Agenda packet, second session — Brentwood City Council, December 12, 2023 (part 1 of 5)

DECEMBER 12, 2023, 7:00 PM

CITY COUNCIL/SUCCESSOR AGENCY AGENDA
CITY COUNCIL CHAMBERS, 150 CITY PARK WAY
*IMPORTANT NOTICE ABOUT PUBLIC COMMENTS AND MEETING PARTICIPATION* City Council Members will be participating from the Council Chamber. Members of the public are invited to attend and participate at: the Council Chambers, 150 City Park Way, Brentwood CA As a courtesy and technology permitting, members of the public may provide remote public comment during public hearings and on business items via the City’s Zoom Platform. However, the City cannot guarantee that the public’s access to teleconferencing technology will be uninterrupted, and technical difficulties may occur from time to time. In those instances, so long as the public may still attend the meeting in person, the meeting will continue. In addition, the Zoom participation option is provided to the public as a courtesy in order to facilitate participation. If Zoom participation is not enabled, the meeting will continue with public attendance in person only. Members of the public desiring to provide comments as a part of the meeting are encouraged to either submit written comments by 3:00 p.m. prior to the meeting or to attend the meeting in person.

HOW PARTICIPATE
The public is invited to participate in the City Council meeting using any of the following methods:

1. IN PERSON:
a. Members of the public can provide in-person comments in the Council Chambers.

Members of the public are encouraged, but not required, to fill out a speaker card. The Council Chambers will have seating available for members of the public to attend in person up to full seating capacity.

2. REMOTE (if enabled): Remarks by members of the public participating via Zoom are limited to speaking on items listed under public hearings; business items; and requests for future agendas items, existing requests. Zoom participation during the general public comment period will not be accepted, except in the event a City Council Member is participating remotely under the provisions of Government Code § 54953 (f). a. Zoom: www.brentwoodca.gov/vcc or Zoom Webinar ID: 760 1397 0037 b. Zoom Phone Numbers. Dial Toll Free: (833) 548-0276 or (833) 548-0282 or (877) 853-5247.
c. During the meeting, each period for public comment will be announced, and participants may use the “Raise Hand” feature on Zoom to request to speak. (If you need instructions on how to use this feature, please contact the City Clerk by noon of the meeting date at [email protected] or 925.516.5182.)

3. E-MAIL
a. Public comments can also be submitted via e-mail to [email protected].

Any public comments received up until 3:00 p.m. of the meeting date will be:

1. distributed to the Council via email before the meeting,

2. posted online for public inspection at www.brentwoodca.gov/meetings and

3. later summarized in the meeting minutes.
b. As e-mails containing public meeting comments are part of the official record, note that personal contact information may be published if it is included with your e-mail.

4. TO WATCH OR LISTEN ONLY:
a. The public may view the meeting via one-way video feed by selecting the video option at the City Council Agendas’ link on the City webpage at www.brentwoodca.gov or via the City’s YouTube Channel: https://www.youtube.com/c/cityofbrentwoodca

CITY COUNCIL/SUCCESSOR AGENCY AGENDA
Zoom Webinar ID: 760 1397 0037

December 12, 2023, 7:00 p.m.

City Council Chambers
150 City Park Way
Brentwood, CA 94513
City Council Zoom Link
A. CALL TO ORDER & ROLL CALL
B. PLEDGE OF ALLEGIANCE
C. PUBLIC COMMENTS
Pursuant to Council/Administrative Policy, Meeting Rules and Procedures section 5.2 (Decorum Generally – Public), comments by members of the public are generally limited to five minutes, or less time if a large number of speakers is anticipated, or if approved by the Mayor. Speakers desiring answers to questions should direct them to the Council/Successor Agency and, if relevant, they may direct them to the appropriate staff member. Speakers can also follow up directly with staff during regular City business hours.

Please file a speaker’s card with the City Clerk on the form provided on the counter at the back of the Chambers.

During this portion of the meeting those present in the Council Chambers are permitted to speak on items that are listed under Presentations; Informational Reports; Consent Calendar; Requests for Future Agenda Items- New Items; or items not on the agenda during this portion of the meeting. Public comments for scheduled agenda items will be taken at that time.

Zoom participation during this general public comment period will not be accepted, except in the event a City Council Member is participating remotely under the provisions of Government Code § 54953(f).

D. INFORMATIONAL REPORTS FROM COUNCIL MEMBERS, COMMITTEES, LIAISONS, AND STAFF This portion of the agenda is to provide an opportunity for Council Members to report on attendance at events, subcommittee meetings, and entities on which the Council Member has been appointed as a liaison and for staff to provide brief updates and/or information to the City Council.

E. REQUESTED FUTURE AGENDA ITEM(S)
E.1 Consider Requests from Vice Mayor Meyer and Council Member Mendoza related to traffic safety enhancements in the Trilogy subdivision.

Title/Recommendation
That the City Council consider and discuss the future agenda item requests

1. From Vice Mayor Meyer for continued discussion related to traffic safety mitigation measures for the Trilogy subdivision; and

2. From Council Member Mendoza for an update on traffic solutions being implemented related to the Trilogy Subdivision.

E.2 Consider Requests from Mayor Bryant and Council Member Pierson related to forming a single proclamation from the suggestions to support peace and condemn Islamophobia Title/Recommendation
That the City Council consider and discuss the requests to form a single proclamation:

1. From Mayor Bryant for a proclamation in support of peace for all humanity and anti-Islamophobia; and

2. From Council Member Pierson for a proclamation anti-Islamophobia, and to encourage peace in the Middle East and U.S.

F. CONSENT CALENDAR
All matters listed on the consent calendar are considered routine in nature and will be enacted by one motion. If discussion is required, that particular item will be removed from the consent calendar and will be considered separately.

F.1 Minutes of the City Council/Successor Agency meeting of November 14, 2023 F.2 Notification of the correction of a clerical error in the Solid Waste utility rate schedule.

Title/Recommendation
An informational report notifying the Council that City staff will correct an unintended clerical error to the rate schedule in Attachment A-1 of Resolution No. 2023-77 and file an amended solid waste rate study report.

F.3 Award of Contract for Homecoming Park Playground Replacement Title/Recommendation
Staff recommends Council adopt a Resolution 1) approving the purchase and installation of playground equipment for Homecoming Park, and authorizing the City Manager or designee to execute a contract, and necessary documents, in the amount of $287,036.18, plus funding authorization for a 10% contingency amount of $28,703.62, for a total funding authorization not to exceed amount of $315,739.80 with Landscape Structures, Inc. through a Sourcewell Cooperative Purchasing Agreement for Homecoming Park Playground Replacement, CIP Project No. 352-52447; 2) amending the 2023/24 – 2027/28 Capital Improvement Program (CIP); and 3) amending the 2023/24 Operating Budget for the associated project funding transfer.

F.4 Agreement with Axon Enterprises for Police Department Equipment and Services and amending the Operating Budget
Title/Recommendation
Staff recommends City Council authorize the City Manager or designee to execute an agreement and necessary documents with Axon Enterprises, Inc. in the amount of $1,820,470, plus funding authorization for an additional $150,000 for contingencies, for a total not-to-exceed funding authorization amount of $1,970,470 over a five year term for the purchase and installation of body-worn cameras, in-car video systems, electronic control devices, interview room video and audio equipment, digital evidence storage, unmanned aerial vehicles, and future innovative technologies; and amending the FY 2023/24 General Fund Operating Budget in the amount of $74,830.

F.5 Second Reading of Ordinance No. 1065 amending provisions of the Brentwood Municipal Code related to administrative citations and appeal procedures.

Title/Recommendation
Staff recommends that the City Council waive the second reading and adopt Ordinance No. 1065 amending provisions of the Brentwood Municipal Code to update outdated chapter and section numbering references; revise Section 1.12.010 (Hearing Officer); revise, in its entirety, Chapter 1.24 (Administrative Citations); and make findings that these actions are exempt from the California Environmental Quality Act based on sections 15061 and 15358 of the Act’s Guidelines.

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F.6 Purchase of twelve replacement and two new Ford vehicles.

Title/Recommendation
Staff recommends the adoption of a Resolution:

1. approving the purchase of 14 vehicles (two new and twelve replacements): 7 Ford F250 trucks (3 for the Parks & Recreation Department, 3 for the Public Works Department, and 1 for the Police Department); 5 Ford F350 trucks for the Public Works Department; and 2 Ford F550 trucks for the Public Works Department, from Bill Brandt Ford in Brentwood, CA;

2. amending the General Fund Street Division 2023/24 Operating Budget in the amount of $46,531;

3. amending the General Fund Parks Landscape Operations 2023/24 Operating Budget in the amount of $31,714;

4. amending the Vehicle and Equipment Replacement Fund 2023/24 Operating Budget in the amount of $309,325; and

5. authorizing the City Manager or designee to execute any necessary documents in an amount not to exceed $1,321,420 for fiscal year 2023/24 for the purchase of these vehicles.

F.7 2022-23 Development Impact Fee Report
Title/Recommendation
The Development Impact Fee Report ensures compliance with California Government Code Section 66006(b) and 66001(d), which requires an annual report providing specific information about those fees, be prepared and made available to the public. Staff recommends City Council receive and file the 2022-23 Development Impact Fee Report.

F.8 Supplement to the Annual Report on the Low and Moderate Income Housing Fund for Fiscal Year 2022/23.

Title/Recommendation
The Supplement to the Annual Report on the Low and Moderate Income Housing Fund ensures compliance with Senate Bill 341 requirements for Housing Successors and will be submitted to the Department of Housing and Community Development (HCD) as an addendum to the Annual Progress Report that will be prepared in Spring 2024. Staff recommends that the City Council receive and file the Supplement to the Annual Report on the Low and Moderate Income Housing Fund for Fiscal Year 2022/23. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB341 F.9 Combined Community Facilities District (CFD) Annual Report for Special Taxes Levied for Fiscal Year 2022/23
Title/Recommendation
The Combined Community Facilities District (CFD) Annual Report for Special Taxes Levied ensures compliance with Section 50075.3 of the California Government Code which requires an annual report be filed with the Legislative body for voter approved special taxes. Staff recommends City Council receive and file the Combined Community Facilities District Annual Report for Special Taxes Levied for Fiscal Year 2022/23.

F.10 Contract Change Order No. 2 with B and D Excavation and Construction for the Sound Wall, CIP Project No. 337-37263.

Title/Recommendation
The City Council may consider adopting a Resolution: 1) approving Contract Change Order No. 2 with B and D Excavation and Construction (“B and D”) for the Sound Wall, CIP Project No. 337-37263 (“Project”), in the amount of $15,211.63, bringing the Contract price to $393,811.62; and 2) increasing the funding authorization contingency amount for the Project by $5,000, for an overall total funding authorization not to exceed amount of $455,601.63 for the Project.

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G. BUSINESS ITEMS
Persons addressing the City Council using Zoom are asked to raise their hands using the Zoom feature. Those attending in person and wishing to address the Council may do so from the podium. The Council may adopt reasonable regulations at the onset of each business item to facilitate public testimony. These regulations may include time limits. In the absence of such regulations, the item shall follow the protocol for Public Comments. Public comment on each of the following items is limited to what is described in the specific agenda item.

G.1 Independent Auditors’ Report and Annual Comprehensive Financial Report for Fiscal Year 2022/23; and Report on the Financial Awards received by the City Title/Recommendation
Independent Auditors’ Report and Annual Comprehensive Financial Report for Fiscal Year 2022/23; and Report on the Financial Awards received by the City.

Staff recommends the City Council receive the Independent Auditors’ Report and Annual Comprehensive Financial Report for Fiscal Year 2022/23 and the report on the Financial Awards received by the City.

G.2 Selection of Planning Commission candidates to be interviewed and a review of the current applicant interview process
Title/Recommendation
That the City Council select candidates to interview for the two (2) vacant seats on the Planning Commission and review the current applicant interview process for consideration in selecting applicants for the Planning Commission.

G.3 A Resolution Appointing Katherine Wisinski as Interim City Attorney Title/Recommendation
To ensure the City has dedicated internal legal services, the proposed action adopts a Resolution appointing Katherine Wisinski as Interim City Attorney; it also authorizes a temporary five percent (5%) salary increase for her services as Interim City Attorney.

G.4 City Council committees and committee assignments for 2024; and dissolution of committees.

Title/Recommendation
Staff recommends that the City Council 1) review the City Council committees, assignments and descriptions for 2024, and approve, by motion, the committees, appointments and descriptions of the committees; and 2) dissolve the Brentwood Neighborhood Committee and State Route 4 Committee.

G.5 Amending City Council/Administrative Policy 110-04 Procedures for Ceremonial Documents related to the process for Proclamations
Title/Recommendation
Adopt a Resolution amending City Council/Administrative Policy 110-04 Procedures for Ceremonial Documents related to the process for Proclamations H. REQUEST FOR FUTURE AGENDA ITEMS - NEW REQUESTS
Council Members wishing to have an agenda item placed on a future agenda shall make a request under this section of the agenda. These items will be included on the agenda for the next Council meeting
I. PRESENTATIONS
I.1 Recognition of City Attorney, Damien Brower, upon the occasion of his retirement.

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J. ADJOURNMENT
Any disclosable public records related to an agenda item for the open session of this meeting distributed to all or a majority of the City Council less than 72 hours before this meeting is available for inspection at City Hall, located at 150 City Park Way, during normal business hours.

These writings will also be available for review at the City Council meeting in the public access binder in the entrance of the City Council Chambers.

Public comments received after 3:00 p.m. of the meeting date, but prior to the start of the meeting, will be emailed to the City Council, posted online at www.brentwoodca.gov/councilmeetingonline within one day following the meeting, and will be summarized in the meeting minutes.

The Closed Captioning provided via Zoom is auto generated. It is not the official record and is provided as a convenience.

NOTICE
In compliance with the Americans with Disabilities Act, the meeting room is wheelchair accessible and disabled parking is available at the City Hall parking lot. If you are a person with a disability and you need disability-related modifications or accommodations to participate in this meeting, please contact the City Clerk's Office at (925) 516-5440 or fax (925) 516-5441. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. {28 CFR 35.102-35, 104 ADA Title II}

POSTING STATEMENT
On December 7, 2023, a true and correct copy of this agenda was posted on the City Hall Bulletin Board, outside City Hall, 150 City Park Way, Brentwood, CA 94513 and at our website www.brentwoodca.gov
A complete packet of information is available for public review at City Hall or on our website at www.brentwoodca.gov

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CITY COUNCIL AGENDA ITEM NO. E.1
12/12/2023
SUBJECT: Consider Requests from Vice Mayor Meyer and Council Member Mendoza related to traffic safety enhancements in the Trilogy subdivision.

DEPARTMENT: City Manager’s Office
STAFF: Tim Ogden, City Manager
Margaret Wimberly, City Clerk

TITLE/RECOMMENDATION
That the City Council consider and discuss the future agenda item requests 1) From Vice Mayor Meyer for continued discussion related to traffic safety mitigation measures for the Trilogy subdivision; and
2) From Council Member Mendoza for an update on traffic solutions being implemented related to the Trilogy Subdivision.

FISCAL IMPACT
There is no fiscal impact associated with this action. However, the following traffic safety enhancements have been implemented in the past few weeks by City staff, and cost approximately $11,000 in staff time, not including materials:
 Restriping crosswalks with ladder-style designs across Vineyards Parkway at the Sacred Mountain Lane/Andalucia Lane and Trilogy Parkway/Solera Street intersections.
 Installed speed radar signs
 Additional landscape trimming near key intersections
 Flashing beacon timing adjustment
 Various Law Enforcement efforts
Staff is currently pursuing grant funding for additional rectangular rapid flashing beacons (RRFBs) which would cost approximately $16,000 for each installation and require $300 in annual maintenance.

While not justified or recommended, for reference only, a traffic signal installed in the area would cost approximately $450,000 and require $2,500 in annual maintenance.

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CITY COUNCIL AGENDA ITEM NO. E.1
12/12/2023

BACKGROUND
Pursuant to Council Policy 110-1 Rule 4.4 (b)(2), this item has been placed on the agenda so that Council may discuss it and provide further direction to staff. Pursuant to Section 4.4, Council discussion is limited to whether staff time and City resources should be spent on the item and the time period for scheduling.

Police Department
The police department conducted targeted enforcement over several days in November 2023. During this period, officers used Lidar to obtain a speed-reading from approximately 500 cars, resulting in 6 speeding citations being issued. The average speed of the vehicles captured on Lidar was 34 mph.

As part of the targeted enforcement efforts, two pedestrian crosswalk stings were conducted on different days and times, at the intersection of Vineyard Parkway and Solera Street, as well as Vineyard Parkway and St. Julien. Eight citations were issued to motorists for failing to yield to pedestrians in the crosswalk. The Police Department will continue to monitor this area and issue citations as necessary.

Engineering, Public Works, and Parks and Recreation Departments Over the past few weeks, staff across City departments coordinated and implemented enhancements on Vineyards Parkway that included the installation of speed radar signs, restriping of crosswalks, and focused landscape trimmings to reinforce speed limits and enhance visibility through the corridor.

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CITY COUNCIL AGENDA ITEM NO. E.1
12/12/2023
Speed radar signs serve a dual purpose of 1) alerting drivers of their current speed and notifying them to “slow down” if they are over the speed limit and 2) recording maximum speeds of each passing vehicle for later analysis.

Public Works crews in coordination with Engineering replaced existing crosswalks with enhanced crosswalk striping that includes a “ladder crosswalk” design across Vineyards Parkway at the intersections of Solera Street/Trilogy Parkway and Sacred Mountain Lane/Andalucia Lane. This striping configuration is recognized by nationwide traffic experts and agencies as a means to enhance visibility for both drivers and pedestrians, and improves yielding behavior.

Terracare, the City’s landscaping contractor, under the direction of Parks and Recreation, performed focused landscape trimming along Vineyards Parkway to ensure proper sight distances for both motorists and pedestrians are maintained.

Additionally, Engineering has evaluated all intersections along Vineyards Parkway and confirms proper stopping sight distance is provided. To incorporate an additional factor of safety, the evaluation considered a 45 mph stopping sight distance criteria even though the posted speed limit is 35 mph.

Lastly, Engineering staff recently applied for grant funding to install additional rectangular rapid flashing beacons (RRFBs) on Vineyards Parkway at Latour

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CITY COUNCIL AGENDA ITEM NO. E.1
12/12/2023
Ave/Zinfandel Drive, Sacred Mountain Lane/Andalucia Lane, Vintage Place, and Reserve Place/Decanter Circle.

