractor Name Location Bid Amount
R. Sutton
Enterprises
Vallecito, CA $1,846,315.00
DG Construction,
Inc.
Clovis, CA $2,313,710.00
Q&E Pipeline
Company
Pomona, CA $2,528,830.00
White Rock
Construction
Gardnerville, NV $3,489,170.00
The apparent low bid submitted by R. Sutton Enterprises was reviewed and determined to be non-responsive. The bid submitted by DG Construction, Inc. was reviewed for completeness and compliance, including the bid proposal, bid security, subcontractor listing, and required certifications, and was found to be complete, mathematically correct, and responsive to the contract documents. Based on this review, DG Construction, Inc. is the lowest responsive and responsible bidder with a total bid of $2,313,710.00. The Engineer’s estimate for the project was approximately $2,000,000.00, and the recommended bid exceeds the estimate by $313,710.00.
The bid documents specify award to the lowest responsive and responsible bidder, and no local contracting preference was applied to this project. Required approvals include an encroachment permit from the California Department of Transportation (Caltrans) for work within State Route 168 right-of-way, as well as approval from the State Division of Drinking Water for a Waterworks Separation Standards Waiver, which has been obtained.
Impacts to Council Goals and Strategic Planning Priorities:
This project is included in Objective 3.3 of the City's Strategic Plan.
Budget Impacts:
86 The Water Fund budget currently includes $1,000,000.00 for the project within capital expense account 004-050-56027. The FY 2025-26 budget and the City’s Strategic Plan contemplated split project funding between existing cash reserves and debt, with approximately $1,500,000.00 to be financed. This amount was intentionally excluded from the adopted budget to allow for separate Council approval of financing and a corresponding budget adjustment.
To fully fund the project, a budget adjustment is required to increase capital expense account 004-050-56027 by $1,429,395.00, representing the proposed interfund loan. This results in a total project appropriation of $2,429,395.00, consistent with the not-to-exceed project authorization and inclusive of $1,000,000.00 in existing Water Fund cash and $1,429,395.00 in interfund financing.
The interfund loan itself is a balance sheet transaction and does not require a budget adjustment. Principal repayments will not impact the operating budget. Interest expense in the Water Fund and interest revenue in the General Fund will be budgeted in future fiscal years in accordance with the approved amortization schedule.
Legal Review:
City Attorney Pucci has reviewed this item and finds that the recommended action complies with the law.
Recommended Action:
Council consideration to adopt a resolution approving an interfund loan from the General Fund to the Water Fund for the West Line Street Water Main Project, approve a budget adjustment to the Water Fund capital expense account, award a construction contract to DG Construction, Inc. (Contract No. 26-PW-01) in the amount of $2,313,710.00, authorize the City Administrator to execute the contract documents, and authorize an owner-controlled construction contingency of $115,685.00 for a total project authorization of $2,429,395.00.
Approved By: Ethan Aukee 3/18/2026
Approved By: Pam Foster 3/19/2026
Approved By:
Approved By:
87 City of Bishop Resolution No. 2026-___ Page 1
RESOLUTION NO. 2026-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BISHOP,
STATE OF CALIFORNIA, APPROVING AN INTERFUND LOAN FROM
THE GENERAL FUND TO THE WATER FUND FOR THE WEST LINE
STREET WATER MAIN PROJECT
WHEREAS, the City of Bishop maintains and operates a municipal water utility through its Water Fund; and
WHEREAS, the City has identified the need to replace aging water infrastructure along West Line Street to maintain safe and reliable water service, protect public health, and ensure regulatory compliance; and
WHEREAS, the City Council is considering award of a construction contract for the West Line Street Water Main Project with a total project authorization of $2,429,395.00; and WHEREAS, the Water Fund will contribute $1,000,000.00 in available cash reserves toward the project cost; and
WHEREAS, the remaining project cost of $1,429,395.00 is proposed to be financed through an interfund loan from the City’s General Fund to the Water Fund; and WHEREAS, the City Council finds that internal financing is appropriate due to project timing considerations, the availability of sufficient General Fund resources, and the ability to minimize overall borrowing costs while retaining interest earnings within the City; and WHEREAS, repayment of the loan will be made from Water Fund revenues consistent with cost-of-service principles applicable to municipal water utilities.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Bishop as follows:
Section 1. Approval of Interfund Loan
The City Council hereby approves an interfund loan from the General Fund to the Water Fund in an amount not to exceed $1,429,395.00 to finance a portion of the West Line Street Water Main Project.
Section 2. Loan Terms
The loan shall be made under the following terms:
a. Principal Amount: Not to exceed $1,429,395.00.
b. Interest Rate: 3.375% per annum on the outstanding principal balance. 88 City of Bishop Resolution No. 2026-___ Page 2
c. Term: Five (5) years from the date of disbursement.
d. Repayment: Equal annual payments of principal and interest over the term of the loan, with the first payment due one year after disbursement, as shown in the amortization schedule attached to the staff report.
e. Payment Source: Net operating revenues of the Water Fund, including water service charges and other legally available enterprise revenues. f. Disbursement: Loan proceeds shall be advanced by the Finance Director in a single lump sum to fund project construction expenditures.
g. Prepayment: The Water Fund may prepay all or any portion of the outstanding principal at any time without penalty, together with accrued interest to the date of prepayment.
Section 3. Findings
The City Council finds that:
1. The loan serves a valid public purpose by financing essential municipal water infrastructure.
2. Sufficient unrestricted General Fund resources are available to provide the loan without impairing the City’s financial stability.
3. The proposed repayment structure is consistent with the Water Fund’s revenue sources and cost-of-service requirements.
Section 4. Administrative Authority
The City Administrator, Finance Director, and Public Works Director are hereby authorized to take all actions necessary to implement the interfund loan consistent with this resolution.
Section 5. Effective Date
This resolution shall take effect immediately upon adoption.
PASSED, APPROVED AND ADOPTED this ____ day of _______________ 2026. _____________________________________
Stephen Muchovej, Mayor
ATTEST: ____________________
Robin Picken, City Clerk
89 CITY OF BISHOP
377 West Line Street – Bishop, CA 93514
PO Box 1236 – Bishop, CA 93514
City Hall 760-873-5863
Year Beginning Balance Payment Interest Principal Ending Balance 1 1,429,395.00$ $315,464.46 48,242.08$ $267,222.38 1,162,172.62$ 2 1,162,172.62$ $315,464.46 39,223.33$ $276,241.14 885,931.48$ 3 885,931.48$ $315,464.46 29,900.19$ $285,564.27 600,367.21$ 4 600,367.21$ $315,464.46 20,262.39$ $295,202.07 305,165.14$ 5 305,165.14$ $315,464.46 10,299.32$ $305,165.14 -$
$1,577,322.31 $147,927.31 $1,429,395.00
FINANCE DEPARTMENT
AMORTIZATION SCHEDULE
General Fund to Water Fund Interfund Loan
for West Line Street Water Main Project
Loan Principal: $1,429,395.00
Interest Rate: 3.375% (Simple, Annual)
Term: Five (5) Years
Payments: Equal Annual Payments
First Payment: One (1) Year After Disbursement
Annual Payment Amount: $315,464.46
Amortization Schedule
90 Contract Number Page 1 of 28
Project Name
AGREEMENT FOR CONSTRUCTION SERVICES
BETWEEN CITY OF BISHOP AND
DG Construction Inc.
FOR
26-PW-01
WEST LINE STREET WATER MAIN
THIS AGREEMENT FOR CONSTRUCTION SERVICES (“Agreement”) is made and entered into on March 23, 2026 (“Effective Date”), by and between the City of Bishop, a California municipal corporation and DG Construction, Inc., a corporation (“Contractor”). City and Contractor may be referred to, sometimes individually or collectively, as “Party” or “Parties.” Contractor’s State License Number is 1092909 and DIR Registration Number is 1000948450.
RECITALS
A. City desires to retain Contractor for performance of a public works project for CONTRACT NUMBER 26-PW-01 / West Line Street Water Main Replacement Project (the “Project”).