City Policies and Prior Studies performed on Vineyards Parkway New traffic signals
The placement of traffic signals is determined based on a warrant system determined by the Manual of Uniform Traffic Control Devices (MUTCD) to see if any intersection warrants a signal or not (The manual can be accessed at the following website:
https://mutcd.fhwa.dot.gov/pdfs/2009r1r2r3/mutcd2009r1r2r3edition.pdf). The warrant system considers a number of factors such as accident history, peak hour volume, delay and other factors. None of the intersections have been found to meet a signal warrant and the intersection of Vineyards Parkway and Trilogy Parkway was recently analyzed for traffic signal for the proposed Amphitheater project. The results of the analysis has not been finalized, however staff is not anticipating that a signal warrant will be met.

Speed limit
The speed limit for streets other than residential is determined based on the California Vehicle Code. This is required in order for a police officer to use an electronic device (radar, lidar) to determine a vehicle’s speed. The current posted speed limit is 35 mph. Speed limits are set based on speed surveys. The 85th percentile of speeds surveyed, as well as other factors, are used to determine speed limits. This system is based on the theory that most drivers are reasonable and do not want to get in an accident, but do want to get to their destination as quickly as possible. Therefore, a speed at which 85 percent of people drive is typically the highest safe speed for that road.

All-Way Stop signs
Similar to the analysis conducted for a traffic signal, the City uses warrants for the placement of all-way Stop signs. These warrants look at traffic volumes, accident history, and sight distance. The intersection of Vineyards Parkway and Trilogy Parkway has been evaluated on 3 occasions, most recently in August of 2023 and the warrant was not satisfied for an all-way Stop sign.

Speed bumps
The current City policy limits the use of speed bumps or speed tables to streets with a 25 mph posted speed limit. The main reason for this policy is due to the design of the speed bump, which is intended to allow a vehicle to drive over the bump at 25 mph.

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CITY COUNCIL AGENDA ITEM NO. E.1
12/12/2023

CITY COUNCIL STRATEGIC INITIATIVE
Not Applicable.

PREVIOUS ACTION
Previous Action by the City Council is included on Attachment 1.

DATE OF NOTICE
Not Applicable.

ENVIRONMENTAL DETERMINATION
Not Applicable.

ATTACHMENT(S)

1. Previous Action (if applicable)

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ATTACHMENT “1”
Previous actions related to this agenda item that were taken by the Council are listed below. To view prior actions and materials, and Brentwood Municipal Code references in the staff report, as applicable:
 Visit www.brentwoodca.gov/meetings, and select the meeting date(s) desired to see the reference materials and videos.
 Visit www.brentwoodca.gov/municipalcode to research references to the Brentwood Municipal Code and search by the code section(s) cited.

On November 14, 2023, Vice Mayor Meyer requested a future agenda item to continue the discussion related to traffic mitigation measures, to include lengthening the timer for the flashing lights, landscaping, an incident report, placement of pedestrian flashing lights and potentially including buttons on both sides of the road, speed cameras, and the potential use of state grant traffic funding.

On November 14, 2023, Council Member Mendoza requested a future agenda item for an update from staff to provide background on the measures staff has or will be implementing.

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CITY COUNCIL AGENDA ITEM NO. E.2
12/12/2023
SUBJECT: Consider Requests from Mayor Bryant and Council Member Pierson related to forming a single proclamation from the suggestions to support peace and condemn Islamophobia
DEPARTMENT: City Manager’s Office
STAFF: Tim Ogden, City Manager
Margaret Wimberly, City Clerk

TITLE/RECOMMENDATION
That the City Council consider and discuss the requests to form a single proclamation:
1) From Mayor Bryant for a proclamation in support of peace for all humanity and anti-Islamophobia; and
2) From Council Member Pierson for a proclamation anti-Islamophobia, and to encourage peace in the Middle East and U.S.

FISCAL IMPACT
There is no fiscal impact associated with this action.

The two requests are considered here to provide consensus direction, if any, about the proposed content of a proclamation on the topic.

At the November 14, 2023, City Council meeting, Council Member Mendoza requested a future agenda item in support of a cease-fire in the Middle East. On December 4, 2023, Council Member Mendoza notified staff in writing that she was withdrawing her requested item until further notice.

CITY COUNCIL STRATEGIC INITIATIVE

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CITY COUNCIL AGENDA ITEM NO. E.2
12/12/2023
Not Applicable.

PREVIOUS ACTION
Previous Action by the City Council is included on Attachment 1.

ENVIRONMENTAL DETERMINATION
Not Applicable.

ATTACHMENT(S)

1. Previous Action

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On October 10, 2023, by Motion, the City Council adopted a Proclamation reaffirming Diversity, Equity, Inclusion, and Belonging in Brentwood.

On October 24, 2023, by Motion, the City Council adopted a Proclamation proclaiming November 12 – November 18, 2023, as United Against Hate Week.

On November 14, 2023, Mayor Bryant requested a future agenda item for a Proclamation in support of peace for all humanity and anti-Islamophobia.

On November 14, 2023, Council Member Pierson requested a future agenda for a resolution in support of anti-Islamophobia, and peace in the Middle East and the U.S.

On November 14, 2023, Council Member Mendoza requested a future agenda item in support of a cease-fire in the Middle East.

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1 CITY COUNCIL/SUCCESSOR AGENCY MINUTES
November 14, 2023, 7:00 p.m.

A. CALL TO ORDER & ROLL CALL
Mayor Bryant called the meeting to order at 7:05 p.m. and Roll Call found the following members present; Mendoza, Meyer, Pierson, Oerlemans, and Mayor Bryant.

B. PLEDGE OF ALLEGIANCE
Mayor Bryant led the Pledge of Allegiance.

C. PUBLIC COMMENTS
The following speakers spoke regarding concerns for pedestrian and traffic safety at Trilogy:

John Tomei
Dave Gilbert
Ed Lopez
Annette Rodrigues
Phil Henry
The following speakers spoke in favor of a resolution or proclamation in support of the Palestinian people and their call for a cease-fire:

Mahtop Ranjber
Mavjan Mohand
Tiara DeCord
Ilma R.

Salah E. Ebakri
Sumaya Alkatib
Ahmad
Farid Khalafalla
Tamara Afonso
Feros Kal
Mariam
Haroon Syed
Abu Bakr
Rimsha Hassan
Layne Fujean
Iyas Sartani
Halena Neyazi
Afaf Maheni

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2 Ehsaan Mohamad
Aarynn
Carlos Adrian Hurtado provided comments regarding safety at our schools.

Bernadette provided comments opposing the City taking sides of a political matter.

Danny Dohrmann provided comments regarding the open public comment period.

Rod Flohr spoke in support of a humanitarian cease-fire in Gaza.

Kevin Peltz spoke on behalf of the East County Revolution Football Club regarding the success of the recent Boofest.

Denise Duran spoke on behalf of the Brentwood Chamber of Commerce and reported on past and upcoming Chamber events.

Laura Avila provided comments that everyone should have a right to live with dignity and in peace and that no one is better than another.

Olga Vidriales provided comments opposing the City taking sides of a political matter.

Cathy Little provided comments opposing the City taking sides of a political matter.

D. INFORMATIONAL REPORTS FROM COUNCIL MEMBERS, COMMITTEES,

LIAISONS, AND STAFF
Council Member Oerlemans reported on attendance at Tri Delta Transit, Chamber mixer at Westmont of Brentwood, Treats at the Streets with the Police Activity League (PAL), Hometown Halloween, Day of the Dead Celebration, PAL board meeting, watched the Planning Commission meeting, attended a Tamale Fest meeting, and the Veterans Day Celebration.

Vice Mayor Meyer reported on attendance at a District 3 resident forum, spoke to students at Santa Clara University regarding the intersection of governance and business, attended the Day of the Dead Celebration, Cal Cities Department of League Leaders orientation, Mayors’ Conference, Hospice of the East Bay ceremony, Cal Cities Roundtable, watched the Planning Commission meeting, presented about local government in two third-grade classes, attended the Veterans Day Celebration, multiple discussions with residents of the Trilogy community, and attended the Bristow Elementary Parent Meeting.

Council Member Mendoza reported on attendance at Day of the Dead Celebration, Our Neighborhood Voices meetings, Cal Cities Latino Caucus director meeting, Mayors’ Conference, participated in the Hospice of the East Bay Tree Lighting event, East Bay Leadership Council Capital Series with Assembly Member Lori Wilson, watched Metropolitan Transportation Commission (MTC) webinar, attended Cal Cities Roundtable, Veterans Day

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3 Celebration, Downtown Coalition meeting, watched the Planning Commission meeting, and had multiple conversations with residents regarding Trilogy and what is happening in Gaza.

Council Member Pierson reported on speaking with a group of residents in District 2 on traffic concerns related to the new school and businesses coming to the district, attendance at PAL board meeting, Tamale Fest meeting, Veterans Day Celebration, delivered toys to the Brentwood Community Chest, watched the Planning Commission meeting, Farmers Market, and was appointed to serve on the Cal Cities Women’s Caucus Community Service Committee.

Mayor Bryant reported on attendance at the Veterans Day Celebration at Veterans Park, the Diwali event at City Park, Mayors’ Conference, spoke with the Liberty Water Polo team - 5x BVAL Champions, Hometown Halloween, Tri Delta Transit meeting, Airport Land Use meeting, met and spoke with residents regarding issues addressed during public comments as well as at Bristow Middle School.

City Manager Tim Ogden provided an update to the Trilogy community and information on how the City implements traffic enforcement and traffic calming devices.

E. CONSENT CALENDAR
Vice Mayor Meyer requested removal of item E.3 and E.6 from the Consent Calendar.

The Clerk read the titles for Ordinance 1062 and 1063.

Moved by: Jovita Mendoza, Council Member
Seconded by: Susannah Meyer, Vice Mayor
Adopted the Consent Calendar as recommended by staff excepting Items E.3 and E.6, which were pulled for additional discussion.

Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor
Motion Approved (5 to 0)
E.1 Minutes of the City Council/Successor Agency meeting of October 24, 2023
E.2 A Proclamation Proclaiming Saturday, November 25, 2023, as Small Business Saturday
E.3 A Proclamation Proclaiming November 12, 2023, as a day to celebrate Diwali
E.4 A Proclamation Proclaiming December 2023 as National Giving Month.

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4 E.5 An Affordable Housing Agreement between the City of Brentwood and Shea Homes for Orchard Grove (Subdivision 9535)
Adopted Resolution No. 2023-132 authorizing the City Manager to sign an Affordable Housing agreement between the City of Brentwood and Shea Homes for the Orchard Grove project (Subdivision 9535) and such other documents as may be needed to complete the transaction.

E.6 Americans with Disabilities Act Self-Evaluation and Transition Plan Update.

Moved by: Susannah Meyer, Vice Mayor
Seconded by: Pa'tanisha Pierson, Council Member
Adopted Resolution No. 2023-137 approving the City’s Americans with Disabilities Act (ADA) Self-Evaluation and Transition Plan Update (“Updated Plan”), and authorize the City of Brentwood ADA Coordinator, to develop a schedule for making the structural changes that were needed, and to monitor barrier removal implementation.

Including HR Requirements.

Adopted Resolution No. 2023-133 approving and authorizing the City Manager or designee to execute an Agreement for Civil Engineering Services (“Agreement”), and necessary documents, including Amendments, with Water Works Engineers, LLC in the amount of $986,960, plus funding authorization for a 10% contingency of $98,696, for a total funding authorization not to exceed Agreement amount of $1,085,656 for the Biosolids Dryer/Pyrolysis System (“Project”) as part of the Wastewater Treatment Plant Expansion - Phase II, CIP Project No. 592-59140.

E.8 Amendment No. 2 to the Agreement for Construction Management Services with Psomas for the Wastewater Treatment Plant Expansion.

Adopted Resolution No. 2023-134 approving and authorizing the City Manager or designee to execute Amendment No. Two to the Construction Management Services Agreement (“Agreement”), and necessary documents, including future amendments, with Psomas in the amount of $1,526,204.83, plus funding authorization for a 10% contingency of $152,620.48, for a total funding authorization not to exceed Agreement amount of $6,742,181.36 for the Wastewater

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5 Treatment Plant Expansion - Phase II, CIP Project No. 592-59140 (“Project”).

E.9 Fee Waiver for Be Exceptional for Fiscal Year 2023-2024, not to exceed $25,000
Adopted Resolution No. 2023-135 approving and authorizing the City Manager or designee to execute Amendment No. Two to the Construction Management Services Agreement (“Agreement”), and necessary documents, including future amendments, with Psomas in the amount of $1,526,204.83, plus funding authorization for a 10% contingency of $152,620.48, for a total funding authorization not to exceed Agreement amount of $6,742,181.36 for the Wastewater Treatment Plant Expansion - Phase II, CIP Project No. 592-59140 (“Project”).

E.10 Second Reading of Ordinance No. 1064, Amending the City Council Signature Policy
Waived the second reading and adopted Ordinance No. 1064 amending the City Council Signature Authority Policy (10-13) to revise the signature authority of the City Attorney for legal service and personnel investigative service agreements from $50,000 to $75,000.

E.11 An Ordinance amending provisions of the Brentwood Municipal Code related to administrative citations and appeal procedures Introduced and waived the first reading of Ordinance 1065 amending provisions of the Brentwood Municipal Code to update outdated chapter and section numbering references; revise Section 1.12.010 (Hearing Officer); revise, in its entirety, Chapter 1.24 (Administrative Citations); and make findings that these actions are exempt from the California Environmental Quality Act based on sections 15061 and 15358 of the Act’s Guidelines.

E.12 Approval of Amendment No. 4 to the Contract for Landscape Maintenance Services with Terracare Associates.

Adopted Resolution 2023-136 approving and authorizing the City Manager or designee to execute Amendment No. 4 to the Contract for Landscape Maintenance Services with Terracare Associates.

F. PUBLIC HEARINGS
F.1 Supplemental Mitigated Negative Declaration and Amended Mitigation Monitoring and Reporting Program for the Wastewater Treatment Plant Expansion – Phase II Project.

Casey Wichert, Director of Public Works, presented the item.

Following the presentation of the staff report, the Mayor opened the Public Hearing.

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6 There being no one wishing to speak, it was moved/seconded by Mendoza/Pierson to close the Public Hearing, and carried by the following vote:

Ayes (5): Council Members Mendoza, Meyer, Pierson, Orelemans, Bryant
Moved by: Pa'tanisha Pierson, Council Member
Seconded by: Jovita Mendoza, Council Member
Adopted Resolution 2023-138 adopting a Supplemental Mitigated Negative Declaration and Amended Mitigation Monitoring and Reporting Program for the Wastewater Treatment Plant Expansion – Phase II Project, CIP Project No. 592-59140.

Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor
Motion Approved (5 to 0)
F.2 Consideration of a resolution amending the Cost Allocation Plan and Schedule of City Fees to update mitigation fees implementing the East Contra Costa County HCP/NCCP
Erik Nolthenius, Planning Manager, presented the item.

Following the presentation of the staff report, the Mayor opened the Public Hearing.

There being no one wishing to speak, it was moved/seconded by Pierson/Mendoza to close the Public Hearing, and carried by the following vote:

Ayes (5): Council Members Mendoza, Meyer, Pierson, Orelemans, Bryant
Moved by: Pa'tanisha Pierson, Council Member
Seconded by: Susannah Meyer, Vice Mayor
Adopted Resolution 2023-139 amending the FY 2023/24 Cost Allocation Plan and Schedule of City Fees to update mitigation fees implementing the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan (HCP/NCCP), and repeal and replace Resolution No. 2022-56, which updated the HCP/NCCP fees on April 26, 2022.

Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor
Motion Approved (5 to 0)

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7 G. BUSINESS ITEMS
G.1 Request for Proposal for Consultant to assist with Brentwood Senior Center Operational Assessment & Citywide Recreational Customer Satisfaction Survey.

City Manager Tim Ogden presented the item.

Following the presentation of the staff report, the Mayor opened the public comment period.

There being no one wishing to speak on the item, the Mayor closed the public comment period.

Following the vote, as a point of order, Mayor Bryant spoke to the City Council's Ethics and Conduct Policy.

Moved by: Susannah Meyer, Vice Mayor
Seconded by: Pa'tanisha Pierson, Council Member
Authorized staff to issue a Request for Proposal for Consultant to assist with Brentwood Senior Center Operational Assessment & Citywide Recreational Customer Satisfaction Survey.

Ayes (4): Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor Noes (1): Jovita Mendoza, Council Member
Motion Approved (4 to 1)
G.2 Review and discussion of the actions contained within the General Plan Conservation and Open Space Element, including prioritization, implementation status, and cost
Erik Nolthenius, Planning Manager, presented the item.

Following the presentation of the staff report, the Mayor opened the public comment period.

There being no one wishing to speak on the item, the Mayor closed the public comment period.

Moved by: Pa'tanisha Pierson, Council Member
Seconded by: Susannah Meyer, Vice Mayor
The City Council, by motion, reviewed the information contained within this report and the attached table, and prioritized those actions remaining to be implemented within their respective terms, as shown below:

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8 Direction Priority
level

1. COS 4i (Webpage) – implement this
action
Next few
months

2. COS 8f (Webpage) – implement this
action

3. COS 9f (Provide a conservation page
(or similar page) on the City’s website
that provides links to resource
agencies and provides information
regarding local and regional
conservation and environmental
programs, to the extent that the City
has readily
available information, including
recycling guidance for single family
residences, businesses, and
apartments, opportunities for reuse of
materials, a description of how to
compost, and a description of
methods to reduce water use, such as
appropriate reuse and recycling of
water, water conservation measures,
and xeriscaping)

4. Update City website to include status
of ongoing improvements to
Conservation & Open Space Element
items (to the extent not specifically
listed above)

5. Add COS 4f (adopt standards for creek
setbacks and the protection of riparian
habitat along creek corridors) to
Focused Zoning Ordinance update
Community
Development
to report
back on
status and
implement
as schedule
allows and
funds are
budgeted

6. Benchmark what other cities are doing
for hillside preservation ordinances

7. Add COS 6b (develop guidelines for
remodels of potentially historic
residential structures) to ongoing
work on objective design standards

8. COS 3c (develop CEQA thresholds of
significance)

9. COS 9d (Non-potable water for
landscaping) – act on this policy

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9 Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor
Motion Approved (5 to 0)
G.3 Consideration and direction related to the cost-benefit analysis for the possible outsourcing of wastewater lateral repair work.

Casey Wichert, Director of Public Works, presented the item.

Following the presentation of the staff report, the Mayor opened the public comment period.

Rod Flohr provided comments not related to this item.

There being no one else wishing to speak in the item, Mayor Bryant closed the public comment period.

Moved by: Pa'tanisha Pierson, Council Member
Seconded by: Jovita Mendoza, Council Member
The City Council received the informal cost-benefit analysis for the possible outsourcing of new budgeted positions for the wastewater lateral repair and/or replacement work as identified in and funded by the FY 2023-24 – 2027/28 Wastewater Enterprise Rate Study and return to Council with staff needs.

Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor
Motion Approved (5 to 0)
G.4 Lease Agreement with the Downtown Brentwood Coalition (DBC) for use of the Women’s Club located at 648 2nd Street
Ricardo Noguera, Economic Development Manager, presented the item.

Following the presentation of the staff report, the Mayor opened the public comment period.

Amy Tilley, Executive Director with the Downtown Brentwood Coalition, spoke as the applicant.

Sinziana Todor spoke in favor of the item.

Peter Jacoway spoke in favor of the item.

Rod Flohr spoke in favor of the item.

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10 Denise Durant spoke in favor of the item.

There being no one else wishing to speak, the Mayor closed the public comment period.

Moved by: Jovita Mendoza, Council Member
Seconded by: Susannah Meyer, Vice Mayor
The City Council adopted Resolution 2023-140 authorizing the City Manager to sign a fifty-four (54) month lease with the Downtown Brentwood Coalition (DBC) for the city-owned property commonly referred to as the Women’s Club that is located at 648 Second Street.

The DBC will complete and pay for all necessary building and site improvements to support its administrative functions at the site.

Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Vice Mayor, Pa'tanisha Pierson, Council Member, Tony Oerlemans, Council Member, and Joel Bryant, Mayor
Motion Approved (5 to 0)
H. REQUEST FOR FUTURE AGENDA ITEMS - NEW REQUESTS
Vice Mayor Meyer requested to continue discussion regarding traffic control at Trilogy via City Council Workshop.

Mayor Bryant requested a Proclamation in support of all humanity, peace, and anti-Islamophobia.

Council Member Pierson requested a Proclamation to encourage peace in the Middle East and in the United States.

Council Member Mendoza requested a Proclamation or Resolution in support of a cease-fire.

I. ADJOURNMENT
It was moved/seconded by Meyer/Mendoza to adjourn at 11:08 p.m.

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CITY COUNCIL AGENDA ITEM NO. F.2
12/12/2023
SUBJECT: Notification of the correction of a clerical error in the Solid Waste utility rate schedule.

DEPARTMENT: Public Works
STAFF: Casey Wichert, Director of Public Works
Debra Galey, Senior Analyst, Engineering

TITLE/RECOMMENDATION
An informational report notifying the Council that City staff will correct an unintended clerical error to the rate schedule in Attachment A-1 of Resolution No. 2023-77 and file an amended solid waste rate study report.

FISCAL IMPACT
As a result of the unintended clerical error, for four months at the beginning of FY 2023/24, approximately 198 non–residential customers were charged an incorrect higher rate for recyclable non-compacted bin service. These rates will be corrected during the next billing cycle. The overcharge amount averages $35 per month per customer. Refunds to the affected customers are estimated to be $6,996/month, for a total refund to the customers of approximately $28,000 from the Solid Waste Enterprise Fund.

This correction will have no negative fiscal impact to the Solid Waste Enterprise Fund, as the correct rate for these services was included in the recently adopted five-year rate study’s revenue requirements.

BACKGROUND
SOLID WASTE RECYCLABLE NON-COMPACTED BIN SERVICE FOR NONRESIDENTIAL CUSTOMERS Following the adoption of the five-year rate study, an unintended clerical error was discovered for the recycle non-compacted bin service rates of certain non-residential customers.

Specifically, through the Solid Waste Rate Study’s cost of service analysis, it was determined that rates, as currently set for recycle non-compacted bin service, were

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CITY COUNCIL AGENDA ITEM NO. F.2
12/12/2023
adequate to cover the cost of solid waste service for this non-residential customer category, and a rate increase specifically for this portion of the solid waste service was not needed for FY 2023/24.

When the rates were transferred from the Solid Waste Rate Study into Attachment A-1 of the Solid Waste rate resolution, and into the Solid Waste Study Report, the latter of which summarizes the Study methodology and findings, the recycle noncompacted rate schedule for non-residential customers was incorrectly listed, and included an increase from the FY 2022/23 rates. All other bin service rates were listed correctly.

The following table shows the rates from the original Attachment A-1 to Resolution 2023-77 with the incorrectly listed rates highlighted.

SOLID WASTE SCHEDULED SERVICES

PROPOSED RATES PER MONTH
July 1, 2023
COMMERCIAL FRONT-LOAD BIN SERVICE 1Yard = two 96 Gal Carts Fiscal Year 2023-24 Adjustment 0.0%
Fiscal Year 2024-25 Adjustment 0.0%
Fiscal Year 2025-26 Adjustment 1.0%
Fiscal Year 2026-27 Adjustment 3.0%
Fiscal Year 2027-28 Adjustment 3.0%
Mixed Recyclables Non-Compacted Rates
Container Size
1 Yard 2 Yard 3 Yard 4 Yard 5 Yard 6 Yard 8 Yard
Service Per Week
1 76.47 171.20 256.81 384.12 480.15 576.17 851.68
2 233.16 422.61 593.81 848.46 1040.51 1232.57 1783.56
3 389.84 674.02 930.83 1312.78 1600.88 1888.95 2715.44
4 546.51 925.43 1267.83 1777.11 2161.24 2545.36 3647.34 5 703.20 1176.83 1604.85 2241.43 2721.58 3201.75 4579.22 The table below highlights the correct rates for FY 2023/24 that reflect no increase from the FY 2022/23 rates. The corrected rate will impact approximately 198 customers.

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CITY COUNCIL AGENDA ITEM NO. F.2
12/12/2023

SOLID WASTE SCHEDULED SERVICES

PROPOSED RATES PER MONTH
July 1, 2023
COMMERCIAL FRONT-LOAD BIN SERVICE 1Yard = two 96 Gal Carts Fiscal Year 2023-24 Adjustment 0.0%
Fiscal Year 2024-25 Adjustment 0.0%
Fiscal Year 2025-26 Adjustment 1.0%
Fiscal Year 2026-27 Adjustment 3.0%
Fiscal Year 2027-28 Adjustment 3.0%
Mixed Recyclables Non-Compacted Rates
Container Size
1 Yard 2 Yard 3 Yard 4 Yard 5 Yard 6 Yard 8 Yard
Service Per Week
1 72.14 161.51 242.27 362.38 452.97 543.56 803.47
2 219.96 398.69 560.20 800.43 981.61 1162.80 1682.60
3 367.77 635.87 878.14 1238.47 1510.26 1782.03 2561.74
4 515.58 873.05 1196.07 1676.52 2038.91 2401.28 3440.89 5 663.40 1110.22 1514.01 2114.56 2567.53 3020.52 4320.02

NOTICE TO CUSTOMERS
On April 21, 2023, Public Hearing Notices were sent to all property owners and customers of the parcels served by the City’s Water, Wastewater and Solid Waste utilities. In the Notice, the Solid Waste Recycle Non-compacted Bin Service increase was correctly listed as 0% for FY 2023/24, though the individual listed rates were incorrectly shown. The correct solid waste rates for recycle non-compacted bin service are lower than what was listed in the Proposition 218 required Notice provided to all utility customers and property owners. As such, additional Proposition 218 Notice of the correction is not required. In accordance with applicable City policy, solid waste customers impacted by this error will receive a full refund for the extra moneys paid for services provided from July 2023 to November 2023.

CORRECTIONS TO RESOLUTION 2023-177 AND SOLID WASTE RATE STUDY REPORT
To accurately reflect solid waste rates adopted by the City Council and to correct the error in the resolution, the City Clerk will be replacing Attachment A-1 to Resolution 2023-177, and replacing the Solid Waste Rate Study Report, which now includes a corrected list of fees for Recyclable Non-Compacted Bin Service for non-residential

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CITY COUNCIL AGENDA ITEM NO. F.2
12/12/2023
customers. A memo explaining the error and revision will also be filed with the revised Resolution and the revised Solid Waste Rate Study Report.

CITY COUNCIL STRATEGIC INITIATIVE
Focus Area 1 Public Works, Goal 2c, “Ensure fiscal sustainability by conducting rates studies”.

PREVIOUS ACTION
Previous Action by the City Council is included on Attachment 1.

ATTACHMENT(S)

1. Previous Action

2. File Memo

3. Amended Attachment A-1 to Resolution 2023-77

4. Amended Solid Waste Rate Study

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PREVIOUS ACTION
Previous actions related to this agenda item that were taken by the Council are listed below. To view prior actions and materials, and Brentwood Municipal Code references in the staff report, as applicable:
 Visit www.brentwoodca.gov/meetings, and select the meeting date(s) desired to see the reference materials and videos.
 Visit www.brentwoodca.gov/municipalcode to research references to the Brentwood Municipal Code and search by the code section(s) cited.

On August 9, 2022, City Council adopted Resolution No. 2022-102, approving and authorizing the City Manager or designee to execute a Professional Service Agreement with HF&H Consultants, LLC. for a Comprehensive Solid Waste Rate and User Fee Study, in the amount of $56,780, plus a 10% contingency of $5,678 for a total not-to-exceed amount of $62,458.

On June 13, 2023, City Council adopted Resolution No. 2023-77, accepting and approving the Solid Waste Cost of Service Study and adopting rate structures for solid waste utility service for Fiscal Years 2023/24 through 2027/28 and subsequent years.

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MEMORANDUM
DATE: December 12, 2023
TO: Margaret Wimberly, City Clerk
FROM: Casey Wichert, Director of Public Works
CC: Tim Ogden, City Manager
Damien Brower, City Attorney
Kerry Breen, Director of Finance and Information Systems SUBJECT: Correction to Resolution No. 2023-177, Attachment A-1 and Solid Waste Rate Study Report
Resolution 2023-177 was adopted by the City Council on June 13, 2023. Following the adoption of the five-year rate study, an unintended clerical error was discovered for the recyclable non-compacted bin service rates of certain non-residential customers and needs to be corrected.

BACKGROUND
Through the Solid Waste Rate Study’s cost of service analysis it was determined that rates, as currently set for recycle non-compacted bin service, were adequate to cover the cost of solid waste service for this non-residential customer category, and a rate increase specifically for this portion of the solid waste service was not needed for FY 2023/24.

When the rates were transferred from the Solid Waste Rate Study into the Rate Study Report and into Attachment A-1 of the Solid Waste Rate Resolution, the recyclable non-compacted rate schedule for non-residential customers was incorrectly listed, and included an increase from the FY 2022/23 rates.

All other bin service rates were listed correctly.

The table on the next page shows the rates from the original Attachment A-1 to Resolution 2023-77, with the incorrectly listed rates highlighted.

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SOLID WASTE SCHEDULED SERVICES

PROPOSED RATES PER MONTH
July 1, 2023
COMMERCIAL FRONT-LOAD BIN SERVICE 1Yard = two 96 Gal Carts Fiscal Year 2023-24 Adjustment 0.0%
Fiscal Year 2024-25 Adjustment 0.0%
Fiscal Year 2025-26 Adjustment 1.0%
Fiscal Year 2026-27 Adjustment 3.0%
Fiscal Year 2027-28 Adjustment 3.0%
Mixed Recyclables Non-Compacted Rates
Container Size
1 Yard 2 Yard 3 Yard 4 Yard 5 Yard 6 Yard 8 Yard
Service Per Week
1 72.14 161.51 242.27 362.38 452.97 543.56 803.47
2 219.96 398.69 560.20 800.43 981.61 1162.80 1682.60
3 367.77 635.87 878.14 1238.47 1510.26 1782.03 2561.74
4 515.58 873.05 1196.07 1676.52 2038.91 2401.28 3440.89 5 663.40 1110.22 1514.01 2114.56 2567.53 3020.52 4320.02

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Waste Recyclable Non-compacted Bin Service increase was correctly listed as 0% for FY 2023/24, though the individual listed rates were incorrectly shown.

The correct solid waste rates for recyclable non-compacted bin service are lower than what was listed in the Proposition 218 required Notice provided to all utility customers and property owners. As such, additional Proposition 218 Notice of the correction is not required. In accordance with applicable City policy, solid waste customers impacted by this error will receive a full refund for the extra moneys paid for services provided from July 2023 to November 2023.

CORRECTIONS TO RESOLUTION NO. 2023-177 AND SOLID WASTE RATE STUDY REPORT At their meeting of December 12, 2023, the City Council will be notified of this unintended error.

Following that meeting, and to accurately reflect the solid waste rates adopted by the City Council, please replace Attachment A-1 to Resolution 2023-177, with the attached corrected Attachment A-1, and replace the Solid Waste Rate Study Report with the attached corrected version. In addition, please include a copy of this memo with Resolution No. 2023-177 and the Rate Study Report. This matter was reviewed by the City Attorney and outside legal counsel, and they concur with this course of action.

Please contact me should you have any questions. Thank you for your assistance with these matters.

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RESOLUTION 2023-177 EXHIBIT “A-1”

SOLID WASTE (GARBAGE) SCHEDULED SERVICES
Rates may be further adjusted in the event that costs that are not within the City’s control, such as hauling and disposal costs, electrical costs, chemical costs etc., exceed the amount projected. The additional costs may be recovered through the rates at the actual cost paid by the City.

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CITY COUNCIL AGENDA ITEM NO. F.3
12/12/2023
SUBJECT: Award of Contract for Homecoming Park Playground Replacement DEPARTMENT: Parks and Recreation
STAFF: Aaron Wanden, Parks Maintenance Manager
Brian Johnson, Park Maintenance Supervisor
Elaine McGurk, Project Services Specialist

TITLE/RECOMMENDATION
Staff recommends Council adopt a Resolution 1) approving the purchase and installation of playground equipment for Homecoming Park, and authorizing the City Manager or designee to execute a contract, and necessary documents, in the amount of $287,036.18, plus funding authorization for a 10% contingency amount of $28,703.62, for a total funding authorization not to exceed amount of $315,739.80 with Landscape Structures, Inc. through a Sourcewell Cooperative Purchasing Agreement for Homecoming Park Playground Replacement, CIP Project No. 352- 52447; 2) amending the 2023/24 – 2027/28 Capital Improvement Program (CIP); and 3) amending the 2023/24 Operating Budget for the associated project funding transfer.

FISCAL IMPACT
Funding for the Homecoming Park Playground Replacement, CIP Project No. 352- 52447 (“Project”), is currently included in the amended 2023/24 – 2027/28 Capital Improvement Program with an approved budget of $275,000. Award of this contract with Landscape Structures, Inc. will be in the amount of $287,036.18 plus funding authorization for a 10% contingency amount of $28,703.62, for a total funding authorization not to exceed amount of $315,739.80.

Staff recommends amending the 2023/24 – 2027/28 Capital Improvement Program to include a revised Project budget in the amount of $327,240 to account for the increased construction costs plus an additional $11,500 for unanticipated costs that may come up (i.e., permits, rental equipment, concrete disposal). Staff also recommends amending the 2023/24 Operating Budget to allow for additional funding transfer in the amount of $52,240 from the Parks and LLAD Replacement Fund.

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CITY COUNCIL AGENDA ITEM NO. F.3
12/12/2023
The Citywide Parks portion of the Parks and LLAD Replacement Fund, which this replacement would be sourced from, has a projected 6/30/24 balance of $7.6 million.

CIP budget sheet Project funding and expenditure changes being recommended in this action are as follows:

Project Expenditures Original
Budget
2023/24
Amended Budget
Difference
Legal $1,000 $1,000 0
Planning and Design $500 $500 0
Construction $273,500 $325,740 $52,240
Total Project Budget $275,000 $327,240 $52,240
Project Funding Original
Budget
2023/24
Amended Budget
Difference
Replacement – Parks &
LLAD
$275,000 $327,240 $52,240
Total Project Budget $275,000 $327,240 $52,240
This Project is funded through the Parks and Lighting and Lighting Assessment District (LLAD) Replacement fund.

BACKGROUND
The Parks and Recreation Department established the Parks Play Equipment Replacement Project, CIP Project No. 352-52410, as the need was identified to replace aging play equipment. This CIP number applied to all previous play equipment replacement projects, including Apple Hill Park, McClarren Park, and Summerwood Park. In Fiscal Year 2012/13, the CIP was revised to address specific parks, with site specific CIP numbers. The Homecoming Park Playground Replacement Project has been assigned CIP Project Number 352-52447. The approved budget for this playground replacement is $275,000.

Homecoming Park was constructed in 1999 and includes two bays, an area with swings and the main playground area. The main playground footprint includes play equipment for groups ages 2–5 and 5–12 years. At this time, staff is only requesting for the main playground area to be replaced.

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CITY COUNCIL AGENDA ITEM NO. F.3
12/12/2023
The projected replacement is based on the industry standard 15-20 years warranty period and life expectancy for play structures of this type. The structures are showing signs of excessive wear and tear on the features, as well as color fade due to age and exposure to the elements.

On September 8, 2023, Parks and Recreation staff members, along with Park Playground Ad-Hoc Subcommittee members Commissioners Blythe Lind and Norm Cohen, reviewed the initial conceptual designs submitted by three separate vendors that included Park Planet (Playcraft), Landscape Structures, Inc. (LSI), and PlaySpec.

After reviewing various renditions provided by each of the three vendors, LSI was able to provide the most challenging and unique conceptual designs for the play structures as requested. Each element included was carefully selected to ensure it was inclusive and beneficial for all children. Following feedback from staff and the Subcommittee, the vendor fine-tuned the conceptual plans to include two rubberized surfacing paths on each side of the bay and shortening the length of all beams to be uniform. Included with this report are documents provided by LSI that give further details into the all-inclusive designs.

The final conceptual plans were presented to the Park and Recreation Commission at their meeting on Thursday, September 28, 2023. The Park and Recreation Commission unanimously agreed on the Project design and to make the recommendation to the City Council to approve the concept plan.

It is the Park and Recreation Commission’s recommendation to purchase the playground apparatus from LSI to move forward with the Project. Estimated delivery of the play equipment from the manufacturer is 24 – 28 weeks from the date of order.

The estimated time for completion of this Project is late Summer 2024.

CITY COUNCIL STRATEGIC INITIATIVE
No applicable.

PREVIOUS ACTION
Attachment 1.

DATE OF NOTICE
Not applicable.

ENVIRONMENTAL DETERMINATION

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CITY COUNCIL AGENDA ITEM NO. F.3
12/12/2023
Not applicable.

ATTACHMENT(S)

1. Previous Action

2. Resolution

3. Contract

4. Concept Plans

5. Ages 2 – 5 Development Benefits

6. Ages 5 - 12 Development Benefits

7. CIP Sheet

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On June 3, 2023, by Resolution 2023-80, City Council adopted the 2023/24 – 2027/28 Capital Improvement (CIP) which includes the Homecoming Park Playground Replacement Project, CIP Project No. 352-52447(the “Project”).