B. The City has chosen Contractor for performance of the Project pursuant to legal processes as applicable to the Project scope, by either (i) a formal bidding process with a “Notice Inviting Bids” or (ii) those processes set forth in the Uniform Public Construction Cost Accounting Act (Public Contract Code Section 22000, et seq.) as such Act has been incorporated into the City of Bishop Municipal Code.
C. Through the application of such Project award procedures, the City has chosen Contractor as a result of either, as applicable, (i) Contractor’s accepted bid following a formal Notice Inviting Bids (“Contractor Bid”), or (ii) as otherwise accepted and processed through those procedures and approvals authorized under the City of Bishop Municipal Code for Contractor’s proposal to perform Project work (“Contractor Proposal”). Contractor’s Proposal/Bid (as applicable) is attached hereto as Exhibit A.
D. City desires to retain Contractor, on an independent contractor basis, for the Project, as more particularly described below.
E. Contractor represents that it is fully qualified to perform such services by virtue of its experience and the training, education and expertise of its principals and employees.
F. Pursuant to the City of Bishop Municipal Code and California state law, City has authority to enter into and execute this Agreement.
G. The Parties desire to formalize the selection of Contractor for performance of the services and desire that the terms of that performance be as particularly defined and described herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
91 Contract Number Page 2 of 28
Project Name
AGREEMENT
ARTICLE 1. CONTRACT SERVICES
1.1 Scope of Work
The Contractor shall perform all of the work, furnish all labor, materials, equipment, tools, utility services, and transportation, and comply with all of the specifications and requirements (collectively referred to herein as the “services” or “work” hereunder) in the Contract Documents for [West Line Street Water Main Replacement Project] (the “Project”). All such work shall be performed in a good and workmanlike manner, as reasonably determined by the City, and shall be performed in compliance with all local, state, and federal laws and regulations. By entering into this Agreement, Contractor acknowledges that there may be other contractors on the site whose work will be coordinated with that of its own. Contractor expressly agrees that it will cooperate with other contractors and will do nothing to delay, hinder, or interfere with the work of other separate contractors, the City, the Project Manager, architects, inspectors, engineers, or utilities. As used herein, “Contract Documents” refers to all of the following documents, all of which are component parts of this Agreement as if herein set out in full or attached hereto. ONLY THOSE DOCUMENTS CHECKED WITH AN “X” TO APPLY:
☒ Notice of Inviting Bids, Bid Forms & Instructions to Bidders ☒ Scope of Work, if any
☒ Contractor’s Proposal
☒ Plans for the Project, if any
☒ Project Construction Schedule
☒ General Specifications and Provisions, if any
☒ Special Provisions for the Project, if any
☒ Standard Specifications
☒ Technical Specifications
☒ Addendum(s) as issued
☒ Contractor’s Signed Bid Proposal and Information Required of Bidder ☒ Designated Subcontractors List, if any
☒ Performance Bond, Labor & Materials Payment Bond, and any other Bonds as required by this Agreement
☒ Insurance Certificates and Written Endorsements
☒ Notice to Proceed (issued by the City)
☒ Notice of Completion (issued by the City at final completion of the project) ☒ Guaranty Form
☒ All certifications, affidavits, and forms required by applicable state or federal law, including but not limited to Public Contract Code certifications, DBE forms, and federal funding requirements, if applicable.
☒ All Changes Orders properly authorized after execution of Agreement.
The Contract Documents are incorporated into this Agreement and made part hereof. In the event of any conflict between the terms of the Contract Documents and this Agreement, the terms of this Agreement shall govern.
92 Contract Number Page 3 of 28
Project Name
1.2 Incorporation of Standards
The provisions of the most current edition of the California Department of Transportation Standard Specifications and Standard Plans, as amended by official Caltrans revisions (“Caltrans Standards”), are incorporated herein by reference and shall serve as the Standard Specifications for the Work, except as expressly modified by this Agreement, the Project Plans, the City of Bishop Standard Specifications and Details, or the Special Provisions.
In the event of any conflict, the order of precedence shall be:
(1) this Agreement;
(2) the Special Provisions;
(3) the Project Plans;
(4) the City of Bishop Standard Specifications and Details; and (5) the Caltrans Standards.
1.3 Compliance with Labor and Wage Laws
(a) Public Work. The Parties acknowledge that the work to be performed under this Agreement is a public work as defined in Labor Code section 1720 and that this Agreement is therefore subject to the requirements of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code relating to public works contracts and the rules and regulations established by the Department of Industrial Relations (“DIR”) implementing such statutes. The work performed under this Agreement is subject to compliance monitoring and enforcement by the DIR. Contractor shall post job site notices, as prescribed by DIR regulations.
(b) Registration with DIR. Pursuant to Labor Code section 1771.1, Contractor and all subcontractors must be registered with, and pay an annual fee to, the DIR prior to and during the performance of any work under this Agreement.
(c) Prevailing Wages. Contractor shall pay prevailing wages to the extent required by Labor Code section 1771. Pursuant to Labor Code section 1773.2, copies of the prevailing rate of per diem wages are on file at City Hall and on the DIR website at http://www.dir.ca.gov/OPRL/DPreWageDetermination.htm and will be made available to any interested party on request. By initiating any work under this Agreement, Contractor acknowledges receipt of a copy of the DIR determination of the prevailing rate of per diem wages, and Contractor shall post a copy of the same at each job site where work is performed under this Agreement. If this Agreement is subject to the payment of federal prevailing wages under the Davis-Bacon Act (40 U.S.C. § 3141 et seq.), then Contractor shall pay the higher of either the state or federal prevailing wage applicable to each laborer. (d) Penalty for Failure to Pay Prevailing Wages. Contractor shall comply with and be bound by the provisions of Labor Code sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Contractor shall, as a penalty to the City, forfeit the sum of $200 (or, the maximum amount as provided for by State law, if that maximum amount is more than $200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Contractor or by any subcontractor. (e) Payroll Records. Contractor shall comply with and be bound by the provisions of Labor Code section 1776, which requires Contractor and each subcontractor to: keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Labor Code section 1776; certify and make such payroll records available for inspection as provided by Labor Code section 1776; and inform the City of the location of the records. Contractor shall submit all required reporting and records directly to the DIR.
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(f) Apprentices. Contractor shall comply with and be bound by the provisions of Labor Code sections 1777.5, 1777.6, and 1777.7 and California Code of Regulations Title 8, section 200 et seq. concerning the employment of apprentices on public works projects. Contractor shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations. Prior to commencing work under this Agreement, Contractor shall provide City with a copy of the information submitted to any applicable apprenticeship program. Within sixty (60) days after concluding work pursuant to this Agreement, Contractor and each of its subcontractors shall submit to the City a verified statement of the journeyman and apprentice hours performed under this Agreement.
(g) Eight-Hour Work Day. Contractor acknowledges that eight (8) hours labor constitutes a legal day’s work. Contractor shall comply with and be bound by Labor Code section 1810. (h) Penalties for Excess Hours. Contractor shall comply with and be bound by the provisions of Labor Code section 1813 concerning penalties for workers who work excess hours. The Contractor shall, as a penalty to the City, forfeit twenty-five dollars ($25) for each worker employed in the performance of this Agreement by the Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code section 1815, work performed by employees of Contractor in excess of eight (8) hours per day, and forty (40) hours during any one week, shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than one and one-half (1½) times the basic rate of pay.
(i) Workers’ Compensation. California Labor Code sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees if it has employees.
In accordance with the provisions of California Labor Code section 1861 and Section 5.1 and 5.2 of this Agreement, Contractor certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake selfinsurance 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.” (j) Contractor’s Responsibility for Subcontractors. For every subcontractor who will perform work under this Agreement, Contractor shall be responsible for such subcontractor’s compliance with Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code, and shall make such compliance a requirement in any contract with any subcontractor for work under this Agreement.
Contractor shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor’s compliance, including without limitation, conducting a review of the certified payroll records of the subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages. Contractor shall diligently take corrective action to halt or rectify any such failure by any subcontractor.