On June 3, 2023, by Resolution 2023-80, City Council adopted the amended 2023/24 Operating Budget.

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RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD 1)

APPROVING THE PURCHASE AND INSTALLATION OF PLAYGROUND

EQUIPMENT FOR HOMECOMING PARK, AND AUTHORIZING THE CITY

MANAGER OR DESIGNEE TO EXECUTE A CONTRACT, AND NECESSARY DOCUMENTS, IN THE AMOUNT OF $287,036.18 PLUS FUNDING
AUTHORIZATION FOR A 10% CONTINGENCY AMOUNT OF $28,703.62, FOR A TOTAL FUNDING AUTHORIZATION NOT TO EXCEED AMOUNT OF $315,739.80 WITH LANDSCAPE STRUCTURES, INC. THROUGH A SOURCEWELL

COOPERATIVE PURCHASING AGREEMENT FOR HOMECOMING PARK
PLAYGROUND REPLACEMENT, CIP PROJECT NO. 352-52447; 2) AMENDING THE 2023/24 – 2027/28 CAPITAL IMPROVEMENT PROGRAM (CIP); AND 3) AMENDING THE 2023/24 OPERATING BUDGET FOR THE ASSOCIATED PROJECT FUNDING TRANSFER.

WHEREAS, on June 3, 2023, by Resolution 2023-80, City Council adopted the amended 2023/24 – 2027/28 Capital Improvement Program (CIP) which includes the Homecoming Park Playground Replacement Project, CIP Project No. 352-52447(the “Project”); and WHEREAS, on June 3, 2023, by Resolution 2023-80, City Council adopted the amended 2023/24 Operating Budget; and
WHEREAS, in 1999 Homecoming Park was constructed and included two bays with the main playground footprint including play equipment for groups ages 2-5 and 5-12, and this project replacement is based on the industry standards of 15-20 years warranty period and life expectancy for play structures of this type; and
WHEREAS, staff solicited for bids on July 12, 2023, and three (3) concept plans with quotes were received on August 25, 2023; and
WHEREAS, on September 8, 2023, Parks and Recreation staff members met with the Park Playground Ad-Hoc Subcommittee members Commissioners Cohen and Lind to review the initial conceptual designs submitted by three separate vendors and included Park Planet (Playcraft), Landscape Structures, Inc., and Playspec; and
WHEREAS, the Ad-Hoc Subcommittee members selected the Landscape Structures, Inc. conceptual design and requested a few revisions that included two rubberized surfacing paths on each side of the bay and shorter beams on the play structures; and WHEREAS, on September 28, 2023, the Park and Recreation Commission approved the revised conceptual plans that included two rubberized surfacing paths on each side of the bay and shorter beams on play structures; and
WHEREAS, staff recommends amending the 2023/24 – 2027/28 Capital Improvement Program to include a revised Project budget in the amount of $327,240 to account for the increased construction costs, plus an additional $11,500 for unanticipated costs that may come up (i.e., permits, rental equipment, concrete disposal). Staff also recommends amending the 2023/24 Operating Budget to allow for the additional funding; and

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NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood hereby 1) approves the purchase and installation of playground equipment for Homecoming Park, and authorizes the City Manager or designee to execute a contract, and necessary documents, in the amount of $287,036.18 plus a 10% contingency amount of $28,703.62 for additional services, for a total funding authorization not to exceed amount of $315,739.80 with Landscape Structures, Inc. through a Sourcewell Cooperative Purchasing Agreement, for Homecoming Park Playground Replacement, CIP Project No. 352-52447; 2) amends the 2023/24 – 2027/28 Capital Improvement Program to include the revised Project budget; and 3) amends the 2023/24 Operating Budget for the associated project funding transfer of $52,240 from the Parks and LLAD Replacement Fund.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on December 12, 2023 by the following vote:

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Homecoming Park Playground Replacement PART C - CONTRACT CIP Project No. 352-52447 2021 Form

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CONTRACT
This public works contract (“Contract”) is entered into by and between the City of Brentwood (“City”) and Landscape Structures, Inc., a corporation headquartered in Minnesota (“Contractor”), for work on the Homecoming Park Playground Replacement Project, CIP Project No. 352-52447 (“Project”).

RECITALS
A. On November 10, 2020, the Cooperative Purchasing Program of Sourcewell (“Sourcewell”) issued an invitation for proposals for furnishing certain playground systems, installation, service and related items to be available for procurement under the same terms for local government and non-profit member organizations (“Sourcewell Invitation”).

B. Pursuant to the Sourcewell Invitation, Contractor and Sourcewell entered into a contract, effective February 15, 2021 (“Cooperative Agreement”), wherein Contractor agreed to furnish and install certain parks and recreation equipment to participating governmental agencies for the prices set forth in and pursuant to the terms and conditions of the Cooperative Agreement.

C. The City of Brentwood requested a price quote from Contractor for providing and installing certain playground equipment and related materials for the Project.

D. Contractor submitted a price quote to City (identified as No. 42127), dated September 27, 2023 (“Quote”), offering to sell and install the equipment and related materials for the Project.

E. The total amount of the Quote is $287,036.18, including labor, materials, shipping, and taxes.

F. The Quote attaches and includes a three-page detailed list of items to be provided (separately identified as Quote No: 42127), and nine pages with images depicting the play equipment components.

AGREEMENT
The parties agree as follows:

1. Award of Contract. Contractor has submitted a Quote in accordance with the Cooperative Agreement to construct the Project. On December 12, 2023, the Brentwood City Council authorized award of this Contract to Contractor based on the Quote for the amount set forth in Section 4, below.

2. Contract Documents. The Contract Documents incorporated into this Contract include and are comprised of all of the documents listed below. The definitions provided in Article 1 of the General Conditions apply to all of the Contract Documents, including this Contract.

2.1 Contract;

2.2 Payment and Performance Bonds;

2.3 General Conditions;

2.4 Quote (and attachments thereto)

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Homecoming Park Playground Replacement PART C - CONTRACT CIP Project No. 352-52447 2021 Form

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2.5 Cooperative Agreement;

2.6 Change Orders, if any;

2.7 Notice of Award;

2.8 Notice to Proceed

3. Contractor’s Obligations. Contractor will perform all of the Work required for the Project, as specified in the Contract Documents. Contractor must provide, furnish, and supply all things necessary and incidental for the timely performance and completion of the Work, including all necessary labor, materials, supplies, tools, equipment, transportation, onsite facilities, and utilities, unless otherwise specified in the Contract Documents. Contractor must use its best efforts to diligently prosecute and complete the Work in a professional and expeditious manner and to meet or exceed the performance standards required by the Contract Documents.

4. Payment. As full and complete compensation for Contractor’s timely performance and completion of the Work in strict accordance with the terms and conditions of the Contract Documents, City will pay Contractor $287,036.18 (“Contract Price”) for all of Contractor’s direct and indirect costs to perform the Work, including all labor, materials, supplies, equipment, taxes, insurance, bonds and all overhead costs, in accordance with the payment provisions in the General Conditions.

5. Time for Completion. Contractor will fully complete the Work for the Project, meeting all requirements for a Final Completion date of June 30, 2024 (“Contract Time”). By signing below, Contractor expressly waives any claim for delayed early completion.

6. Liquidated Damages. If Contractor fails to complete the Work within the Contract Time, City will assess liquidated damages in the amount of $500 per day for each day of unexcused delay in achieving Final Completion, and such liquidated damages may be deducted from City’s payments due or to become due to Contractor under this Contract.

7. Labor Code Compliance.

7.1 General. This Contract is subject to all applicable requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code, including requirements pertaining to wages, working hours and workers’ compensation insurance, as further specified in Article 9 of the General Conditions.

7.2 Prevailing Wages. This Project is subject to the prevailing wage requirements applicable to the locality in which the Work is to be performed for each craft, classification or type of worker needed to perform the Work, including employer payments for health and welfare, pension, vacation, apprenticeship and similar purposes. Copies of these prevailing rates are available online at http://www.dir.ca.gov/DLSR.

7.3 DIR Registration. City may not enter into the Contract with a bidder without proof that the bidder and its Subcontractors are registered with the California Department of Industrial Relations to perform public work pursuant to Labor Code § 1725.5, subject to limited legal exceptions.

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Homecoming Park Playground Replacement PART C - CONTRACT CIP Project No. 352-52447 2021 Form

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8. Workers’ Compensation Certification. Pursuant to Labor Code § 1861, by signing this Contract, Contractor certifies as follows: “I am aware of the provisions of Labor Code § 3700 which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work on this Contract.”

9. Conflicts of Interest. Contractor, its employees, Subcontractors and agents, may not have, maintain or acquire a conflict of interest in relation to this Contract in violation of any City ordinance or requirement, or in violation of any California law, including Government Code § 1090 et seq., or the Political Reform Act, as set forth in Government Code § 81000 et seq. and its accompanying regulations. Any violation of this Section constitutes a material breach of the Contract.

10. Independent Contractor. Contractor is an independent contractor under this Contract and will have control of the Work and the means and methods by which it is performed. Contractor and its Subcontractors are not employees of City and are not entitled to participate in any health, retirement, or any other employee benefits from City.

11. Notice. Any notice, billing, or payment required by or pursuant to the Contract Documents must be made in writing, signed, dated and sent to the other party by personal delivery, U.S.

Mail, a reliable overnight delivery service, or by email as a PDF file. Notice is deemed effective upon delivery, except that service by U.S. Mail is deemed effective on the second working day after deposit for delivery. Notice for each party must be given as follows:

City of Brentwood Contractor
Name/Title Brian Johnson, Project Manager Jon Bawden
Address 150 City Park Way 601 7th Street South
City/state/zip Brentwood/CA 94513 Delano, MN 55328
Phone 925-516-5444 707-736-6890
Fax 925-516-5447
Email [email protected] [email protected]

12. General Provisions.

12.1 Assignment and Successors. Contractor may not assign its rights or obligations under this Contract, in part or in whole, without City’s written consent. This Contract is binding on Contractor’s and City’s lawful heirs, successors and permitted assigns.

12.2 Third Party Beneficiaries. There are no intended third party beneficiaries to this Contract.

12.3 Governing Law and Venue. This Contract will be governed by California law and venue will be in the Contra Costa County Superior Court, and no other place.

Contractor waives any right it may have pursuant to Code of Civil Procedure § 394, to file a motion to transfer any action arising from or relating to this Contract to a venue outside of Contra Costa County, California.

12.4 Amendment. No amendment or modification of this Contract will be binding unless it is in a writing duly authorized and signed by the parties to this Contract.

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12.5 Integration. This Contract and the Contract Documents incorporated herein, including authorized amendments or Change Orders thereto, constitute the final, complete, and exclusive terms of the agreement between City and Contractor.

12.6 Severability. If any provision of the Contract Documents is determined to be illegal, invalid, or unenforceable, in whole or in part, the remaining provisions of the Contract Documents will remain in full force and effect.

12.7 Iran Contracting Act. If the Contract Price exceeds $1,000,000, Contractor certifies, by signing below, that it is not identified on a list created under the Iran Contracting Act, Public Contract Code § 2200 et seq. (the “Act”), as a person engaging in investment activities in Iran, as defined in the Act, or is otherwise expressly exempt under the Act.

12.8 Authorization. Each individual signing below warrants that he or she is authorized to do so by the party that he or she represents, and that this Contract is legally binding on that party. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporation Code § 313.

Alternatively, the Contractor may attach a resolution of the corporation, certified by the secretary or assistant secretary under corporate seal, empowering the officer(s) signing the Contract to bind the corporation.

The parties agree to this Contract as witnessed by the signatures below:

CONTRACTOR:
* By:

Pat Faust, President
** By:

Fred Caslavka, CFO

CITY OF BRENTWOOD:

By:

Tim Y. Ogden, City Manager
ATTEST:

By:

Margaret Wimberly, MMC, City Clerk
APPROVED AS TO FORM:

By:

Damien Brower, City Attorney
If required by City, a notarized acknowledgment of execution by Contractor must be attached. If a Contractor is a corporation, Contract must be signed by one corporate officer from each of the following two groups. *Group A. **Group B.

Chairman, Secretary,
President, or Assistant Secretary,
Vice-President CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.

END OF CONTRACT

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Homecoming Park Playground Replacement PART C – PAYMENT BOND CIP Project No. 352-52447 City Attorney Approved Version: 01-03-20

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PAYMENT BOND
The City of Brentwood (“City”) and Landscape Structures Inc. (“Contractor”) have entered into a contract for work on the Homecoming Park Playground Replacement Project, CIP Project No. 352-52447 (“Project”). The Contract is incorporated by reference into this Payment Bond (“Bond”).

1. General. Under this Bond, Contractor as principal and ____________________________, its surety (“Surety”), are bound to City as obligee in an amount not less than $287,036.18, under California Civil Code § 9550 et seq., to ensure payment to authorized claimants. This Bond is binding on the respective successors, assigns, owners, heirs, or executors of Surety and Contractor.

2. Surety’s Obligation. If Contractor or any of its Subcontractors fails to pay a person authorized in California Civil Code § 9100 to assert a claim against a payment bond, any amounts due under the Unemployment Insurance Code with respect to work or labor performed under the Contract, or any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of Contractor and its Subcontractors under California Unemployment Insurance Code § 13020 with respect to the work and labor, then Surety will pay the obligation.

3. Beneficiaries. This Bond inures to the benefit of any of the persons named in California Civil Code § 9100, so as to give a right of action to those persons or their assigns in any suit brought upon this Bond. Contractor must promptly provide a copy of this Bond upon request by any person with legal rights under this Bond.

4. Duration. If Contractor promptly makes payment of all sums for all labor, materials, and equipment furnished for use in the performance of the Work required by the Contract, in conformance with the time requirements set forth in the Contract and as required by California law, Surety’s obligations under this Bond will be null and void.

Otherwise, Surety’s obligations will remain in full force and effect.

5. Waivers. Surety waives any requirement to be notified of alterations to the Contract or extensions of time for performance of the Work under the Contract. Surety waives the provisions of Civil Code §§ 2819 and 2845. City waives the requirement of a new bond for any supplemental contract under Civil Code § 9550. Any notice to Surety may be given in the manner specified in the Contract and delivered or transmitted to Surety as follows:

Attn: ________________________________________________
Address: ____________________________________________
City/State/Zip: ________________________________________ Phone: ______________________________________________
Email: ______________________________________________

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Homecoming Park Playground Replacement PART C – PAYMENT BOND CIP Project No. 352-52447 City Attorney Approved Version: 01-03-20

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6. Law and Venue. This Bond will be governed by California law, and venue for any dispute pursuant to this Bond will be in the Contra Costa County Superior Court, and no other place. Surety will be responsible for City’s attorneys’ fees and costs in any action to enforce the provisions of this Bond.

7. Effective Date; Execution. This Bond is entered into and is effective on __________, 20__.

SURETY:
___________________________________
Business Name
s/__________________________________ _______________________ Date
___________________________________
Name, Title
(Attach Acknowledgment with Notary Seal and Power of Attorney) CONTRACTOR:
___________________________________
Landscape Structures Inc.
s/__________________________________ _______________________ Date
___________________________________
Name, Title
APPROVED BY CITY:

City of Brentwood
s/
Tim Y. Ogden, City Manager

END OF PAYMENT BOND

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Homecoming Park Playground Replacement PART C – PERFORMANCE BOND CIP Project No. 352-52447 City Attorney Approved Version: 01-30-19

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PERFORMANCE BOND
The City of Brentwood (“City”) and Landscape Structures Inc. (“Contractor”) have entered into a contract for work on the Homecoming Park Playground Replacement Project, CIP Project No. 352-52447 (“Project”). The Contract is incorporated by reference into this Performance Bond (“Bond”).

1. General. Under this Bond, Contractor as Principal and ___________________________, its surety (“Surety”), are bound to City as obligee for an amount not less than $287,036.18 to ensure Contractor’s faithful performance of its obligations under the Contract. This Bond is binding on the respective successors, assigns, owners, heirs, or executors of Surety and Contractor.

2. Surety’s Obligations. Surety’s obligations are co-extensive with Contractor’s obligations under the Contract. If Contractor fully performs its obligations under the Contract, including its warranty obligations under the Contract, Surety’s obligations under this Bond will become null and void. Otherwise, Surety’s obligations will remain in full force and effect.

3. Waiver. Surety waives any requirement to be notified of and further consents to any alterations to the Contract made under the applicable provisions of the Contract Documents, including changes to the scope of Work or extensions of time for performance of Work under the Contract. Surety waives the provisions of Civil Code §§ 2819 and 2845.

4. Application of Contract Balance. Upon making a demand on this Bond for completion of the Work prior to acceptance of the Project, City will make the Contract Balance available to Surety for completion of the Work under the Contract. For purposes of this provision, the Contract Balance is defined as the total amount payable by City to Contractor as the Contract Price minus amounts already paid to Contractor, and minus any liquidated damages, credits, or backcharges to which City is entitled under the terms of the Contract.

5. Contractor Default. Upon written notification from City of Contractor’s termination for default under Article 13 of the Contract General Conditions, time being of the essence, Surety must act within the time specified in Article 13 to remedy the default through one of the following courses of action:

5.1 Arrange for completion of the Work under the Contract by Contractor, with City’s consent, but only if Contractor is in default solely due to its financial inability to complete the Work;

5.2 Arrange for completion of the Work under the Contract by a qualified contractor acceptable to City, and secured by performance and payment bonds issued by an admitted surety as required by the Contract Documents, at Surety’s expense; or

5.3 Waive its right to complete the Work under the Contract and reimburse City the amount of City’s costs to have the remaining Work completed.

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Homecoming Park Playground Replacement PART C – PERFORMANCE BOND CIP Project No. 352-52447 City Attorney Approved Version: 01-30-19

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6. Surety Default. If Surety defaults on its obligations under the Bond, City will be entitled to recover all costs it incurs due to Surety’s default, including legal, design professional, or delay costs.

7. Notice. Any notice to Surety may be given in the manner specified in the Contract and sent to Surety as follows:

Attn: ________________________________________________
Address: ____________________________________________
City/State/Zip: ________________________________________ Phone: ______________________________________________
Fax: ________________________________________________
Email: ______________________________________________

8. Law and Venue. This Bond will be governed by California law, and venue for any dispute pursuant to this Bond will be in the Contra Costa County Superior Court, and no other place. Surety will be responsible for City’s attorneys’ fees and costs in any action to enforce the provisions of this Bond.