1.4 Compliance with Law
All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules and regulations of City and any federal, state or local governmental agency having jurisdiction in effect at the time services are rendered. City, and its elected and appointed officers, employees, agents, designated volunteers, attorneys, successors and assigns shall not be liable at law or in equity for failure of Contractor to comply with this Section.
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1.5 Licenses, Permits, Fees and Assessments
Contractor has California State Contractor’s License Board License Classification [A], No. [1092909.] and shall maintain said license and obtain and maintain, at its sole cost and expense, such licenses, permits, registrations, and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor’s performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.
1.6 Familiarity with Work
By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the Scope of Work to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder.
1.7 Discovery of Unknown Conditions
(a) Pursuant to Public Contract Code section 7104, Contractor shall promptly, and before the following conditions are disturbed, notify the City, in writing, of any: (i) material Contractor believes may be hazardous waste as defined in Section 25117 of the Health & Safety Code required to be removed to a Class I, II, or III disposal site in accordance with existing law; (ii) subsurface or latent physical conditions at the Project site differing from those indicated by site information available prior to the submission of Contractor’s Proposal or Bid; or (iii) 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 this Agreement.
(b) City shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in Contractor’s cost of, or the time required for, performance of any part of the work, shall issue a change order in accordance with this Agreement.
(c) In the event that a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor’s cost of, or time required for, performance of any part of the work, Contractor shall not be excused from any scheduled completion date provided for by the Agreement, but shall proceed with all work to be performed under the Agreement. Contractor shall retain any and all rights provided either by contract or by law, which pertain to the resolution of disputes and protests between the contracting Parties.
1.8 Unidentified Utilities
To the extent required by Government Code section 4215, City will compensate Contractor for the cost of locating, repairing damage not due to the failure of Contractor to exercise reasonable care, and removing or relocating utility facilities not identified by City in the Contract Documents with reasonable accuracy, and for equipment on the project necessarily idled during such work. Nothing herein shall be deemed to require City to indicate the presence of existing service laterals or appurtenances whenever the presence of such utilities on the project site can be inferred from the presence of other visible facilities, such as buildings, meters, and junction boxes, on or adjacent to the site of the construction; provided, however, nothing herein shall relieve City from identifying main or trunklines in the plans and specifications. If 95 Contract Number Page 6 of 28
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Contractor, while performing the work, discovers utility facilities not identified by City in the plans or specifications, Contractor shall immediately notify City and the utility in writing. This Agreement is subject to Government Code sections 4216 through 4216.9. Contractor must notify utilities and obtain an identification number before excavation or be subject to liability for damages to subsurface installations. Pursuant to Government Code Sections 4216 through 4216.9, the methods used and costs involved to locate existing elements, points of connection and all construction methods are Contractor’s sole responsibility. Accuracy of information furnished, as to existing conditions, is not guaranteed. Contractor, at its sole expense, must make all investigations necessary to determine locations of existing elements, which may include, without limitation, contacting U.S.A. alert and other private underground locating firm(s), and/or utilizing potholes, specialized locating equipment and/or hand trenching.
1.9 Trench Excavation
Pursuant to Labor Code section 6705, if this Agreement is for more than $25,000 and requires the excavation of any trench or trenches five feet or more in depth, Contractor shall submit, in advance of such excavation, a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches. The plan shall be reviewed and accepted by the City, or a registered civil or structural engineer employed by the City to whom authority has been delegated, prior to the excavation. If the plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer. This section shall not be deemed to allow the use of a shoring, sloping, or protective system less effective than that required by the Construction Safety Orders. This subsection shall not be construed to impose tort liability on the City or any of its employees. Full compensation for sheeting, shoring, bracing, sloping, and all other provisions required for worker protection shall be considered as included in the Compensation Sum (defined below), and no additional compensation will be allowed therefor.
1.10 CARB Compliance
For a project involving the use of in-use off-road diesel-fueled vehicles, as defined by 13 CCR 2449, Contractor shall obtain copies of the valid Certificates of Reported Compliance, as described in 13 CCR 2449(n), for the fleet performing services pursuant to this contract and all listed subcontractors, if applicable, prior to commencing any work pursuant to this Contract or any renewed contract with that fleet. Contractor shall indemnify, defend and hold harmless the City, its officers, agents, employees and directors from any liability imposed arising from Contractor’s violation of any regulation set forth in 13 CCR 2449.
1.11 Protection and Care of Work and Materials
The Contractor shall adopt reasonable methods, including providing and maintaining storage facilities, during the life of the Agreement, to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as caused by City’s own negligence. Stored materials shall be reasonably accessible for inspection. Contractor shall not, without City’s consent, assign, sell, mortgage, hypothecate, or remove equipment or materials which have been installed or delivered and which may be necessary for the completion of the work.
1.12 Warranty
Contractor warrants all work under the Agreement (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and 96 Contract Number Page 7 of 28
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workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Agreement or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) calendar days after being notified in writing by the City of any defect in the work or non conformance of the work to the Agreement, commence and prosecute with due diligence all work necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act as soon as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair, remove and/or replace any portions of the work (or work of other contractors or subcontractors) damaged by its defective work or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Agreement. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Agreement, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non conforming work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.
1.13 Additional Work and Change Orders
(a) City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Work or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless an authorized written change order is first given by the City to the Contractor, incorporating therein any adjustment in (i) the Compensation Sum, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor (“Change Order”). All Change Orders must be signed by the Contractor and City’s authorized representative, prior to commencing the extra work thereunder.
(b) Any increase in the Compensation Sum of up-to the amount of either (i) a contingency approved by the City Council at the time the Project was awarded to Contractor, such amount not to exceed twenty-five percent (25%) of the Compensation Sum, or (ii) twenty percent (20%) of the Compensation Sum, whichever is greater, and such amounts taken either separately or in the aggregate; or any increase in the time to perform of up-to one hundred eighty (180) days and which are not detrimental to the work or to the interest of the City, may be approved by the City Administrator or his/her designee. Any greater increases, taken either separately or in the aggregate, must be approved by the City Council in an written amendment to this Agreement.
(c) Any adjustment in the Compensation Sum for a Change Order meeting the thresholds in Section 1.13(b) must be in accordance with the rates set forth in the Contractor’s Proposal/Bid. If the rates in the Contractor’s Proposal/Bid do not cover the type of work in the Change Order, the cost of such work shall not exceed an amount agreed upon in writing and signed by Contractor and City’s Director of Public 97 Contract Number Page 8 of 28
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Works or City Engineer, or either of their designees. If the cost of the Change Order cannot be agreed upon, the City will pay for actual work of the Change Order completed, to the satisfaction of the City, as follows:
(i) Labor: The cost of labor shall be the actual cost for wages of workers and subcontractors performing the work for the Change Order at the time such work is done. The use of labor classifications that would increase the cost of such work shall not be permitted. (ii) Materials and Equipment: The cost of materials and equipment shall be at cost to Contractor or lowest current price which such materials and equipment are reasonably available at the time the work is done, whichever is lower.
(iii) Change Order Daily Reports. If the cost of the extra work cannot be agreed upon, the Contractor must provide a daily report that includes invoices for labor, materials and equipment costs for the work under the Change Order. The daily report must include: list of names of workers, classifications, and hours worked; description and list of quantities of materials used; type of equipment, size, identification number, and hours of operation, including loading and transportation, if applicable; description of other City authorized services and expenditures in such detail as the City may require. Failure to submit a daily report by the close of the next working day may, at the City’s sole and absolute discretion, waive the Contractor’s rights for that day.
(d) It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Work. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Work may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other contractors. (e) No claim for an increase in the Compensation Sum or time for performance shall be valid unless the procedures established in this Section are followed.
1.14 Special Requirements
Additional terms and conditions of this Agreement or changes to the standard terms of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements,” attached hereto as Exhibit B and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit B and any other provisions of this Agreement or Contract Documents, the provisions of Exhibit B shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT
2.1 Compensation Sum
Subject to any limitations set forth in this Agreement, City agrees to pay Contractor the amount of two million three hundred thirteen thousand seven hundred ten dollars( $2,313,710) as set forth in Contractor’s Proposal/Bid attached hereto as Exhibit A and incorporated herein by this reference (“Compensation Sum”). Subject to any additions or deductions that may be made by Change Order or amendment, and any penalties or damages that may be assessed against Contractor, Contractor shall receive a total compensation no greater than, including reimbursement of Contractor’s expenses, an amount not to exceed any contingency or additive amount pursuant to Section 1.13, plus the Compensation Sum, for a total “Contract Sum” for completion of the work.
2.2 Invoices
(a) Each month (by the first business day of each month) Contractor shall furnish to City an original invoice for all work performed during the preceding month using the form attached hereto as 98 Contract Number Page 9 of 28
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Exhibit E and incorporated herein by this reference. By submitting an invoice for payment under this Agreement, Contractor is certifying compliance with all provisions of the Agreement. (b) All invoices shall include a copy of Contractor’s Certified Payroll and proof that Certified Payroll has been submitted to the DIR. Contractor shall also submit a list of the prevailing wage rates (including federal prevailing wage rates, if applicable) for all employees and subcontractors providing services under this Agreement, as applicable, with Contractor’s first invoice. If these rates change at any time during the term of the Agreement, Contractor shall submit a new list of rates to the City with its first invoice following the effective date of the rate change.
2.3 Payment
(a) Payments Made by City. City shall independently review each invoice submitted by the Contractor to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Contractor which are disputed by City, City will cause Contractor to be paid any progress payment generally within thirty (30) calendar days of receipt of Contractor’s correct and undisputed invoice; however, Contractor acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event that City does not cause Contractor to be paid any progress payment within thirty (30) calendar days of receipt of an undisputed and properly submitted invoice and provided the Project is for construction, Contractor shall be entitled to the payment of interest to the extent allowed under Public Contract Code section 20104.50. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Contractor, not later than seven (7) calendar days after receipt by the City, for correction and resubmission. Returned invoices shall be accompanied by a document setting forth in writing the reasons why the payment request was rejected. Review and payment by the City of any invoice provided by the Contractor shall not constitute a waiver of any rights or remedies provided herein or any applicable law.
(b) Final Payment. The acceptance by Contractor of final payment shall be and shall operate as a full and unconditional release to the City of all claims from Contractor, and all liability from City to Contractor, for all things done or furnished in connection with the work and for every act and neglect of City and others relating to or arising out of the work. No payment, however, final or otherwise, shall operate to release Contractor or sureties from any obligations under this Agreement or the Performance and Payment Bond.
(c) Payments Made by Contractor to Subcontractors. Contractor shall remit payments owed to subcontractors within fifteen (15) calendar days after receiving payments by City if payments are owed by Contractor to any subcontractor qualifying as a small business enterprise, and within thirty (30) calendar days if payments are owed by Contractor to any subcontractor other than a small business enterprise.
2.4 Retention
Pursuant to Section 9203 of the Public Contract Code, City will deduct a five percent (5%) retention from all progress payments, which shall be released to Contractor no later than sixty (60) calendar days from completion of the work. In the event of a dispute between City and Contractor, City may withhold from the final payment an amount not to exceed one hundred fifty percent (150%) of the disputed amount.
2.5 Waiver
Payment to Contractor for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
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2.6 Substitution of Securities
(a) In conformance with the State of California Public Contract Code section 22300, Contractor may substitute securities for any monies withheld by the City to ensure performance under this Agreement.
(b) At the request and expense of Contractor, Contractor has the option of establishing an escrow account with a state or federally chartered bank which shall serve as an escrow agent, for Contractor’s direct deposit of securities as a substitute for retention earnings required to be withheld by the City. Upon Contractor’s completion of its obligations hereunder, as evidenced by the City’s acceptance of the work pursuant to Section 3.4 hereof, the escrow agent shall return the securities to Contractor. The escrow agent shall notify the City within ten (10) calendar days after deposit of the securities. The market value of the securities at the time of the substitution shall be at least equal to the cash amount then required to be withheld as retention. Securities shall be held in the name of the City and shall designate Contractor as the beneficial owner. Alternatively, on written request of Contractor, the City shall make payments of the retention earnings directly to the escrow account.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Schedule of Performance
Contractor shall complete the Project by the date of [90 calendar days] (“Contract Time”) after receiving a “Notice to Proceed” from the City in accordance with any schedule contained in or required to be provided by the Proposal, Bid or Contract Documents, and any revisions thereof approved by the City in writing. All of Contractor’s work on the Project shall be completed within durations established for the individual activities as set forth in the Contract Documents, and any revisions thereof approved by the City in writing. Time is of the essence. If the work is not completed within said time periods, liquidated damages shall apply. The term of this Agreement shall expire one (1) year following City’s acceptance of the Project.
3.2 Liquidated Damages
Pursuant to Government Code section 53069.85, if work is not completed in strict compliance with Section 3.1 of this Agreement or in strict accordance with the schedule of performance provided by any schedule contained in or required to be provided by the Contract Documents (such deadlines collectively referred to herein as “Agreement Deadlines”), it is understood, acknowledged and agreed that the City will suffer damage. It is therefore agreed that the Contractor and its sureties shall pay to the City the sum of $1500.00 for each and every calendar day of delay beyond the completion date in Section 3.1 of this Agreement, or beyond any completion schedule, construction schedule or Project milestones established in or pursuant to the Contract Documents, or beyond the time indicated in the Contract Documents for any individual activity to be performed pursuant to the Agreement. Contractor expressly understands, acknowledges and agrees that such liquidated damages can and shall be imposed if the Contractor does not meet each and every aspect of any activity schedule, completion schedule, construction schedule or Project milestones established in or pursuant to the Contract Documents. If the City accepts work or makes any payment under this Agreement after a default by reason of delays, the acceptance of such work and/or payment(s) shall in no respect constitute a waiver or modification of any provisions regarding Agreement Deadlines, a completion schedule, the Project schedule or the accrual of liquidated damages. In the event the same is not paid, the Contractor further agrees that the City may deduct the amount thereof from any money due or that may become due the Contractor under the Agreement. This Section does not exclude recovery of damages under provisions of the Contract Documents, and is expressly in addition to the City’s ability to seek other damages. To the extent required by Government Code section 4215, Contractor shall 100
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not be assessed liquidated damages for delay in completion of the work when such delay was caused by the failure of the City or owner of a utility to provide for removal or relocation of utility facilities.
3.3 Force Majeure
The time period(s) specified in the Section 3.1 and pursuant to this Agreement for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics that are not reasonably foreseeable, quarantine restrictions that are not reasonably foreseeable, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10) calendar days of the commencement of such delay notify the Project Manager in writing of the causes of the delay. The Project Manager shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Project Manager such delay is justified. The Project Manager’s determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor’s sole remedy being extension of the Agreement pursuant to this Section.
3.4 Final Acceptance
Acceptance of the Project shall only be by action of the City. Neither the acceptance nor any prior inspections or failure to inspect shall constitute a waiver by City of any defects in the work. From and after acceptance, the Project shall be owned and operated by City. As a condition to acceptance, Contractor shall certify to City in writing that all of the work has been performed in strict conformity with the Agreement and that all costs have been paid or supplied to City for security required herein, satisfactory to City, guaranteeing such performance.
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives of Personnel of Contractor
(a) In conformance Contractor’s ownership, management and licensing is tied to specific principal representatives (“Principals”) who are designated as [PRINCIPAL NAMES, TITLES, WORK PHONE AND WORK EMAIL]. The Principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. All personnel of Contractor, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the Principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of the Project Manager. Additionally, Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor’s staff and subcontractors, if any, assigned to perform the services required under this Agreement. Contractor shall notify (and, as required by law, secure City approval in regards to subcontractors before changes in Contractor’s subcontractors, of) City of any changes in Contractor’s staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance.
(b) Prior to the start of construction, Contractor shall designate in writing a primary onsite or on-call representative who shall be available to respond to construction-related issues, emergencies, or complaints at all hours. Contractor shall provide the name and a direct telephone number for such representative to the City’s Project Manager. This designation may be updated as necessary upon written notice to the City.