9. Effective Date; Execution. This Bond is entered into and effective on ____________________, 20___.
[Signatures are on the following page.]

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Homecoming Park Playground Replacement PART C – PERFORMANCE BOND CIP Project No. 352-52447 City Attorney Approved Version: 01-30-19

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City of Brentwood
s/
Tim Y. Ogden, City Manager

END OF PERFORMANCE BOND

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Homecoming Park Playground Replacement PART D – GENERAL CONDITIONS CIP Project No. 352-52447 2021 Form

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GENERAL CONDITIONS
Article 1 - Definitions
Definitions. The following definitions apply to all of the Contract Documents unless otherwise indicated, e.g., additional definitions that apply solely to the Specifications or other technical documents. Defined terms and titles of documents are capitalized in the Contract Documents, with the exception of the following (in any tense or form): “day,” “furnish,” “including,” “install,” “work day” or “working day.” Allowance means a specific amount that must be included in the Bid Proposal for a specified purpose.

Article, as used in these General Conditions, means a numbered Article of the General Conditions, unless otherwise indicated by the context.

Brentwood Standard Plans and Specifications means the most current version, at bid time, of the City’s Standard Plans and Specifications.

Caltrans Standard Plans means the most current version, at bid time, of the Standard Plans of the California Department of Transportation.

Caltrans Standard Specifications means the version of the Standard Specifications of the California Department of Transportation specified in Section 2 of the Contract form, subject to the terms and limitations in Section 3.3 of the General Conditions.

Change Order means a written document duly approved and executed by City, which changes the scope of Work, the Contract Price, or the Contract Time.

City means the City of Brentwood, acting through its City Council, officers, employees, City Engineer, and any other authorized representatives.

City Engineer means the City Engineer and Director of Public Works for the City of Brentwood acting directly or through a duly authorized agent, which may be an employee of the City or an outside consultant.

Claim means a separate demand by Contractor for a change in the Contract Time or Contract Price, that has previously been submitted to City in accordance with the requirements of the Contract Documents, and which has been rejected by City, in whole or in part; or a written demand by Contractor objecting to the amount of Final Payment.

Contract means the signed agreement between City and Contractor for performing the Work required for the Project, and all documents expressly incorporated therein.

Contract Documents means, collectively, all of the documents listed as such in Section 2 of the Contract, including the Cooperative Agreement; the Quote, and attachments thereto; the Contract; the Notice of Award and Notice to Proceed; the Payment and Performance Bonds; the General Conditions; Cooperative Agreement; Change Orders, if any; the Notice of Award; the Notice to Proceed; and any other documents which are

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clearly and unambiguously made part of the Contract Documents. The Contract Documents do not include documents provided “For Reference Only,” or documents that are intended solely to provide information regarding existing conditions.

Contract Price means the total compensation to be paid to Contractor for performance of the Work, as set forth in the Contract and as may be amended by Change Order or adjusted for an Allowance. The Contract Price is not subject to adjustment due to inflation or due to the increased cost of labor, material, supplies or equipment following submission of the Quote.

Contract Time means the time specified for complete performance of the Work, as set forth in the Contract and as may be amended by Change Order.

Contractor means Landscape Structures, Inc..

Day means a calendar day unless otherwise specified.

Design Professional means the licensed individual(s) or firm(s) retained by City to provide architectural, engineering, or electrical engineering design services for the Project.

If no Design Professional has been retained for this Project, any reference to Design Professional is deemed to refer to the Engineer.

DIR means the California Department of Industrial Relations.

Drawings means the drawings, details, and graphic depictions included with the Quote.

Engineer means the City Engineer for the City of Brentwood and his or her authorized delegees.

Excusable Delay is defined in Section 5.3(B), Excusable Delay.

Extra Work means new or unforeseen work added to the Project, as determined by the Engineer in his or her sole discretion, including Work that was not part of or incidental to the scope of the Work when the Contractor’s bid was submitted; Work that is substantially different from the Work as described in the Contract Documents at bid time; or Work that results from a substantially differing and unforeseeable condition.

Final Completion means Contractor has fully completed all of the Work required by the Contract Documents to the City’s satisfaction, including all punch list items and any required commissioning or training, and has provided the City with all required submittals, including the instructions and manuals, product warranties, and as-built drawings.

Final Payment means payment to Contractor of the unpaid Contract Price, including release of undisputed retention, less amounts withheld or deducted pursuant to the Contract Documents.

Furnish means to purchase and deliver for the Project.

Government Code Claim means a claim submitted pursuant to California Government Code § 900 et seq.

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Hazardous Materials means any substance or material identified now or in the future as hazardous under any Laws, or any other substance or material that may be considered hazardous or otherwise subject to Laws governing handling, disposal, or cleanup.

Including, whether or not capitalized, means “including, but not limited to,” unless the context clearly requires otherwise.

Inspector means the individual(s) or firm(s) retained or employed by City to inspect the workmanship, materials, and manner of construction of the Project and its components to ensure compliance with the Contract Documents and all Laws.

Install means to fix in place for materials, and to fix in place and connect for equipment.

Laws means all applicable local, state, and federal laws, regulations, rules, codes, ordinances, permits, orders, and the like enacted or imposed by or under the auspices of any governmental entity with jurisdiction over any of the Work or any performance of the Work.

Non-Excusable Delay is defined in Section 5.3(D), Non-Excusable Delay.

Plans means the City-provided plans, drawings, details, or graphical depictions of the Project requirements, but does not include Shop Drawings.

Project means the Homecoming Park Playground Replacement Project referenced in the Contract.

Project Manager means the individual designated by City to oversee and manage the Project on City’s behalf and may include his or her authorized delegee(s) when the Project Manager is unavailable. If no Project Manager has been designated for this Project, any reference to Project Manager is deemed to refer to the Engineer.

Quote means Contractor’s price quite for the Project, dated September 27, 2023, as further described in the Contract Recitals.

Recoverable Costs is defined in Section 5.3(F), Recoverable Costs.

Request for Information or RFI means Contractor’s written request for information about the Contract Documents, the Work or the Project, submitted to City in the manner and format specified by City.

Section, when capitalized in these General Conditions, means a numbered section or subsection of the General Conditions, unless the context clearly indicates otherwise.

Shop Drawings means drawings, plan details or other graphical depictions prepared by or on behalf of Contractor, and subject to City acceptance, which are intended to provide details for fabrication, installation, and the like, of items required by or shown in the Plans or Specifications.

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Specialty Work means Work that must be performed by a specialized Subcontractor with the specified license or other special certification, and that the Contractor is not qualified to self-perform.

Specifications means the text specifications in Contractor’s Quote describing the items to be provided and installed by Contractor.

Subcontractor means an individual, partnership, corporation, or joint-venture retained by Contractor directly or indirectly through a subcontract to perform a specific portion of the Work. The term Subcontractor applies to subcontractors of all tiers, unless otherwise indicated by the context. A third party such as a utility performing related work on the Project is not a Subcontractor, even if Contractor must coordinate its Work with the third party.

Technical Specifications has the same meaning as Specifications.

Work means all of the construction and services necessary for or incidental to completing the Project in conformance with the requirements of the Contract Documents.

Work Day or Working Day, whether or not capitalized, means a weekday when the City is open for business, and does not include holidays observed by the City.

Worksite means the place or places where the Work is performed, which includes, but may extend beyond the Project site, including separate locations for staging, storage, or fabrication.

Article 2 - Roles and Responsibilities

2.1 City.
(A) City Council. The City Council has final authority in all matters affecting the Project, except to the extent it has delegated authority to the Engineer. (B) Engineer. The Engineer, acting within the authority conferred by the City Council, is responsible for administration of the Project on behalf of City, including authority to provide directions to the Design Professional and to Contractor to ensure proper and timely completion of the Project. The Engineer’s decisions are final and conclusive within the scope of his or her authority, including interpretation of the Contract Documents.
(C) Project Manager. The Project Manager assigned to the Project will be the primary point of contact for the Contractor and will serve as City’s representative for daily administration of the Project on behalf of City. Unless otherwise specified, all of Contractor’s communications to City (in any form) will go to or through the Project Manager. City reserves the right to reassign the Project Manager role at any time or to delegate duties to additional City representatives, without prior notice to or consent of Contractor.
(D) Design Professional. The Design Professional is responsible for the overall design of the Project and, to the extent authorized by City, may act on City’s

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behalf to ensure performance of the Work in compliance with the Plans and Specifications, including any design changes authorized by Change Order. The Design Professional’s duties may include review of Contractor’s submittals, visits to any Worksite, inspecting the Work, evaluating test and inspection results, and participation in Project-related meetings, including any pre-construction conference, weekly meetings, and coordination meetings. The Design Professional’s interpretation of the Plans or Specifications is final and conclusive.

2.2 Contractor.
(A) General. Contractor must provide all labor, materials, supplies, equipment, services, and incidentals necessary to perform and timely complete the Work in strict accordance with the Contract Documents, and in an economical and efficient manner in the best interests of City, and with minimal inconvenience to the public. (B) Responsibility for the Work and Risk of Loss. Contractor is responsible for supervising and directing all aspects of the Work to facilitate the efficient and timely completion of the Work. Contractor is solely responsible for and required to exercise full control over the Work, including the construction means, methods, techniques, sequences, procedures, safety precautions and programs, and coordination of all portions of the Work with that of all other contractors and Subcontractors, except to the extent that the Contract Documents provide other specific instructions. Contractor’s responsibilities extend to any plan, method or sequence suggested, but not required by City or specified in the Contract Documents. From the date of commencement of the Work until either the date on which City formally accepts the Project or the effective date of termination of the Contract, whichever is later, Contractor bears all risks of injury or damage to the Work and the materials and equipment delivered to any Worksite, by any cause including fire, earthquake, wind, weather, vandalism or theft. (C) Project Administration. Contractor must provide sufficient and competent administration, staff, and skilled workforce necessary to perform and timely complete the Work in accordance with the Contract Documents. Before starting the Work, Contractor must designate in writing and provide complete contact information, including telephone numbers and email address, for the officer or employee in Contractor’s organization who is to serve as Contractor’s primary representative for the Project, and who has authority to act on Contractor’s behalf.

A Subcontractor may not serve as Contractor’s primary representative. (D) On-Site Superintendent. Contractor must, at all times during performance of the Work, provide a qualified and competent full-time superintendent acceptable to City, and assistants as necessary, who must be physically present at the Project site while any aspect of the Work is being performed. The superintendent must have full authority to act and communicate on behalf of Contractor, and Contractor will be bound by the superintendent’s communications to City. City’s approval of the superintendent is required before the Work commences. If City is not satisfied with the superintendent’s performance, City may request a qualified replacement of the superintendent.

Failure to comply may result in temporary suspension of the Work, at Contractor’s sole expense and with no extension of Contract Time, until an approved

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superintendent is physically present to supervise the Work. Contractor must provide written notice to City, as soon as practicable, before replacing the superintendent.
(E) Standards. Contractor must, at all times, ensure that the Work is performed in an efficient, skillful manner following best practices and in full compliance with the Contract Documents and Laws and applicable manufacturer’s recommendations. Contractor has a material and ongoing obligation to provide true and complete information, to the best of its knowledge, with respect to all records, documents, or communications pertaining to the Project, including oral or written reports, statements, certifications, Change Order requests, or Claims. (F) Meetings. Contractor, its project manager, superintendent and any primary Subcontractors requested by City, must attend a pre-construction conference, if requested by City, as well as weekly Project progress meetings scheduled with City. If applicable, Contractor may also be required to participate in coordination meetings with other parties relating to other work being performed on or near the Project site or in relation to the Project, including work or activities performed by City, other contractors, or other utility owners. (G) Construction Records. Contractor will maintain up-to-date, thorough, legible, and dated daily job reports, which document all significant activity on the Project for each day that Work is performed on the Project. The daily report for each day must include the number of workers at the Project site; primary Work activities; major deliveries; problems encountered, including injuries, if any; weather and site conditions; and delays, if any. Contractor will take date and timestamped photographs to document general progress of the Project, including site conditions prior to construction activities, before and after photographs at offset trench laterals, existing improvements and utilities, damage and restoration.

Contractor will maintain copies of all subcontracts, Project-related correspondence with subcontractors, and records of meetings with Subcontractors. Upon request by the City, Contractor will permit review of and/or provide copies of any of these construction records.
(H) Responsible Party. Contractor is solely responsible to City for the acts or omissions of any Subcontractors, or any other party or parties performing portions of the Work or providing equipment, materials or services for or on behalf of Contractor or the Subcontractors. Upon City’s written request, Contractor must promptly and permanently remove from the Project, at no cost to City, any employee or Subcontractor or employee of a Subcontractor who the Engineer has determined to be incompetent, intemperate or disorderly, or who has failed or refused to perform the Work as required under the Contract Documents. (I) Correction of Defects. Contractor must promptly correct, at Contractor’s sole expense, any Work that is determined by City to be deficient or defective in any way, including workmanship, materials, parts or equipment. Workmanship, materials, parts or equipment that do not conform to the requirements under the Plans, Specifications and every other Contract Document, as determined by City, will be considered defective and subject to rejection. Contractor must also promptly correct, at Contractor’s sole expense, any Work performed beyond the lines and

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grades shown on the Plans or established by City, and any Extra Work performed without City’s prior written approval. If Contractor fails to correct or to take reasonable steps toward correcting defective Work within five days following notice from City, or within the time specified in City’s notice to correct, City may elect to have the defective Work corrected by its own forces or by a third party, in which case the cost of correction will be deducted from the Contract Price. If City elects to correct defective Work due to Contractor’s failure or refusal to do so, City or its agents will have the right to take possession of and use any equipment, supplies, or materials available at the Project site or any Worksite on City property, in order to effectuate the correction, at no extra cost to City. Contractor’s warranty obligations under Section 11.2, Warranty, will not be waived nor limited by City’s actions to correct defective Work under these circumstances. Alternatively, City may elect to retain defective Work, and deduct the difference in value, as determined by the Engineer, from payments otherwise due to Contractor. This paragraph applies to any defective Work performed by Contractor during the oneyear warranty period under Section 11.2. (J) Contractor’s Records. Contractor must maintain all of its records relating to the Project in any form, including paper documents, photos, videos, electronic records, approved samples, and the construction records required pursuant to paragraph (G), above. Project records subject to this provision include complete Project cost records and records relating to preparation of Contractor’s bid, including estimates, take-offs, and price quotes or bids. (1) Contractor’s cost records must include all supporting documentation, including original receipts, invoices, and payroll records, evidencing its direct costs to perform the Work, including, but not limited to, costs for labor, materials and equipment. Each cost record should include, at a minimum, a description of the expenditure with references to the applicable requirements of the Contract Documents, the amount actually paid, the date of payment, and whether the expenditure is part of the original Contract Price, related to an executed Change Order, or otherwise categorized by Contractor as Extra Work. Contractor’s failure to comply with this provision as to any claimed cost operates as a waiver of any rights to recover the claimed cost.
(2) Contractor must continue to maintain its Project-related records in an organized manner for a period of five years after City’s acceptance of the Project or following Contract termination, whichever occurs first. Subject to prior notice to Contractor, City is entitled to inspect or audit any of Contractor’s Project records relating to the Project or to investigate Contractor’s plant or equipment during Contractor’s normal business hours. The record-keeping requirements set forth in this subsection 2.2(J) will survive expiration or termination of the Contract. (K) Copies of Project Documents. Contractor and its Subcontractors must keep copies, at the Project site, of all Work-related documents, including the Contract, permit(s), Plans, Specifications, Addenda, Contract amendments, Change Orders, RFIs and RFI responses, Shop Drawings, as-built drawings, schedules, daily records, testing and inspection reports or results, and any related

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written interpretations. These documents must be available to City for reference at all times during construction of the Project.

2.3 Subcontractors.
(A) General. All Work which is not performed by Contractor with its own forces must be performed by Subcontractors. City reserves the right to approve or reject any and all Subcontractors proposed to perform the Work, for reasons including the subcontractor’s poor reputation, lack of relevant experience, financial instability, and lack of technical ability or adequate trained workforce. Each Subcontractor must obtain a City business license before performing any Work. (B) Contractual Obligations. Contractor must require each Subcontractor to comply with the provisions of the Contract Documents as they apply to the Subcontractor’s portion(s) of the Work, including the generally applicable terms of the Contract Documents, and to likewise bind their subcontractors. Contractor will provide that the rights that each Subcontractor may have against any manufacturer or supplier for breach of warranty or guarantee relating to items provided by the Subcontractor for the Project, will be assigned to City. Nothing in these Contract Documents creates a contractual relationship between a Subcontractor and City, but City is deemed to be a third-party beneficiary of the contract between Contractor and each Subcontractor.
(C) Termination. If the Contract is terminated, each Subcontractor’s agreement must be assigned by Contractor to City, subject to the prior rights of any surety, but only if and to the extent that City accepts, in writing, the assignment by written notification, and assumes all rights and obligations of Contractor pursuant to each such subcontract agreement.
(D) Substitution of Subcontractor. If Contractor requests substitution of a listed Subcontractor under Public Contract Code § 4107, Contractor is solely responsible for all costs City incurs in responding to the request, including legal fees and costs to conduct a hearing, and any increased subcontract cost to perform the Work that was to be performed by the listed Subcontractor. If City determines that a Subcontractor is unacceptable to City based on the Subcontractor’s failure to satisfactorily perform its Work, or for any of the grounds for substitution listed in Public Contract Code § 4107(a), City may request removal of the Subcontractor from the Project. Upon receipt of a written request from City to remove a Subcontractor pursuant to this paragraph, Contractor will immediately remove the Subcontractor from the Project and, at no further cost to City, will either (1) self-perform the remaining Work to the extent that Contractor is duly licensed and qualified to do so, or (2) substitute a Subcontractor that is acceptable to City, in compliance with Public Contract Code § 4107, as applicable.

2.4 Coordination of Work.
(A) Concurrent Work. City reserves the right to perform, have performed, or permit performance of other work on or adjacent to the Project site while the Work is being performed for the Project. Contractor is responsible for coordinating its

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Work with other work being performed on or adjacent to the Project site, including by any utility companies or agencies, and must avoid hindering, delaying, or interfering with the work of other contractors, individuals, or entities, and must ensure safe and reasonable site access and use as required or authorized by City.

To the full extent permitted by law, Contractor must hold harmless and indemnify City against any and all claims arising from or related to Contractor’s avoidable, negligent, or willful hindrance of, delay to, or interference with the work of any utility company or agency or another contractor or subcontractor. (B) Coordination. If Contractor’s Work will connect or interface with work performed by others, Contractor is responsible for independently measuring and visually inspecting such work to ensure a correct connection and interface.