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4.2 Status of Contractor
Contractor shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Contractor shall not at any time or in any manner represent that Contractor or any of Contractor’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Contractor, nor any of Contractor’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Contractor expressly waives any claim Contractor may have to any such rights.
4.3 Project Manager
The Project Manager shall be designated by the City’s Director of Public Works or City Engineer. It shall be the Contractor’s responsibility to assure that the Project Manager is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Project Manager. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Project Manager. The Project Manager shall have authority, if specified in writing by the City’s Director of Public Works or City Engineer, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4.4 Independent Contractor
Neither City, nor any of its officers, employees or agents, shall have any control over the manner or means by which Contractor, or its officers, employees, agents or subcontractors, perform the services required herein, except as otherwise set forth herein. Contractor shall perform all services required herein as an independent contractor of City and shall remain under only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it, or any of its officers, employees, agents or subcontractors, are officers, employees or agents of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor. Contractor shall not incur or have the power to incur any debt, obligation or liability whatever against City, or bind City in any manner. Contractor represents and warrants that the personnel used to provide services to City pursuant to this Agreement shall at all times be under Contractor’s exclusive control and direction. No City employee benefits shall be available to Contractor, its officers, employees, agents or subcontractors, in connection with the performance of this Agreement. City shall not be liable for compensation or indemnification to Contractor, its officers, employees, agents or subcontractors, for injury or sickness arising out of performing services hereunder. In the event that Contractor or any officer, employee, agent, or subcontractor of Contractor providing services under this Agreement claims or is determined by a federal or state agency, a court of competent jurisdiction, or the California Public Employees’ Retirement System, to be classified as other than an independent contractor for City, then Contractor shall indemnify, defend, and hold harmless City for the payment of any and all assessed fines, penalties, judgments, employee and/or employer contributions, and any other damages and costs assessed to City as a consequence of, or in any way attributable to, the assertion that Contractor, or any officer, employee, agent, or subcontractor Contractor used to provide services under this Agreement, is/are employees of City.
4.5 Subcontracting or Assignment
The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the 102
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express written approval of the City and in compliance with the Subletting and Subcontracting Fair Practices Act, Public Contract Code section 4100, et seq. Contractor shall be responsible for ensuring compliance by any subcontractor or lower tier subcontractor under it with this Agreement, all state and federal laws, codes and regulations, and municipal ordinances and regulations of City. All subcontractors shall obtain, at its or Contractor’s expense, such licenses, permits, registrations and approvals (including from the City) as may be required by law for the performance of any services or work under this Agreement. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be voidable at the option of City. No approved transfer shall release the Contractor, or any surety or insured of Contractor, of any liability hereunder without the express consent of City.
ARTICLE 5. INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance Coverages
Prior to commencement of any services under this Agreement, and without limiting Contractor’s indemnification obligation to City, Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, for the duration of the Agreement, primary policies of insurance of the type and amounts below, as marked by checkmark, issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by City, which shall cover all elected and appointed officers, employees, agents, designated volunteers, and attorneys of City. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Contractor ninety (90) calendar days advance written notice of such change. If such change results in substantial additional cost to Contractor, City and Contractor may renegotiate Contractor’s compensation solely in regards to insurance coverage.
ONLY THOSE PROVISIONS CHECKED WITH AN “X” TO APPLY:
☒General liability insurance. A policy of commercial general liability insurance, with coverage at least as broad as Insurance Services Office (“ISO”) form CG 00 01, written on a per occurrence basis for bodily injury, personal injury and property damage. Defense costs must be paid in addition to limits. Coverage for an additional insured shall not be limited to its vicarious liability. The policy must include contractual liability that has not been amended.
Any endorsement restricting standard ISO “insured contract” language will not be accepted.
Limits shall be no less than $1,000,000 per occurrence for all covered losses, and no less than $2,000,000 general aggregate, for bodily injury, personal injury and property damage, and a $2,000,000 completed operations aggregate. Contractor must maintain a policy of commercial general liability insurance for as long as there is a statutory exposure to completed operations claims.
☒Automobile liability insurance. A policy of comprehensive automobile liability insurance, at least as broad as ISO form CA 00 01, written on a per occurrence basis covering bodily 103
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injury and property damage in an amount not less than $1,000,000 combined single limit for each accident. Said policy shall include coverage for owned, non-owned, leased, hired cars and any automobile.
☒Workers’ compensation insurance. Contractor shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000). A policy of worker’s compensation insurance in such amount as will fully comply with the laws of the State of California (statutory limits) as well as a policy of employer’s liability insurance (with limits of at least $1,000,000), which shall each indemnify, insure and provide legal defense for Contractor against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by Contractor in the course of carrying out the work or services contemplated in this Agreement. In addition, Contractor shall require each subcontractor to similarly maintain a policy of worker’s compensation insurances and employer’s liability insurance in according with the laws of the State of California for all of the subcontractor’s employees.
☒Builder’s Risk Insurance. Contractor shall maintain, from upon commencement of work and through the entire duration of the Project until only the City has an insurable interest, Builder’s Risk (Course of Construction) insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions or provisional limit provisions. All subcontractors (excluding those solely responsible for design work) of any tier and suppliers shall be included as additional insureds as their interests may appear. Contractor shall not be required to maintain property insurance for any portion of the Project following transfer of control thereof to City. The policy shall contain a provision that all proceeds from the Builder’s Risk policy shall be made payable to the City. The City will act as a fiduciary for all other interests in the Project. Policy shall be provided for replacement value on an “all risk” basis for the completed value of the Project. There shall be no coinsurance penalty or provisional limit provision in any such policy. The policy must include: (1) coverage for any ensuing loss from faulty workmanship, nonconforming work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) ordinance or law coverage for contingent rebuilding, demolition, and increased costs of construction; (5) transit coverage (unless insured by the supplier or receiving contractor), with sub-limits sufficient to insure the full replacement value of any key equipment item; (6) ocean marine cargo coverage insuring any Project materials or supplies, if applicable; (7) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Project site or any staging area. If the Project does not involve new or major reconstruction, then at the option of City, an Installation Floater may be acceptable. For such projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the work, including during transit, installation, and testing at the Project site.
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☒Pollution Liability Insurance. Contractor shall maintain Environmental Impairment Liability insurance, written on a Contractor’s Pollution Liability form or other form acceptable to City providing coverage for liability arising out of sudden, accidental, and gradual pollution and remediation. The policy limit shall be no less than $1,000,000 per claim and in the aggregate.
All activities contemplated in this Agreement shall be specifically scheduled on the policy as “covered operations.” The policy shall provide coverage for the hauling of waste from the project site to the final disposal location, including non-owned disposal sites. ☒Excess Liability and Umbrella Liability Insurance. Excess liability insurance and/or umbrella liability insurance may be used to satisfy the obligations herein. If excess liability insurance is used then the policy shall meet all the requirements herein and be at least as broad as the primary coverages set forth herein. Such policy shall: 1) include a drop down feature requiring the policy to respond if primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; 2) be payable on behalf of wording as opposed to reimbursement; 3) have concurrency of effective dates with primary policies; 4) “follow form” to the underlying primary policies; and, 5) provide insureds, under primary policies required herein, shall be insureds under the excess liability policy.
5.2 General Insurance Requirements
(a) Proof of Insurance, Enforcement and Notice. No work or services under this Agreement shall commence until both Contractor has provided City with insurance certificates, endorsement forms and appropriate insurance binders, signed by a person authorized by the Insurer to bind coverage on its behalf, evidencing the above insurance coverages, as well as said documentation is approved by City.
City reserves the right to inspect complete, certified copies of, and endorsements to, all required insurance policies, at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City. In the event any insurance policy required under this Agreement is cancelled or amended (and the insurance policy is not replaced pursuant to subsection (b) below), or does not comply with Article 5, then: 1) City has the right but not the duty to obtain insurance required herein and any premium paid by City will be promptly reimbursed by Contractor or City will withhold amounts sufficient to pay premium from Contractor payments; or, 2) City, notwithstanding any other provisions of this Agreement, may immediately terminate this Agreement. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor’s performance under this Agreement, and that involve or may involve coverage under any of the required insurance policies.
(b) Cancellation/Amendment. All of herein required policies of insurance shall provide the insurance may not be amended or cancelled by insurer or any Party hereto without providing thirty (30) calendar days prior written notice (with exception of ten (10) calendar days prior written notice for nonpayment of premium) to City. In the event any of said policies of insurance are amended or cancelled, Contractor shall, five (5) business days prior to the cancellation date, submit new evidence of insurance, or reinstatement of policy, in conformance with this Agreement to City.
(c) Additional Insureds. All of the above policies shall name City and its elected and appointed officers, employees, agents and designated volunteers (“City Parties”) as additional insureds and such coverage shall contain no special limitations on the scope of protection afforded to City and City Parties.
A severability of interests provision must apply for all additional insureds ensuring that Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability, and policies of insurance shall not contain any cross-liability exclusions. 105
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(d) Primary, Subrogation, Contribution and Coverage. All of the above policies of insurance shall be primary insurance. The insurers for above policies, Contractor and any subcontractors are all deemed hereof to waive all rights of subrogation and contribution they may have against City or City Parties, and their respective insurers, and all insurance policies required herein shall be endorsed to waive such rights. Any insurance maintained by City or City Parties will apply in excess of, and not contribute with, Contractor’s insurance. If Contractor maintains broader coverage and/or higher limits than the minimum amounts provided herein, City requires and shall be entitled to the broader coverage and/or higher limits maintained by Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City and City Parties. None of the coverages required herein will be in compliance with this Agreement if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. Requirements of specific coverage features or limits contained herein are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any Party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. (e) Limitations, Self- Insured Retention and Deductibles. Contractor agrees that requirements of Article 5 shall not be construed as limiting in any way the extent to which Contractor may be held responsible for the payment of damages to any persons or property resulting from Contractor’s activities or the activities of any person or persons for which Contractor is otherwise responsible nor shall it limit Contractor’s indemnification liabilities as provided in Section 5.3. All insurance policies must specify that where the primary insured does not satisfy any self-insured retention, any additional insured may satisfy the self-insured retention (without impairment of obligation of primary insured under this Agreement to satisfy any self-insured retention). Any deductibles or self-insured retentions must be declared to and approved by City. At City’s option, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City and City Parties, or Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, attorneys’ fees, defense expenses and claims. (f) Completed operations coverage. Completed operations coverage shall extend a minimum of three 1 year after 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 on behalf” of the insured. Policy shall contain no language that would invalidate or remove 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 on the part of the insurer. (g) Pass through clause. Contractor agrees to ensure that its subconsultants, subcontractors, and any other party involved with the Project who is brought onto or involved in the project by Contractor, provide the same minimum insurance coverage and endorsements required of Contractor.
Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of Article 5 of this Agreement. Contractor agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the Project will be submitted to City for review.
5.3 Indemnification
(a) General Obligations. Contractor agrees, to the maximum extent permitted by law, to indemnify, defend and hold harmless City and its elected and appointed officers, employees, agents, designated volunteers, attorneys, successors and assigns (each an “Indemnitee” and collectively, “Indemnitees”) against, and will hold and save them and each of them harmless from, whether actual or threatened, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (herein “Claims or 106
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Liabilities”) that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Contractor, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Contractor is legally liable (each an “Indemnitor” and collectively, “Indemnitors”), or arising from Indemnitors’ reckless or willful misconduct, or arising from Indemnitors’ negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith: 1) Contractor will defend any action or actions filed or threatened in connection with any such Claims or Liabilities, or at option of Indemnitee(s) will reimburse and pay for all costs and expenses, including legal costs and attorneys’ fees, incurred by Indemnitee(s) in connection therewith; and, 2) Contractor will promptly pay any judgment rendered against Indemnitee(s) for any such Claims or Liabilities, and will save and hold Indemnitee(s) harmless therefrom. (b) Further Provisions. The indemnity obligation herein shall be binding on successors, assigns and heirs of Contractor and shall survive termination of this Agreement. Contractor shall incorporate similar indemnity agreements as provided herein with its subcontractors, and if Contractor fails to do so Contractor shall be fully responsible to indemnify City hereunder therefor. Failure of City and/or City Parties (collectively “City” for solely this Section 5.2(b)) to monitor compliance with any of the indemnification provisions herein shall not be a waiver hereof. The indemnification provisions herein do not apply to claims or liabilities occurring as a result of City’s sole negligence, active negligence or willful misconduct, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City’s negligence. The indemnification provided herein includes Claims or Liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Indemnitors in the performance of professional services hereunder. Payment of invoices by City is not a condition precedent to enforcement of the indemnity obligation herein. In the event of any dispute between Contractor and City, as to whether liability arises from the sole negligence, active negligence or willful misconduct of City, Contractor will be obligated to pay for City’s defense until either such time as a final judgment has been entered adjudicating, or agreement between the Parties is reached determining, City as solely negligent, actively negligent or responsible for willful misconduct. Contractor will not be entitled in the absence of such a determination or agreement to any reimbursement of defense costs including but not limited to attorneys’ fees, expert fees and costs of litigation.
In instances where City is shown to have been actively negligent and/or engaged in willful misconduct, and where City’s active negligence and/or willful misconduct accounts for only a percentage of the liability involved, the obligation of Contractor will be for that entire portion or percentage of liability not attributable to the active negligence and/or willful misconduct of City. City may offset against the amount of any fees due to Contractor under this Agreement any amount due to City from Contractor as a result of Contractor’s failure to promptly pay to City any reimbursement or indemnification arising under this Agreement. Such offset, if any, does not satisfy any amount, greater than the offset, due to City from Contractor.
5.4 Notification of Third Party Claims
Pursuant to Public Contract Code Section 9201, the City has full authority to compromise or otherwise settle any claim relating to this Agreement at any time. City shall timely notify Contractor of the receipt of any third-party claim relating to the work under this Agreement. City shall be entitled to recover from Contractor its reasonable costs incurred in providing such notification.
5.5 Performance and Payment Bonds
Concurrently with execution of this Agreement Contractor shall deliver to the City all of the following bonds:
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For all Projects with a Contract Sum in Excess of $25,000: A payment bond, securing the payment of all persons furnishing labor and/or materials in connection with the work under this Agreement, in an amount not less than 100% of the Contract Sum.
Optional Bond Assurances: As applicable [ONLY THOSE CHECKED WITH AN ‘X’ TO APPLY]:
☒ Performance Bond: A performance bond securing the faithful performance of this Agreement, in an amount not less than 100% of the Contract Sum. ☐ Small Project Payment Bond: For Projects with a Contract Sum of less than $25,000, a payment bond, securing the payment of all persons furnishing labor and/or materials in connection with the work under this Agreement, in an amount not less than 100% of the Contract Sum.
All bonds, as applicable, shall be on the applicable forms provided in Exhibit C (“Performance Bond Form”) and Exhibit D (Payment Bond Form) attached hereto and incorporated herein by this reference. The bonds shall each contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his/her power of attorney. The bonds shall be unconditional and remain in force during the entire term of the Agreement until released pursuant to Section 5.7 hereof.
5.6 Sufficiency of Surety
Bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better in the most recent edition of Best’s Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better. If the City determines that the work to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the bonds may be changed accordingly upon receipt of written notice from the City’s Risk Manager. If such change results in substantial additional cost to Contractor, City and Contractor may renegotiate Contractor’s compensation solely in regards to bond coverage.
5.7 Release of Securities
City shall release the performance bond and payment bond when the following have occurred:
Contractor has made a written request for release and provided evidence of satisfaction of all other requirements under both the forms of the applicable bond attached to this Agreement as well as Article 5 of this Agreement;
the Project has been accepted; and
after passage of the time within which lien claims are required to be made pursuant to applicable laws; if lien claims have been timely filed, City shall hold the payment bond until such claims have been resolved, Contractor has provided statutory bond, or otherwise as required by applicable law.
ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records
Contractor shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies, certified and accurate copies of payroll records in compliance with all applicable laws, or other documents relating to the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Project Manager to evaluate the performance of such services. Any and all such books and records shall be maintained in accordance with generally accepted accounting principles, 108
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including but not limited to in accordance with the requirements of Labor Code section 1776, shall be complete and detailed, and shall be readily accessible. The Project Manager shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts. Such books and records shall be maintained either for a period of no less than three (3) years following completion of the services hereunder, or for such period of time as required by applicable law, whichever period of time is longer. City shall have access to such books and records in the event any audit is required. 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 Auditor General for a period of three (3) years after final payment. Contractor shall fully cooperate with the City in providing access to any and all Contractor books and records, and any other applicable documents, if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
6.2 Reports
Contractor shall periodically submit written reports to the Project Manager concerning performance of the services, upon request, and/or as necessary for Project Manager to be informed of both performance of services as well as any decisions which must be made by City or Project Manager. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein, Contractor shall promptly notify the Project Manager of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto.
6.3 Ownership of Documents
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared (regardless of whether complete or incomplete) by Contractor, its officers, employees, agents and subcontractors in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Project Manager or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City’s sole risk and without liability to Contractor, and Contractor’s guarantee and warranties shall not extend to such use, reuse or assignment. Contractor may retain copies of such documents and materials under express condition that Contractor agrees such documents and materials are the sole property of City. All subcontractors shall provide for assignment to City of any documents and materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. Moreover, Contractor agrees, affirms and warrants that with respect to any documents and materials that may qualify as “works made for hire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for the City.
6.4 Confidentiality and Release of Information
All information gained or work product produced by Contractor in its performance of this Agreement shall be considered confidential, unless such information is in the public domain. Contractor shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Project Manager. 109
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No news releases, including photographs, public announcements, or confirmations of the same, of any part of the work, shall be made without prior written authorization from City. Contractor, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the Project Manager or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Contractor immediately gives City notice of such court order or subpoena.
If Contractor, or any officer, employee, agent or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any damages, costs and fees, including attorneys’ fees, caused by or incurred as a result of Contractor’s conduct.
As concerning, regarding or related to, in any way, this Agreement and the work performed thereunder: a) Contractor shall immediately notify City should Contractor, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder; b) City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing or similar proceeding; and, c) Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law
This Agreement shall be interpreted, construed and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Inyo, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Eastern District of California.
7.2 Default of Contractor
It is City's right to suspend or terminate this Agreement upon the occurrence, in the City’s sole reasonable determination, of any of the following events by default of Contractor: (1) Contractor refuses or fails to perform the work required under this Agreement with diligence to ensure timely completion of the Project pursuant to Section 3.1; (2) Contractor fails to comply with the provisions of this Agreement; (3) Contractor violates any ordinance, regulation, state or federal law which applies to its performance under this Agreement; (4) Contractor files bankruptcy or otherwise becomes insolvent; (5) Contractor makes a general assignment for the benefit of creditors; (6) a trustee or receiver is appointed for the Contractor or his property; (7) Contractor repeatedly fails to supply sufficient skilled workers or suitable materials or equipment; (8) Contractor has abandoned the work or the Project, and/or; (9) Contractor disregards proper directives of the architect, inspector, or Project Manager under the Contract Documents. It will be at City's sole discretion to allow Contractor to remedy each cause for the termination without waiving City's right to terminate this Contract or restricting any other right or remedy under this Contract or law.
In the event that Contractor is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Contractor for any work performed after the date of default and can terminate or suspend this Agreement immediately by written notice to Contractor. If 110
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the Project Manager determines that Contractor is in default in the performance of any of the terms or conditions of this Agreement, the Project Manager shall cause to be served upon Contractor a written notice of the default. Contractor shall have ten (10) calendar days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that Contractor fails to cure its default within such period of time, the City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.
Contractor shall be liable for damages sustained by City from the termination of the Agreement under this Section 7.2, including, but not limited to, all cost necessary for repair and completion of the work. City shall have the right to withhold monies otherwise payable to Contractor until the Project is complete. If City incurs additional costs, expenses, or other damages due to the failure of Contractor to perform the work pursuant to this Agreement, said expenditures shall be deducted from the amounts withheld (and if such deduction does not fully compensate City for said expenditures, then Contractor remains fully liable for the remaining balance owed to City). Should there be a balance of monies held after all expenses have been paid, the balance will be paid to Contractor upon completion of the Project.
7.3 Suspension or Termination
The City may at any time, for any reason (including but not limited to for City’s convenience, environmental considerations, or when it is in the best interests of the City), with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon Contractor at least ten (10) calendar days prior written notice. Upon receipt of said notice, Contractor shall immediately cease all work under this Agreement, unless the notice provides otherwise. If the City suspends a portion of this Agreement such suspension shall not make void or invalidate the remainder of this Agreement. Upon termination, Contractor shall be entitled to compensation for completion of any portion of the Project accepted by City up to the effective date of termination unless any portion of the Project is accepted by City after termination in which event Contractor shall be paid for such completed portion. Upon receipt of a termination notice, Contractor shall immediately discontinue the work and placement of orders for materials, facilities and supplies in connection with the performance of this Agreement, unless otherwise directed in the notice. Contractor shall promptly deliver to City all completed work, including plans, as-builts, forms, reports, and products. Any dispute regarding the amount owed to Contractor shall not diminish the right of City to receive and use such documents or materials. Contractor shall not be entitled to any claim or lien against City for any additional compensation or damages in the event of termination of this Agreement.
7.4 Dispute Resolution Process
In the event of any dispute or controversy with the City over any matter whatsoever, the Contractor shall not cause any delay or cessation in or of work, but shall proceed with the performance of the work in dispute. The Contractor shall retain any and all rights provided that pertain to the resolution of disputes and protests between the Parties. The disputed work will be categorized as an “unresolved dispute” and payment, if any, shall be as later determined as set forth below. The Contractor shall keep accurate, detailed records of all disputed work, claims and other disputed matters.
Section 20104 et seq. of the California Public Contract Code prescribes a process utilizing informal conferences, non-binding judicial-supervised mediation, and judicial arbitration to resolve disputes on construction claims of $375,000 or less. Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims. The intent of this Section is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code. This Section shall be construed to be consistent with said statutes. 111
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For purposes of these procedures, “claim” means a separate demand by the Contractor, after the City has denied Contractor’s timely and duly made request for payment for extra work and/or a time extension, for (A) a time extension, (B) payment of money or damages arising from work done by or on behalf of the Contractor pursuant to the Agreement and payment of which is not otherwise expressly provided for or the Contractor is not otherwise entitled to, or (C) an amount the payment of which is disputed by the City.
The following requirements apply to all claims to which this Section applies:
Claim Submittal. The claim shall be in writing and include the documents necessary to substantiate the claim. Claims governed by this procedure must be filed on or before the date of final payment. Nothing in this section is intended to extend the time limit or supersede notice requirements otherwise provided in the Agreement for the filing of claims, including all requirements pertaining to compensation or payment for extra work, disputed work, and/or changed conditions. Failure to follow such contractual requirements shall bar any claims or subsequent lawsuits for compensation or payment thereon. (b) Supporting Documentation. The Contractor shall submit all claims in the following format:
(i) Summary of the claim, including references to the specific Contract Document provisions upon which the claim is based.
(ii) List of documents relating to claim: (a) Specifications, (b) Drawings, (c) Clarifications (Requests for Information), (d) Schedules, and (e) Other. (iii) Chronology of events and correspondence related to the claim. (iv) Statement of grounds for the claim.
(v) Analysis of the claim’s cost, if any.
(vi) Analysis of the claim’s time/schedule impact, if any. (c) City’s Response. Upon receipt of a claim pursuant to this section, City shall conduct a reasonable review of the claim and, within a period not to exceed 45 calendar days, shall provide the Contractor a written statement identifying what portion of the claim is disputed and what portion is undisputed.
Any payment due on an undisputed portion of the claim will be processed and made within 60 calendar days after the City issues its written statement.
(i) If the City needs approval from the City Council to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the claim, and the City Council does not meet within the 45 calendar 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 days following the next duly publicly noticed meeting of the City Council after the 45-day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputed portion.