Contractor is responsible for any failure by Contractor or its Subcontractors to confirm measurements before proceeding with connecting Work. Before proceeding with any portion of the Work affected by the construction or operations of others, Contractor must give the Project Manager prompt written notification of any defects Contractor discovers which will prevent the proper execution of the Work. Failure to give notice of any known or reasonably discoverable defects will be deemed acknowledgement by Contractor that the work of others is not defective and will not prevent the proper execution of the Work. Contractor must also promptly notify City if work performed by others, including work or activities performed by City’s own forces, is operating to hinder, delay, or interfere with Contractor’s timely performance of the Work. City reserves the right to backcharge Contractor for any additional costs incurred due to Contractor’s failure to comply with the requirements in this Section 2.4.

2.5 Submittals. Unless otherwise specified, Contractor must submit to the Engineer for review and acceptance, all schedules, Shop Drawings, samples, product data, and similar submittals required by the Contract Documents, or upon request by the Engineer. Unless otherwise specified, all submittals, including Requests for Information, are subject to the general provisions of this Section, as well as specific submittal requirements that may be included elsewhere in the Contract Documents, including the Special Conditions or Specifications. The Engineer may require submission of a submittal schedule at or before a pre-construction conference, as may be specified in the Notice to Proceed. (A) General. Contractor is responsible for ensuring that its submittals are accurate and conform to the Contract Documents.
(B) Time and Manner of Submission. Contractor must ensure that its submittals are prepared and delivered in a manner consistent with the current Cityaccepted schedule for the Work and within the applicable time specified in the Contract Documents, or if no time is specified, in such time and sequence so as not to delay the performance of the Work or completion of the Project. (C) Required Contents. Each submittal must include the Project name and contract number, Contractor’s name and address, the name and address of any Subcontractor or supplier involved with the submittal, the date, and references to applicable Specification section(s) and/or drawing and detail number(s).

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(D) Required Corrections. If corrections are required, Contractor must promptly make and submit any required corrections as specified in full conformance with the requirements of this Section, or other requirements that apply to that submittal.
(E) Effect of Review and Acceptance. Review and acceptance of a submittal by City will not relieve Contractor from complying with the requirements of the Contract Documents. Contractor is responsible for any errors in any submittal, and review or acceptance of a submittal by City is not an assumption of risk or liability by City.
(F) Enforcement. Any Work performed or any material furnished, installed, fabricated or used without City’s prior acceptance of a required submittal is performed or provided at Contractor’s risk, and Contractor may be required to bear the costs incident thereto, including the cost of removing and replacing such Work, repairs to other affected portions of the Work or material, and the cost of additional time or services required of City, including costs for the Design Professional, Project Manager, or Inspector.
(G) Excessive RFIs. A RFI will be considered excessive or unnecessary if City determines that the explanation or response to the RFI is clearly and unambiguously discernable from the Contract Documents. City’s costs to review and respond to excessive or unnecessary RFIs may be deducted from payments otherwise due to Contractor.

2.6 Shop Drawings. When Shop Drawings are required by the Specifications or requested by the Engineer, they must be prepared according to best practices at Contractor’s expense. The Shop Drawings must be of a size and scale to clearly show all necessary details. Unless otherwise specified by City, Shop Drawings must be provided to the Engineer for review and acceptance at least 30 days before the Work will be performed. If City requires changes, the corrected Shop Drawings must be resubmitted to the Engineer for review within the time specified by the Engineer. For all Project components requiring Shop Drawings, Contractor will not furnish materials or perform any Work until the Shop Drawings for those components are accepted by City. Contractor is responsible for any errors or omissions in the Shop Drawings, shop fits and field corrections; any deviations from the Contract Documents; and for the results obtained by the use of Shop Drawings. Acceptance of Shop Drawings by City does not relieve Contractor of Contractor’s responsibility.

2.7 Access to Work. Contractor must afford prompt and safe access to any Worksite by City and its employees, agents, or consultants authorized by City; and upon request by City, Contractor must promptly arrange for City representatives to visit or inspect manufacturing sites or fabrication facilities for items to be incorporated into the Work.

2.8 Personnel. Contractor and its Subcontractors must employ only competent and skillful personnel to perform the Work. Contractor and its Subcontractor’s supervisors, security or safety personnel, and employees who have unescorted access to the Project site must possess proficiency in English sufficient to read, understand, receive, and implement oral or written communications or instructions

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relating to their respective job functions, including safety and security requirements. Upon written notification from the Engineer, Contractor and its Subcontractors must immediately discharge any personnel who are incompetent, disorderly, disruptive, threatening, abusive, or profane, or otherwise refuse or fail to comply with the requirements of the Contract Documents or Laws, including Laws pertaining to health and safety. Any such discharged personnel, may not be re-employed or permitted on the Project in any capacity without City’s prior written consent.

Article 3 - Contract Documents

3.1 Interpretation of Contract Documents.
(A) Plans and Specifications. The Plans and Specifications included in the Contract Documents are complementary. If Work is shown on one but not on the other, Contractor must perform the Work as though fully described on both, consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results. The Plans and Specifications are deemed to include and require everything necessary and reasonably incidental to completion of the Work, whether or not particularly mentioned or shown.

Contractor must perform all Work and services and supply all things reasonably related to and inferable from the Contract Documents. In the event of a conflict between the Plans and Specifications, the Specifications will control, unless the drawing(s) at issue are dated later than the Specification(s) at issue. Detailed drawings take precedence over general drawings, and large-scale drawings take precedence over smaller scale drawings. Any arrangement or division of the Plans and Specifications into sections is for convenience and is not intended to limit the Work required by separate trades. A conclusion presented in the Plans or Specifications is only a recommendation. Actual locations and depths must be determined by Contractor’s field investigation. Contractor may request access to underlying or background information in City’s possession that is necessary for Contractor to form its own conclusions.
(B) Duty to Notify and Seek Direction. If Contractor becomes aware of a changed condition in the Project, or of any ambiguity, conflict, inconsistency, discrepancy, omission, or error in the Contract Documents, including the Plans or Specifications, Contractor must promptly submit a Request for Information to the Engineer and wait for a response from City before proceeding further with the related Work. The RFI must notify City of the issue and request clarification, interpretation or direction. The Engineer’s clarification, interpretation or direction will be final and binding on Contractor. If Contractor proceeds with the related Work before obtaining City’s response, Contractor will be responsible for any resulting costs, including the cost of correcting any incorrect or defective Work that results.

Timely submission of a clear and complete RFI is essential to avoiding delay.

Delay resulting from Contractor’s failure to submit a timely and complete RFI to the Engineer is Non-Excusable Delay. If Contractor believes that City’s response to an RFI justifies a change to the Contract Price or Contract Time, Contractor must perform the Work as directed, but may submit a timely Change Order request in accordance with the Contract Documents. (See Article 5 and 6.)

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(C) Figures and Dimensions. Figures control over scaled dimensions. (D) Technical or Trade Terms. Any terms that have well-known technical or trade meanings will be interpreted in accordance with those meanings, unless otherwise specifically defined in the Contract Documents. (E) Measurements. Contractor must verify all relevant measurements in the Contract Documents and at the Project site before ordering any material or performing any Work, and will be responsible for the correctness of those measurements or for costs that could have been avoided by independently verifying measurements.
(F) Compliance with Laws. The Contract Documents are intended to comply with Laws and will be interpreted to comply with Laws.

3.2 Order of Precedence. Information included in one Contract Document but not in another will not be considered a conflict or inconsistency. Unless otherwise specified in the Special Conditions, in case of any conflict or inconsistency among the Contract Documents, the following order of precedence will apply, beginning from highest to lowest, with the most recent version taking precedent over an earlier version:
(A) Change Orders;
(B) Contract;
(C) General Conditions;
(D) Notice to Proceed;
(E) Notice of Award;
(F) Payment and Performance Bonds;
(G) Quote (including attachments thereto); and
(H) Cooperative Agreement.

3.3 Caltrans Standard Specifications. Any reference to or incorporation of the Standard Specifications of the State of California, Department of Transportation (“Caltrans”), including “Standard Specifications,” “Caltrans Specifications,” “State Specifications,” or “CSS,” means the most current edition of Caltrans’ Standard Specifications, unless otherwise specified (“Caltrans Standard Specifications”), including the most current amendments as of the date that Contractor’s bid was submitted for this Project. The following provisions apply to use of or reference to the Caltrans Standard Specifications or Special Provisions:
(A) Limitations. The “General Provisions” of the Caltrans Standard Specifications, i.e., sections 1 through 9, do not apply to these Contract Documents with the exception of any specific provisions, if any, which are expressly stated to apply to these Contract Documents.
(B) Conflicts or Inconsistencies. If there is a conflict or inconsistency between any provision in the Caltrans Standard Specifications or Special Provisions and a provision of these Contract Documents, as determined by City, the provision in the Contract Documents will govern.

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(C) Meanings. Terms used in the Caltrans Standard Specifications or Special Provisions are to be interpreted as follows:
(1) Any reference to the “Engineer” is deemed to mean the City Engineer. (2) Any reference to the “Special Provisions” is deemed to mean the Special Conditions, unless the Caltrans Special Provisions are expressly included in the Contract Documents listed in Section 2 of the Contract. (3) Any reference to the “Department” or “State” is deemed to mean City.

3.4 For Reference Only. Contractor is responsible for the careful review of any document, study, or report provided by City or appended to the Contract Documents solely for informational purposes and identified as “For Reference Only.” Nothing in any document, study, or report so appended and identified is intended to supplement, alter, or void any provision of the Contract Documents.

Contractor is advised that City or its representatives may be guided by information or recommendations included in such reference documents, particularly when making determinations as to the acceptability of proposed materials, methods, or changes in the Work. Any record drawings or similar final or accepted drawings or maps that are not part of the Contract Documents are deemed to be For Reference Only. The provisions of the Contract Documents are not modified by any perceived or actual conflict with provisions in any document that is provided For Reference Only.

3.5 Current Versions. Unless otherwise specified by City, any reference to standard specifications, technical specifications, or any City or state codes or regulations means the latest specification, code or regulation in effect at the time the Contract is signed.

3.6 Conformed Copies. If City prepares a conformed set of the Contract Documents following award of the Contract, it will provide Contractor with two hard copy (paper) sets and one copy of the electronic file in PDF format. It is Contractor’s responsibility to ensure that all Subcontractors, including fabricators, are provided with the conformed set of the Contract Documents at Contractor’s sole expense.

3.7 Ownership. No portion of the Contract Documents may be used for any purpose other than construction of the Project, without prior written consent from City.

Contractor is deemed to have conveyed the copyright in any designs, drawings, specifications, Shop Drawings, or other documents (in paper or electronic form) developed by Contractor for the Project, and City will retain all rights to such works, including the right to possession.

Article 4 - Bonds, Indemnity, and Insurance

4.1 Payment and Performance Bonds. Within ten days following issuance of the Notice of Award, Contractor is required to provide a payment bond and a performance bond, each in the penal sum of not less than 100% of the Contract

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Price, and each executed by Contractor and its surety using the bond forms included with the Contract Documents.
(A) Surety. Each bond must be issued and executed by a surety admitted in California. If an issuing surety cancels the bond or becomes insolvent, within seven days following written notice from City, Contractor must substitute a surety acceptable to City. If Contractor fails to substitute an acceptable surety within the specified time, City may, at its sole discretion, withhold payment from Contractor until the surety is replaced to City’s satisfaction, or terminate the Contract for default.
(B) Supplemental Bonds for Increase in Contract Price. If the Contract Price increases during construction by five percent or more over the original Contract Price, Contractor must provide supplemental or replacement bonds within ten days of written notice from City pursuant to this Section, covering 100% of the increased Contract Price and using the bond forms included with the Contract Documents.

4.2 Indemnity. To the fullest extent permitted by law, Contractor must indemnify, defend, and hold harmless City, its Council, officers, officials, employees, agents, volunteers, and consultants (individually, an “Indemnitee,” and collectively the “Indemnitees”) from and against any and all liability, loss, damage, claims, causes of action, demands, charges, fines, costs, and expenses (including, without limitation, attorney fees, expert witness fees, paralegal fees, and fees and costs of litigation or arbitration) (collectively, “Liability”) of every nature arising out of or in connection with the acts or omissions of Contractor, its employees, Subcontractors, representatives, or agents, in bidding or performing the Work or in failing to comply with any obligation of Contractor under the Contract, except such Liability caused by the active negligence, sole negligence, or misconduct of an Indemnitee. This indemnity requirement applies to any Liability arising from alleged defects in the content or manner of submission of Contractor’s bid for the Contract. Contractor’s failure or refusal to timely accept a tender of defense pursuant to this Contract will be deemed a material breach of the Contract. City will timely notify Contractor upon receipt of any third-party claim relating to the Contract, as required by Public Contract Code § 9201. Contractor waives any right to express or implied indemnity against any Indemnitee. Contractor’s indemnity obligations under this Contract will survive the expiration or any early termination of the Contract.

4.3 Insurance. No later than ten days following issuance of the Notice of Award, Contractor must procure and provide proof of the insurance coverage required by this Section in the form of certificates and endorsements acceptable to City. The required insurance must cover the activities of Contractor and its Subcontractors relating to or arising from the performance of the Work, and must remain in full force and effect at all times during the period covered by the Contract, through the date of City’s acceptance of the Project. All required insurance must be issued by a company licensed to do business in the State of California, and each such insurer must have an A.M. Best’s financial strength rating of “A” or better and a financial size rating of “VIII” or better. If Contractor fails to provide any of the required coverage in full compliance with the requirements of the Contract Documents, City may, at its sole discretion, purchase such coverage at Contractor’s expense and deduct the cost from payments due to Contractor, or terminate the Contract for

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default. The procurement of the required insurance will not be construed to limit Contractor’s liability under this Contract or to fulfill Contractor’s indemnification obligations under this Contract.
(A) Policies and Limits. The following insurance policies and limits are required for this Contract, unless otherwise specified in the Special Conditions:
(1) Commercial General Liability (“CGL”) Insurance: The CGL insurance policy must be issued on an occurrence basis, written on a comprehensive general liability form, and must include coverage for liability arising from Contractor’s or its Subcontractor’s acts or omissions in the performance of the Work, including contractor’s protected coverage, contractual liability, products and completed operations, and broad form property damage, with limits of at least $2,000,000 per occurrence and at least $4,000,000 general aggregate. The CGL insurance coverage may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by excess or umbrella policies, provided each such policy complies with the requirements set forth in this Section, including required endorsements.
(2) Automobile Liability Insurance: The automobile liability insurance policy must provide coverage of at least $2,000,000 combined single-limit per accident for bodily injury, death, or property damage, including hired and non-owned auto liability.
(3) Workers’ Compensation Insurance and Employer’s Liability: The workers’ compensation and employer’s liability insurance policy must comply with the requirements of the California Labor Code, providing coverage of at least $1,000,000 or as otherwise required by the statute. If Contractor is self-insured, Contractor must provide its Certificate of Permission to Self-Insure, duly authorized by the DIR.
(B) Notice. Each certificate of insurance must state that the coverage afforded by the policy or policies will not be reduced, cancelled or allowed to expire without at least 30 days written notice to City, unless due to non-payment of premiums, in which case ten days written notice must be made to City. (C) Waiver of Subrogation. Each required policy must include an endorsement providing that the carrier will waive any right of subrogation it may have against City.
(D) Required Endorsements. The CGL policy, automobile liability policy, pollution liability policy, and builder’s risk policy must include the following specific endorsements:
(1) The City, including its Council, officials, officers, employees, agents, volunteers and consultants (collectively, “Additional Insured”) must be named as an additional insured for all liability arising out of the operations by or on behalf of the named insured, and the policy must protect the Additional Insured against any and all liability for personal injury, death or property damage or destruction arising directly or indirectly in the

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performance of the Contract. The additional insured endorsement must be provided using ISO form CG 20 10 11 85 or an equivalent form approved by the City.
(2) The inclusion of more than one insured will not operate to impair the rights of one insured against another, and the coverages afforded will apply as though separate policies have been issued to each insured. (3) The insurance provided by Contractor is primary and no insurance held or owned by any Additional Insured may be called upon to contribute to a loss.
(4) This policy does not exclude explosion, collapse, underground excavation hazard, or removal of lateral support.
(E) Contractor’s Responsibilities. This Section 4.3 establishes the minimum requirements for Contractor’s insurance coverage in relation to this Project, but is not intended to limit Contractor’s ability to procure additional or greater coverage.

Contractor is responsible for its own risk assessment and needs and is encouraged to consult its insurance provider to determine what coverage it may wish to carry beyond the minimum requirements of this Section. Contractor is solely responsible for the cost of its insurance coverage, including premium payments, deductibles, or self-insured retentions, and no Additional Insured will be responsible or liable for any of the cost of Contractor’s insurance coverage. (F) Deductibles and Self-Insured Retentions. Any deductibles or selfinsured retentions that apply to the required insurance (collectively, “deductibles”) in excess of $100,000 are subject to approval by the City’s Risk Manager, acting in his or her sole discretion, and must be declared by Contractor when it submits its certificates of insurance and endorsements pursuant to this Section 4.3. If the City’s Risk Manager determines that the deductibles are unacceptably high, at City’s option, Contractor must either reduce or eliminate the deductibles as they apply to City and all required Additional Insured; or must provide a financial guarantee, to City’s satisfaction, guaranteeing payment of losses and related investigation, claim administration, and legal expenses. (G) Subcontractors. Contractor must ensure that each Subcontractor is required to maintain the same insurance coverage required under this Section 4.3, with respect to its performance of Work on the Project, including those requirements related to the Additional Insureds and waiver of subrogation, but excluding pollution liability or builder’s risk insurance unless otherwise specified in the Special Conditions. A Subcontractor may be eligible for reduced insurance coverage or limits, but only to the extent approved in writing in advance by the City’s Risk Manager. Contractor must confirm that each Subcontractor has complied with these insurance requirements before the Subcontractor is permitted to begin Work on the Project. Upon request by the City, Contractor must provide certificates and endorsements submitted by each Subcontractor to prove compliance with this requirement. The insurance requirements for Subcontractors do not replace or limit the Contractor’s insurance obligations.

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Article 5 - Contract Time

5.1 Time is of the Essence. Time is of the essence in Contractor’s performance and completion of the Work, and Contractor must diligently prosecute the Work and complete it within the Contract Time.
(A) General. Contractor must commence the Work on the date indicated in the Notice to Proceed and must fully complete the Work in strict compliance with all requirements of the Contract Documents and within the Contract Time.