(ii) Within 30 calendar 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 shall be requested and provided pursuant to this subdivision, upon mutual agreement of City and the Contractor. (iii) The City’s written response to the claim, as further documented, shall be submitted to the Contractor within 30 calendar days (if the claim is less than $50,000, within 15 calendar days) after receipt of the further documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation, whichever is greater. (d) 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, in writing, either within 15 calendar days of receipt of the City’s response or within 15 calendar days of the City’s failure to respond within the time prescribed, respectively, and demand an informal conference to meet and confer for 112
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settlement of the issues in dispute. Upon receipt of a demand, the City shall schedule a meet and confer conference within 30 calendar days for settlement of the dispute. (e) 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 that remains in dispute and the portion that is undisputed.
Any payment due on an undisputed portion of the claim shall be processed and made within 60 calendar 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 City 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 agree to select a mediator at a later time.
(i) 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 regard to 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 neutral mediator.
(ii) For purposes of this section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the Parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this section. (iii) 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 Public Contract Code Section 20104.4 to mediate after litigation has been commenced. (iv) All unresolved claims shall be considered jointly in a single mediation, unless a new unrelated claim arises after mediation is completed. (f) City’s Responses. The City’s failure to respond to a claim from the Contractor within the time periods described in this section or to otherwise meet the time requirements of this section shall result in the claim being deemed rejected in its entirety. A claim that is denied by reason of the City’s failure to have responded to a claim, or its failure to otherwise meet the time requirements of this section, shall not constitute an adverse finding with regard to the merits of the claim or the responsibility of qualifications of the Contractor. City’s failure to respond shall not waive City’s rights to any subsequent procedures for the resolution of disputed claims.
(g) Government Code Claims. If (following any applicable mediation) the claim or any portion remains in dispute, the Contractor must comply with the claim procedures set forth in Government Code section 900 et seq. prior to filing any lawsuit against the City. 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 extra work, disputed work, construction claims, and/or changed conditions, including any required mediation, have been followed by Contractor. If no such Government Code claim is submitted, or if the prerequisite contractual requirements are not satisfied, no action against the City may be filed. A Government Code claim must be filed no earlier than the date that Contractor completes all contractual prerequisites to filing a Government Code claim, including any required mediation. A Government Code claim shall be inclusive of all unresolved claims unless a new unrelated claim arises after the Government Code claim is submitted. For purposes of Government Code section 900 et seq., 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 to the City until the time the claim is denied, including any period of time utilized by the meet and confer conference or mediation that does not result in a complete resolutions of all claims. (h) Civil Actions for Claims of $375,000 or Less. The following procedures are established for all civil actions filed to resolve claims totaling $375,000 or less:
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(i) Within 60 calendar days, but no earlier than 30 calendar 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 section 9204 and the procedures in this Section. The mediation process shall provide for the selection within 15 calendar days by both Parties of a disinterested third person as mediator, shall be commenced within 30 calendar days of the submittal, and shall be concluded within 15 calendar days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court or by stipulation of both Parties. If the Parties fail to select a mediator within the 15-day period, either Party may petition the court to appoint the mediator. (ii) If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1141.11 of that code. The Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration. (iii) Upon stipulation of the Parties, arbitrators appointed for these purposes shall be experienced in construction law, and, upon stipulation of the Parties, mediators and arbitrators shall be paid necessary and reasonable hourly rates of pay not to exceed their customary rate, and such fees and expenses shall be paid equally by the Parties, except in the case of arbitration where the arbitrator, for good cause, determines a different division.
(iv) In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, any Party who after receiving an arbitration award requests a trial de novo but does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, pay the attorney’s fees of the other Party arising out of the trial de novo.
7.5 Waiver
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Contractor shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor of noncompliance with any requirement of this Agreement imposes no additional obligations on City nor does it waive any rights hereunder. Payment to Contractor for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
7.6 Rights and Remedies Are Cumulative
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
7.7 Unfair Business Practices Claims
Pursuant to Public Contract Code section 7103.5, in entering into this Agreement, Contractor offers and agrees to assign to the City all rights, title, and interest in and to all causes of action it may have under 114
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Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services or materials related to this Agreement. This assignment shall be made and become effective at the time the City tenders final payment to the Contractor without further acknowledgment by the Parties.
7.8 Legal Action
In addition to any other rights or remedies, and as consistent with this Agreement and applicable law, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Contractor shall file a statutory claim pursuant to Government Code sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
7.9 Attorneys’ Fees
If either Party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees. Attorneys’ fees shall include attorneys’ fees on any appeal, and a Party entitled to attorneys’ fees shall be entitled to all other reasonable costs for investigating such action, consultants’ fees, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation.
Such fees and costs shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 8. INDIVIDUAL LIABILITY, CONFLICTS, AND NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees
No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest
Contractor covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contractor’s performance of services under this Agreement. Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Project Manager.
Contractor agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. City, in its sole discretion, shall determine the existence of a conflict of interest and may terminate this Agreement in the event such a conflict of interest exists upon sending Contractor written notice describing the conflict. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects their financial interest or the financial interest of any corporation, partnership or association in which they are, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination
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Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class. Contractor shall require the foregoing covenants to be placed in agreements with all subcontractors.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Provisions Required By Law
Each and every provision of law and clause required by law to be inserted in this Agreement shall be deemed to be inserted herein, and the Agreement shall be read and enforced as though it were included herein. If through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon application of either Party, the contract shall forthwith be physically amended to make such insertion or correction.
9.2 Notices
Any notice or other communication either Party desires or is required to give to the other Party or any other person in regards to this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, in the case of City addressed to the name and title of the Project Manager, at 377 W. Line Street, Bishop Ca, 93514, and in the case of Contractor, to the person(s) at the address designated on the execution page of this Agreement. Either Party may change its address by notifying the other Party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
9.3 Interpretation
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement, headings used, or any other rule of construction which might otherwise apply.
9.4 Counterparts
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
9.5 Integration; Amendment
This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the Parties as to the Agreement. It is understood that there are no oral agreements between the Parties hereto affecting this Agreement, and this Agreement supersedes and cancels any and all prior and contemporaneous negotiations, arrangements, agreements and understandings, if any, between the Parties, concerning this Agreement, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing, approved by the Contractor and by 116
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the City, and consistent with the Bishop Municipal Code. The Parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
9.6 Severability
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
9.7 No Undue Influence
Contractor declares and warrants that no undue influence or pressure was used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City has or will receive compensation, directly or indirectly, from Contractor, or from any officer, employee or agent of Contractor, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling City to remedies for default in Section 7.2 and any and all remedies at law or equity.
9.8 Unauthorized Aliens
Contractor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Contractor so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by City.
9.9 Corporate Authority
The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which said Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
CITY:
CITY OF BISHOP, a California municipal corporation
Pam Foster, City Administrator
ATTEST:
Robin Picken, City Clerk
APPROVED AS TO FORM:
JONES MAYER
Dean Pucci, City Attorney
CONTRACTOR:
___________________, a ____________________
By:
Name:
Title:
By:
Name:
Title:
Address:
Two corporate officer signatures required when Contractor is a corporation, with one signature required from each of the following groups: 1) Chairperson of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. (Cal. Corp. Code § 313.) APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY
BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONTRACTOR’S BUSINESS ENTITY
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EXHIBIT A
CONTRACTOR’S PROPOSAL / BID
SEE ATTACHED
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120
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125
126
127
128
129
130
131
132
133
134
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136
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EXHIBIT B
SPECIAL REQUIREMENTS
(Superseding Agreement Template)
[NOTE (and delete this entire NOTE when Exhibit B is finalized): All revisions to the template go in this Exhibit B. If Consultant requests revisions to template, and/or if Staff recommends revisions to template: 1) delete below term “NOT APPLICABLE”; and, 2) write the requested and/or recommended revisions below for review by City Attorney’s office.]
NOT APPLICABLE
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EXHIBIT C
FAITHFUL PERFORMANCE BOND
SEE ATTACHED
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EXHIBIT D
LABOR AND MATERIALS PAYMENT BOND
SEE ATTACHED
140