Contractor may not begin performing the Work before the date specified in the Notice to Proceed.
(B) Authorization. Contractor is not entitled to compensation or credit for any Work performed before the date specified in the Notice to Proceed, with the exception of any schedules, submittals, or other requirements, if any, that must be provided or performed before issuance of the Notice to Proceed. (C) Rate of Progress. Contractor and its Subcontractors must, at all times, provide workers, materials, and equipment sufficient to maintain the rate of progress necessary to ensure full completion of the Work within the Contract Time.

If City determines that Contractor is failing to prosecute the Work at a sufficient rate of progress, City may, in its sole discretion, direct Contractor to provide additional workers, materials, or equipment, or to work additional hours or days without additional cost to City, in order to achieve a rate of progress satisfactory to City. If Contractor fails to comply with City’s directive in this regard, City may, at Contractor’s expense, separately contract for additional workers, materials, or equipment or use City’s own forces to achieve the necessary rate of progress.

Alternatively, City may terminate the Contract based on Contractor’s default.

5.2 Schedule Requirements. Contractor must prepare all schedules using standard, commercial scheduling software acceptable to the Engineer, and must provide the schedules in electronic and paper form as requested by the Engineer. In addition to the general scheduling requirements set forth below, Contractor must also comply with any scheduling requirements included in the Special Conditions or in the Technical Specifications.
(A) Baseline (As-Planned) Schedule. Within ten calendar days following City’s issuance of the Notice to Proceed (or as otherwise specified in the Notice to Proceed), Contractor must submit to City for review and acceptance a baseline (as-planned) schedule using critical path methodology showing in detail how Contractor plans to perform and fully complete the Work within the Contract Time, including labor, equipment, materials and fabricated items. The baseline schedule must show the order of the major items of Work and the dates of start and completion of each item, including when the materials and equipment will be procured. The schedule must also include the work of all trades, reflecting anticipated labor or crew hours and equipment loading for the construction activities, and must be sufficiently comprehensive and detailed to enable progress to be monitored on a day-by-day basis. For each activity, the baseline schedule must be dated, provided in the format specified in the Contract Documents or as

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required by City, and must include, at a minimum, a description of the activity, the start and completion dates of the activity, and the duration of the activity. (1) Specialized Materials Ordering. Within five calendar days following issuance of the Notice to Proceed, Contractor must order any specialized material or equipment for the Work that is not readily available from material suppliers. Contractor must also retain documentation of the purchase orders date(s).
(B) City’s Review of Schedules. City will review and may note exceptions to the baseline schedule, and to the progress schedules submitted as required below, to assure completion of the Work within the Contract Time. Contractor is solely responsible for resolving any exceptions noted in a schedule and, within seven days, must correct the schedule to address the exceptions. City’s review or acceptance of Contractor’s schedules will not operate to waive or limit Contractor’s duty to complete the Project within the Contract Time, nor to waive or limit City’s right to assess liquidated damages for Contractor’s unexcused failure to do so. (C) Progress Schedules. After City accepts the final baseline schedule with no exceptions, Contractor must submit an updated progress schedule and threeweek look-ahead schedule, in the format specified by City, for review and acceptance with each application for a progress payment, or when otherwise specified by City, until completion of the Work. The updated progress schedule must: show how the actual progress of the Work as constructed to date compares to the baseline schedule; reflect any proposed changes in the construction schedule or method of operations, including to achieve Project milestones within the Contract Time; and identify any actual or potential impacts to the critical path.

Contractor must also submit periodic reports to City of any changes in the projected material or equipment delivery dates for the Project. (1) Float. The progress schedule must show early and late completion dates for each task. The number of days between those dates will be designated as the “float.” Any float belongs to the Project and may be allocated by the Engineer to best serve timely completion of the Project. (2) Failure to Submit Schedule. Reliable, up-to-date schedules are essential to efficient and cost-effective administration of the Project and timely completion. If Contractor fails to submit a schedule within the time periods specified in this Section, or submits a schedule to which City has noted exceptions that are not corrected, City may withhold up to ten percent from payment(s) otherwise due to Contractor until the exceptions are resolved, the schedule is corrected and resubmitted, and City has accepted the schedule. In addition, Contractor’s failure to comply with the schedule requirements in this Section 5.2 will be deemed a material default and a waiver of any claims for Excusable Delay or loss of productivity arising during any period when Contractor is out of compliance, subject only to the limits of Public Contract Code § 7102.
(D) Recovery Schedule. If City determines that the Work is more than one week behind schedule, within seven days following written notice of such

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determination, Contractor must submit a recovery schedule, showing how Contractor intends to perform and complete the Work within the Contract Time, based on actual progress to date.
(E) Effect of Acceptance. Contractor and its Subcontractors must perform the Work in accordance with the most current City-accepted schedule unless otherwise directed by City. City’s acceptance of a schedule does not operate to extend the time for completion of the Work or any component of the Work, and will not affect City’s right to assess liquidated damages for Contractor’s unexcused delay in completing the Work within the Contract Time.
(F) Posting. Contractor must at all times prominently post a copy of the most current City-accepted progress or recovery schedule in its on-site office. (G) Reservation of Rights. City reserves the right to direct the sequence in which the Work must be performed or to make changes in the sequence of the Work in order to facilitate the performance of work by City or others, or to facilitate City’s use of its property. The Contract Time or Contract Price may be adjusted to the extent such changes in sequence actually increase or decrease Contractor’s time or cost to perform the Work.
(H) Authorized Working Days and Times. Contractor is limited to working Monday through Friday, excluding holidays, during City’s normal business hours, except as provided in the Special Conditions or as authorized in writing by City.

City reserves the right to charge Contractor for additional costs incurred by City due to Work performed on days or during hours not expressly authorized in the Contract Documents, including reimbursement of costs incurred for inspection, testing, and construction management services.

5.3 Delay and Extensions of Contract Time.
(A) Notice of Delay. If Contractor becomes aware of any actual or potential delay affecting the critical path, Contractor must promptly notify the Engineer in writing, regardless of the nature or cause of the delay, so that City has a reasonable opportunity to mitigate or avoid the delay.
(B) Excusable Delay. The Contract Time may be extended if Contractor encounters “Excusable Delay,” which is an unavoidable delay in completing the Work within the Contract Time due to causes completely beyond Contractor’s control, and which Contractor could not have avoided or mitigated through reasonable care, planning, foresight, and diligence, provided that Contractor is otherwise fully performing its obligations under the Contract Documents. Grounds for Excusable Delay may include fire, natural disasters including earthquake or unusually severe weather, acts of terror or vandalism, epidemic, unforeseeable adverse government actions, unforeseeable actions of third parties, encountering unforeseeable hazardous materials, unforeseeable site conditions, or suspension for convenience under Article 13. The Contract Time will not be extended based on circumstances which will not unavoidably delay completing the Work within the Contract Time based on critical path analysis.

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(C) Weather Delays. A “Weather Delay Day” is a Working Day during which Contractor and its forces, including Subcontractors, are unable to perform more than 40% of the critical path Work scheduled for that day due to adverse weather conditions which impair the ability to safely or effectively perform the scheduled critical path Work that day. Adverse weather conditions may include rain, saturated soil, and Project site clean-up required due to adverse weather. Determination of what constitutes critical path Work scheduled for that day will be based on the most current, City-approved schedule. Contractor will be entitled to a non-compensable extension of the Contract Time for each Weather Delay Day in excess of the normal Weather Delay Days within a given month as determined by reliable records, including monthly rainfall averages, for the preceding ten years (or as otherwise specified in the Special Conditions or Specifications). (1) Contractor must fully comply with the applicable procedures in Articles 5 and 6 of the General Conditions regarding requests to modify the Contract Time.
(2) Contractor will not be entitled to an extension of time for a Weather Delay Day to the extent Contractor is responsible for concurrent delay on that day.
(3) Contractor must take reasonable steps to mitigate the consequences of Weather Delay Days, including prudent workforce management and protecting the Work, Project Site, materials, and equipment.
(D) Non-Excusable Delay. Delay which Contractor could have avoided or mitigated through reasonable care, planning, foresight and diligence is “NonExcusable Delay.” Contractor is not entitled to an extension of Contract Time or any compensation for Non-Excusable Delay, or for Excusable Delay that is concurrent with Non-Excusable Delay. Non-Excusable Delay includes delay caused by:
(1) weather conditions which are normal for the location of the Project, as determined by reliable records, including monthly rainfall averages, for the preceding ten years;
(2) Contractor’s failure to order equipment and materials sufficiently in advance of the time needed for completion of the Work within the Contract Time;
(3) Contractor’s failure to provide adequate notification to utility companies or agencies for connections or services necessary for completion of the Work within the Contract Time;
(4) foreseeable conditions which Contractor could have ascertained from reasonably diligent inspection of the Project site or review of the Contract Documents or other information provided or available to Contractor;

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(5) Contractor’s failure, refusal, or financial inability to perform the Work within the Contract Time, including insufficient funds to pay its Subcontractors or suppliers;
(6) performance or non-performance by Contractor’s Subcontractors or suppliers;
(7) the time required to respond to excessive RFIs (see Section 2.5(G)); (8) delayed submission of required submittals, or the time required for correction and resubmission of defective submittals;
(9) time required for repair of, re-testing, or re-inspection of defective Work; (10) enforcement of Laws by City, or outside agencies with jurisdiction over the Work; or
(11) City’s exercise or enforcement of any of its rights or Contractor’s duties pursuant to the Contract Documents, including correction of defective Work, extra inspections or testing due to non-compliance with Contract requirements, safety compliance, environmental compliance, or rejection and return of defective or deficient submittals. (E) Compensable Delay. Pursuant to Public Contract Code § 7102, in addition to entitlement to an extension of Contract Time, Contractor is entitled to compensation for costs incurred due to delay caused solely by City, when that delay is unreasonable under the circumstances involved and not within the contemplation of the parties (“Compensable Delay”). Contractor is not entitled to an extension of Contract Time or recovery of costs for Compensable Delay that is concurrent with Non-Excusable Delay. Delay due to causes that are beyond the control of either City or Contractor, including Weather Delay Days, discovery of Historic or Archeological Items pursuant to Section 7.18, or the actions or inactions of third parties or other agencies, is not Compensable Delay, and will only entitle Contractor to an extension of time commensurate with the time lost due to such delay.
(F) Recoverable Costs. Contractor is not entitled to compensation for Excusable Delay unless it is Compensable Delay, as defined above. Contractor is entitled to recover only the actual, direct, reasonable, and substantiated costs (“Recoverable Costs”) for each working day that the Compensable Delay prevents Contractor from proceeding with more than 50% of the critical path Work scheduled for that day, based on the most recent progress schedule accepted by City. Recoverable Costs will not include home office overhead or lost profit. (G) Request for Extension of Contract Time or Recoverable Costs. A request for an extension of Contract Time or any associated Recoverable Costs must be submitted in writing to City within ten calendar days of the date the delay is first encountered, even if the duration of the delay is not yet known at that time, or any entitlement to the Contract Time extension or to the Recoverable Costs will be deemed waived. In addition to complying with the requirements of this Article 5, the request must be submitted in compliance with the Change Order request

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procedures in Article 6 below. Strict compliance with these requirements is necessary to ensure that any delay or consequences of delay may be mitigated as soon as possible, and to facilitate cost-efficient administration of the Project and timely performance of the Work. Any request for an extension of Contract Time or Recoverable Costs that does not strictly comply with all of the requirements of Article 5 and Article 6 will be deemed waived.
(1) Required Contents. The request must include a detailed description of the cause(s) of the delay and must also describe the measures that Contractor has taken to mitigate the delay and/or its effects, including efforts to mitigate the cost impact of the delay, such as by workforce management or by a change in sequencing. If the delay is still ongoing at the time the request is submitted, the request should also include Contractor’s plan for continued mitigation of the delay or its effects. (2) Delay Days and Costs. The request must specify the number of days of Excusable Delay claimed or provide a realistic estimate if the duration of the delay is not yet known. If Contractor believes it is entitled to Recoverable Costs for Compensable Delay, the request must specify the amount and basis for the Recoverable Costs that are claimed or provide a realistic estimate if the amount is not yet known. Any estimate of delay duration or cost must be updated in writing and submitted with all required supporting documentation as soon as the actual time and cost is known.

The maximum extension of Contract Time will be the number of days, if any, by which an Excusable Delay or a Compensable Delay exceeds any concurrent Non-Excusable Delay. Contractor is entitled to an extension of Contract Time, or compensation for Recoverable Costs, only if, and only to the extent that, such delay will unavoidably delay Final Completion. (3) Supporting Documentation. The request must also include any and all supporting documentation necessary to evidence the delay and its actual impacts, including scheduling and cost impacts with a time impact analysis using critical path methodology and demonstrating the unavoidable delay to Final Completion. The time impact analysis must be submitted in a form or format acceptable to City.
(4) Burden of Proof. Contractor has the burden of proving that: the delay was an Excusable or Compensable Delay, as defined above; Contractor has fully complied with its scheduling obligations in Section 5.2, Schedule Requirements; Contractor has made reasonable efforts to mitigate the delay and its schedule and cost impacts; the delay will unavoidably result in delaying Final Completion; and any Recoverable Costs claimed by Contractor were actually incurred and were reasonable under the circumstances.
(5) Legal Compliance. Nothing in this Section 5.3 is intended to require the waiver, alteration, or limitation of the applicability of Public Contract Code § 7102.
(6) No Waiver. Any grant of an extension of Contract Time, or compensation for Recoverable Costs due to Compensable Delay, will not

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operate as a waiver of City’s right to assess liquidated damages for NonExcusable Delay. (7) Dispute Resolution. In the event of a dispute over entitlement to an extension of Contract Time or compensation for Recoverable Costs, Contractor may not stop Work pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work. Contractor’s sole recourse for an unresolved dispute based on City’s rejection of a Change Order request for an extension of Contract Time or compensation for Recoverable Costs is to comply with the dispute resolution provisions set forth in Article 12 below.

5.4 Liquidated Damages. It is expressly understood that if Final Completion is not achieved within the Contract Time, City will suffer damages from the delay that are difficult to determine and accurately specify. Pursuant to Public Contract Code § 7203, if Contractor fails to achieve Final Completion within the Contract Time, City will charge Contractor in the amount specified in the Contract for each day that Final Completion is delayed beyond the Contract Time, as liquidated damages and not as a penalty. Any waiver of accrued liquidated damages, in whole or in part, is subject to approval of the City Council or its authorized designee. (A) Liquidated Damages. Liquidated damages will not be assessed for any Excusable or Compensable Delay, as set forth above.
(B) Milestones. Liquidated damages may also be separately assessed for failure to meet milestones specified elsewhere in the Contract Documents. (C) Setoff. City is entitled to deduct the amount of liquidated damages assessed against any payments otherwise due to Contractor, including progress payments, Final Payment, or unreleased retention. If there are insufficient Contract funds remaining to cover the full amount of liquidated damages assessed, City is entitled to recover the balance from Contractor or its performance bond surety. (D) Occupancy or Use. Occupancy or use of the Project in whole or in part prior to Final Completion does not constitute City’s acceptance of the Project and will not operate as a waiver of City’s right to assess liquidated damages for Contractor’s Non-Excusable Delay in achieving Final Completion. (E) Other Remedies. City’s right to liquidated damages under this Section applies only to damages arising from Contractor’s Non-Excusable Delay or failure to complete the Work within the Contract Time. City retains its right to pursue all other remedies under the Contract for other types of damage, including damage to property or persons, costs or diminution in value from defective materials or workmanship, costs to repair or complete the Work, or other liability caused by Contractor.

Article 6 - Contract Modification

6.1 Contract Modification. Subject to the limited exception set forth in subsection (D) below, any change in the Work or the Contract Documents, including the

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Contract Price or Contract Time, will not be a valid and binding change to the Contract unless it is formalized in a Change Order, including a “no-cost” Change Order or a unilateral Change Order. Changes in the Work pursuant to this Article 6 will not operate to release, limit, or abridge Contractor’s warranty obligations pursuant to Article 11 or any obligations of Contractor’s bond sureties. (A) City-Directed Changes. City may direct changes in the scope or sequence of Work or the requirements of the Contract Documents, without invalidating the Contract. Such changes may include Extra Work as set forth in subsection (C) below, or deletion or modification of portions of the Work.

Contractor must promptly comply with City-directed changes in the Work in accordance with the original Contract Documents, even if Contractor and City have not yet reached agreement as to adjustments to the Contract Price or Contract Time for the change in the Work or for the Extra Work. Contractor is not entitled to extra compensation for cost savings resulting from “value engineering” pursuant to Public Contract Code § 7101, except to the extent authorized in advance by City in writing, and subject to any applicable procedural requirements for submitting a proposal for value engineering cost savings.
(B) Disputes. In the event of a dispute over entitlement to or the amount of a change in Contract Time or a change in Contract Price related to a City-directed change in the Work, Contractor must perform the Work as directed and may not delay its Work or cease Work pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work, including the Work in dispute. Likewise, in the event that City and Contractor dispute whether a portion or portions of the Work are already required by the Contract Documents or constitute Extra Work, or otherwise dispute the interpretation of any portion(s) of the Contract Documents, Contractor must perform the Work as directed and may not delay its Work or cease Work pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work, including the Work in dispute, as directed by City. If Contractor refuses to perform the Work in dispute, City may, acting in its sole discretion, elect to delete the Work from the Contract and reduce the Contract Price accordingly, and self-perform the Work or direct that the Work be performed by others. Alternatively, City may elect to terminate the Contract for convenience or for cause. Contractor’s sole recourse for an unresolved dispute related to changes in the Work or performance of any Extra Work is to comply with the dispute resolution provisions set forth in Article 12, below.
(C) Extra Work. City may direct Contractor to perform Extra Work related to the Project. Contractor must promptly perform any Extra Work as directed or authorized by City in accordance with the original Contract Documents, even if Contractor and City have not yet reached agreement on adjustments to the Contract Price or Contract Time for such Extra Work. If Contractor believes it is necessary to perform Extra Work due to changed conditions, Contractor must promptly notify the Engineer in writing, specifically identifying the Extra Work and the reason(s) the Contractor believes it is Extra Work. This notification requirement does not constitute a Change Order request pursuant to Section 6.2 below. Contractor must maintain detailed daily records that itemize the cost of

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each element of Extra Work, and sufficiently distinguish the direct cost of the Extra Work from the cost of other Work performed. For each day that Contractor performs Extra Work, or Work that Contractor contends is Extra Work, Contractor must submit no later than the following Working Day, a daily report of the Extra Work performed that day and the related costs, together with copies of certified payroll, invoices, and other documentation substantiating the costs (“Extra Work Report”). The Engineer will make any adjustments to Contractor’s Extra Work Report(s) based on the Engineer’s records of the Work. When an Extra Work Report(s) is agreed on and signed by both City and Contractor, the Extra Work Report(s) will become the basis for payment under a duly authorized and signed Change Order. Failure to submit the required documentation by close of business on the next Working Day is deemed a full and complete waiver for any change in the Contract Price or Contract Time for any Extra Work performed that day. (D) Minor Changes and RFIs. Minor field changes, including RFI replies from City, that do not affect the Contract Price or Contract Time and that are approved by the Engineer acting within his or her scope of authority, do not require a Change Order. By executing an RFI reply from City, Contractor agrees that it will perform the Work as clarified therein, with no change to the Contract Price or Contract Time.
(E) Remedy for Non-Compliance. Contractor’s failure to promptly comply with a City-directed change is deemed a material breach of the Contract, and in addition to all other remedies available to it, City may, at its sole discretion, hire another contractor or use its own forces to complete the disputed Work at Contractor’s sole expense, and may deduct the cost from the Contract Price.

6.2 Contractor Change Order Requests. Contractor must submit a request or proposal for a change in the Work, compensation for Extra Work, or a change in the Contract Price or Contract Time as a written Change Order request or proposal.
(A) Time for Submission. Any request for a change in the Contract Price or the Contract Time must be submitted in writing to the Engineer within ten calendar days of the date that Contractor first encounters the circumstances, information or conditions giving rise to the Change Order request, even if the total amount of the requested change in the Contract Price or impact on the Contract Time is not yet known at that time. If City requests that Contractor propose the terms of a Change Order, unless otherwise specified in City’s request, Contractor must provide the Engineer with a written proposal for the change in the Contract Price or Contract Time within five working days of receiving City’s request, in a form satisfactory to the Engineer.
(B) Required Contents. Any Change Order request or proposal submitted by Contractor must include a complete breakdown of actual or estimated costs and credits, and must itemize labor, materials, equipment, taxes, insurance, subcontract amounts, and, if applicable, Extra Work Reports. Any estimated cost must be updated in writing as soon as the actual amount is known.

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(C) Required Documentation. All claimed costs must be fully documented, and any related request for an extension of time or delay-related costs must be included at that time and in compliance with the requirements of Article 5 of the General Conditions. Upon request, Contractor must permit City to inspect its original and unaltered bidding records, subcontract agreements, subcontract change orders, purchase orders, invoices, or receipts associated with the claimed costs.
(D) Required Form. Contractor must use City’s form(s) for submitting all Change Order requests or proposals, unless otherwise specified by City. (E) Certification. All Change Order requests must be signed by Contractor and must include the following certification:
“The undersigned Contractor certifies under penalty of perjury that its statements and representations in this Change Order request are true and correct. Contractor warrants that this Change Order request is comprehensive and complete as to the Work or changes referenced herein, and agrees that any known or foreseeable costs, expenses, or time extension requests not included herein, are deemed waived.”

6.3 Adjustments to Contract Price. The amount of any increase or decrease in the Contract Price will be determined based on one of the following methods listed below, in the order listed with unit pricing taking precedence over the other methods. Markup applies only to City-authorized time and material Work, and does not apply to any other payments to Contractor. For Work items or components that are deleted in their entirety, Contractor will only be entitled to compensation only for those direct, actual, and documented costs (including restocking fees), reasonably incurred before Contractor was notified of the City’s intent to delete the Work, with no markup for overhead, profit, or other indirect costs. (A) Unit Pricing. Amounts previously provided by Contractor in the form of unit prices, either in a bid schedule or in a post-award schedule of values pursuant to Section 8.1, Schedule of Values, will apply to determine the price for the affected Work, to the extent applicable unit prices have been provided for that type of Work.

No additional markup for overhead, profit, or other indirect costs will be added to the calculation.
(B) Lump Sum. A mutually agreed upon all-inclusive lump sum price for the affected Work with no additional markup for overhead, profit, or other indirect costs.
(C) Time and Materials. On a time and materials basis, if and only to the extent compensation on a time and materials basis is expressly authorized by City in advance of Contractor’s performance of the Work and subject to any not-toexceed limit. Time and materials compensation for increased costs or Extra Work (but not decreased costs or deleted Work), will include allowed markup for overhead, profit, and other indirect costs, and which may include a not-to-exceed limit, calculated as the total of the following sums, the cumulative total of which may not exceed the maximum markup rate of 15%:

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(1) All direct labor costs provided by the Contractor, excluding superintendence, project management, or administrative costs, plus 15% markup;
(2) All direct material costs provided by the Contractor, including sales tax, plus 15% markup;
(3) All direct plant and equipment rental costs provided by the Contractor, plus 15% markup;
(4) All direct additional subcontract costs plus 10% markup for Work performed by Subcontractors; and
(5) Increased bond or insurance premium costs computed at 1.5% of total of the previous four sums.

6.4 Unilateral Change Order. If the parties dispute the terms of a proposed Change Order, including disputes over the amount of compensation or extension of time that Contractor has requested, the value of deleted or changed Work, what constitutes Extra Work, or quantities used, City may elect to issue a unilateral Change Order, directing performance of the Work, and authorizing a change in the Contract Price or Contract Time for the adjustment to compensation or time that the City believes is merited. Contractor’s sole recourse to dispute the terms of a unilateral Change Order is to submit a timely Claim pursuant to Article 12, below.

6.5 Non-Compliance Deemed Waiver. Contractor waives its entitlement to any increase in the Contract Price or Contract Time if Contractor fails to fully comply with the provisions of this Article. Contractor will not be paid for unauthorized Extra Work.

Article 7 - General Construction Provisions

7.1 Permits, Fees, Business License, and Taxes.
(A) Permits, Fees, and City Business License. Contractor must obtain and pay for all permits, fees, or licenses required to perform the Work, including a City business license. Contractor must cooperate with and provide notifications to all government agencies with jurisdiction over the Project, as may be required.

Contractor must provide City with copies of all records of permits and permit applications, payment of required fees, and any licenses required for the Work. (B) Taxes. Contractor must pay for all taxes on labor, material and equipment, except Federal Excise Tax to the extent that City is exempt from Federal Excise Tax.

7.2 Temporary Facilities. Contractor must provide, at Contractor’s sole expense, any and all temporary facilities for the Project, including an onsite staging area for materials and equipment, a field office, sanitary facilities, utilities, storage, scaffolds, barricades, walkways, and any other temporary structure required to

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safely perform the Work along with any incidental utility services. The location of all temporary facilities must be approved by the City prior to installation. Temporary facilities must be safe and adequate for the intended use and installed and maintained in accordance with Laws and the Contract Documents. Contractor must fence and screen the Project site and, if applicable, any separate Worksites, including the staging area, and its operation must minimize inconvenience to neighboring properties. Additional provisions pertaining to temporary facilities may be included in the Specifications or Special Conditions. (A) Utilities. Contractor must install and maintain the power, water, sewer and all other utilities required for the Project site, including the piping, wiring, internet and wifi connections, and any related equipment necessary to maintain the temporary facilities.
(B) Removal and Repair. Contractor must promptly remove all such temporary facilities when they are no longer needed or upon completion of the Work, whichever comes first. Contractor must promptly repair any damage to City’s property or to other property caused by the installation, use, or removal of the temporary facilities, and must promptly restore the property to its original or intended condition.

7.3 Noninterference and Site Management. Contractor must avoid interfering with City’s use of its property at or adjacent to the Project site, including use of roadways, entrances, parking areas, walkways, and structures. Contractor must also minimize disruption of access to private property in the Project vicinity.

Contractor must coordinate with affected property owners, tenants, and businesses, and maintain some vehicle and pedestrian access to their residences or properties at all times. Temporary access ramps, fencing or other measures must be provided as needed. Before blocking access to a private driveway or parking lot, Contractor must provide effective notice to the affected parties at least 48 hours in advance of the pending closure and allow them to remove vehicles.

Private driveways, residences and parking lots must have access to a roadway during non-Work hours.
(A) Offsite Acquisition. Unless otherwise provided by City, Contractor must acquire, use and dispose of, at its sole expense, any additional Worksites, licenses, easements, and temporary facilities necessary to access and perform the Work.
(B) Offsite Staging Area and Field Office. If additional space beyond the Project site is needed, such as for the staging area or the field office, Contractor may need to make arrangements with the nearby property owner(s) to secure the space. Before using or occupying any property owned by a third party, Contractor must provide City with a copy of the necessary license agreement, easement, or other written authorization from the property owner, together with a written release from the property owner holding City harmless from any related liability, in a form acceptable to the City Attorney.
(C) Traffic Management. Contractor must provide traffic management and traffic controls as specified in the Contract Documents, as required by Laws, and

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as otherwise required to ensure the public and worker safety, and to avoid interference with public or private operations or the normal flow of vehicular, bicycle, or pedestrian traffic.

7.4 Signs. No signs may be displayed on or about City’s property, except signage which is required by Laws or by the Contract Documents, without City’s prior written approval as to size, design, and location.

7.5 Project Site and Nearby Property Protections.
(A) General. Contractor is responsible at all times, on a 24-hour basis and at its sole cost, for protecting the Work, the Project site, and the materials and equipment to be incorporated into the Work, until the City has accepted the Project, excluding any exceptions to acceptance, if any. Except as specifically authorized by City, Contractor must confine its operations to the area of the Project site indicated in the Plans and Specifications. Contractor is liable for any damage caused by Contractor or its Subcontractors to the Work, City’s property, the property of adjacent or nearby property owners and the work or personal property of other contractors working for City, including damage related to Contractor’s failure to adequately secure the Work or any Worksite.
(1) Subject to City’s approval, Contractor will provide and install safeguards to protect the Work; any Worksite, including the Project site; City’s real or personal property and the real or personal property of adjacent or nearby property owners, including plant and tree protections. (2) City wastewater systems may not be interrupted. If the Work disrupts existing sewer facilities, Contractor must immediately notify City and establish a plan, subject to City’s approval, to convey the sewage in closed conduits back into the sanitary sewer system. Sewage must not be permitted to flow in trenches or be covered by backfill. (3) Contractor must remove with due care, and store at City’s request, any objects or material from the Project site that City will salvage or reuse at another location.
(4) If directed by Engineer, Contractor must promptly repair or replace any property damage, as specified by the Engineer. However, acting in its sole discretion, City may elect to have the property damage remedied otherwise, and may deduct the cost to repair or replace the damaged property from payment otherwise due to Contractor.
(5) Contractor will not permit any structure or infrastructure to be loaded in a manner that will damage or endanger the integrity of the structure or infrastructure.
(B) Securing Project Site. After completion of Work each day, Contractor must secure the Project site and, to the extent feasible, make the area reasonably accessible to the public unless City approves otherwise. All excess materials and equipment not protected by approved traffic control devices must be relocated to

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the staging area or demobilized. Trench spoils must be hauled off the Project site daily and open excavations must be protected with steel plates. Contractor and Subcontractor personnel may not occupy or use the Project site for any purpose during non-Work hours, except as may be provided in the Contract Documents or pursuant to prior written authorization from City.
(C) Unforeseen Conditions. If Contractor encounters facilities, utilities, or other unknown conditions not shown on or reasonably inferable from the Plans or apparent from inspection of the Project site, Contractor must immediately notify the City and promptly submit a Request for Information to obtain further directions from the Engineer. Contractor must avoid taking any action which could cause damage to the facilities or utilities pending further direction from the Engineer. The Engineer’s written response will be final and binding on Contractor. If the Engineer’s subsequent direction to Contractor affects Contractor’s cost or time to perform the Work, Contractor may submit a Change Order request as set forth in Article 6 above.
(D) Support; Adjacent Properties. Contractor must provide, install, and maintain all shoring, bracing, and underpinning necessary to provide support to City’s property and adjacent properties and improvements thereon. Contractor must provide notifications to adjacent property owners as may be required by Laws. See also, Section 7.15, Trenching of Five Feet or More. (E) Notification of Property Damage. Contractor must immediately notify the City of damage to any real or personal property resulting from Work on the Project.

Contractor must immediately provide a written report to City of any such property damage in excess of $500 (based on estimated cost to repair or replace) within 24 hours of the occurrence. The written report must include: (1) the location and nature of the damage, and the owner of the property, if known; (2) the name and address of each employee of Contractor or any Subcontractor involved in the damage; (3) a detailed description of the incident, including precise location, time, and names and contact information for known witnesses; and (4) a police or first responder report, if applicable. If Contractor is required to file an accident report with another government agency, Contractor will provide a copy of the report to City.

7.6 Materials and Equipment.
(A) General. Unless otherwise specified, all materials and equipment required for the Work must be new, free from defects, and of the best grade for the intended purpose, and furnished in sufficient quantities to ensure the proper and expeditious performance of the Work. Contractor must employ measures to preserve the specified quality and fitness of the materials and equipment. Unless otherwise specified, all materials and equipment required for the Work are deemed to include all components required for complete installation and intended operation and must be installed in accordance with the manufacturer’s recommendations or instructions. Contractor is responsible for all shipping, handling, and storage costs associated with the materials and equipment required for the Work. Contractor is responsible for providing security and protecting the Work and all of the required materials, supplies, tools and equipment at Contractor’s sole cost until City has

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formally accepted the Project as set forth in Section 11.1, Final Completion.

Contractor will not assign, sell, mortgage, or hypothecate any materials or equipment for the Project, or remove any materials or equipment that have been installed or delivered.
(B) City-Provided. If the Work includes installation of materials or equipment to be provided by City, Contractor is solely responsible for the proper examination, handling, storage, and installation in accordance with the Contract Documents.

Contractor must notify City of any defects discovered in City-provided materials or equipment, sufficiently in advance of scheduled use or installation to afford adequate time to procure replacement materials or equipment as needed.

Contractor is solely responsible for any loss of or damage to such items which occurs while the items are in Contractor’s custody and control, the cost of which may be offset from the Contract Price and deducted from any payment(s) due to Contractor.
(C) Intellectual Property Rights. Contractor must, at its sole expense, obtain any authorization or license required for use of patented or copyright-protected materials, equipment, devices or processes that are incorporated into the Work.

Contractor’s indemnity obligations in Article 4 apply to any claimed violation of intellectual property rights in violation of this provision.

7.7 Substitutions.
(A) “Or Equal.” Any Specification designating a material, product, or thing (collectively, “item”) or service by specific brand or trade name, followed by the words “or equal,” is intended only to indicate the quality and type of item or service desired, and Contractor may request use of any equal item or service. Unless otherwise stated in the Specifications, any reference to a specific brand or trade name for an item that is used solely for the purpose of describing the type of item desired, will be deemed to be followed by the words “or equal.” A substitution will only be approved if it is a true “equal” item in every aspect of design, function, and quality, as determined by City, including dimensions, weight, maintenance requirements, durability, fit with other elements, and schedule impacts. (B) Request for Substitution. A post-award request for substitution of an item or service must be submitted in writing to the Engineer for approval in advance, within the applicable time period provided in the Contract Documents. If no time period is specified, the substitution request may be submitted any time within 35 days after the date of award of the Contract, or sufficiently in advance of the time needed to avoid delay of the Work, whichever is earlier. (C) Substantiation. Any available data substantiating the proposed substitute as an equal item or service must be submitted with the written request for substitution. Contractor’s failure to timely provide all necessary substantiation, including any required test results as soon as they are available, is grounds for rejection of the proposed substitution, without further review. (D) Burden of Proving Equality. Contractor has the burden of proving the equality of the proposed substitution at Contractor’s sole cost. City has sole

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discretion to determine whether a proposed substitution is equal, and City’s determination is final.
(E) Approval or Rejection. If the proposed substitution is approved, Contractor is solely responsible for any additional costs or time associated with the substituted item or service. If the proposed substitution is rejected, Contractor must, without delay, install the item or use the service as specified by City. (F) Contractor’s Obligations. City’s approval of a proposed substitution will not relieve Contractor from any of its obligations under the Contract Documents.

In the event Contractor makes an unauthorized substitution, Contractor will be solely responsible for all resulting cost impacts, including the cost of removal and replacement and the impact to other design elements.

7.8 Testing and Inspection.
(A) General. All materials, equipment, and workmanship used in the Work are subject to inspection and testing by City at all times and locations during construction and/or fabrication and at any Worksite, including at shops and yards as well as at the Project site. All manufacturers’ application or installation instructions must be provided to the Inspector at least ten days prior to the first such application or installation. Contractor must, at all times, make the Work available for testing or inspection. Neither City’s inspection or testing of Work, nor its failure to do so, operate to waive or limit Contractor’s duty to complete the Work in accordance with the Contract Documents.
(B) Scheduling and Notification. Contractor must cooperate with City in coordinating the inspections and testing. Contractor must submit samples of materials, at Contractor’s expense, and schedule all tests required by the Contract Documents in time to avoid any delay to the progress of the Work. Contractor must notify the Engineer no later than noon of the Working Day before any inspection or testing and must provide timely notice to the other necessary parties as specified in the Contract Documents. If Contractor schedules an inspection or test beyond regular Work hours, or on a Saturday, Sunday, or recognized City holiday, Contractor must notify the Engineer at least two Working Days in advance for approval. If approved, Contractor must reimburse City for the cost of the overtime inspection or testing. Such costs, including the City’s hourly costs for required personnel, may be deducted from payments otherwise due to Contractor. (C) Responsibility for Costs. City will bear the initial cost of inspection and testing to be performed by independent testing consultants retained by City, subject to the following exceptions:
(1) Contractor will be responsible for the costs of any subsequent tests which are required to substantiate compliance with the Contract Documents, and any associated remediation costs.
(2) Contractor will be responsible for inspection costs, at City’s hourly rates, for inspection time lost because the Work is not ready or Contractor fails to appear for a scheduled inspection.

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(3) If any portion of the Work that is subject to inspection or testing is covered or concealed by Contractor prior to the inspection or testing, Contractor will bear the cost of making that portion of the Work available for the inspection or testing required by the Contract Documents, and any associated repair or remediation costs.
(4) Contractor is responsible for properly shoring all compaction test sites deeper than five feet below grade, as required under Section 7.15 below. (5) Any Work or material that is defective or fails to comply with the requirements of the Contract Documents must be promptly repaired, removed, replaced, or corrected by Contractor, at Contractor’s sole expense, even if that Work or material was previously inspected or included in a progress payment.
(D) Contractor’s Obligations. Contractor is solely responsible for any delay occasioned by remediation of defective or noncompliant Work or material.

Inspection of the Work does not in any way relieve Contractor of its obligations to perform the Work as specified. Any Work done without the required inspection(s) will also be subject to rejection by City.
(E) Distant Locations. If required off-site testing or inspection must be conducted at a location more than 100 miles from the Project site, Contractor is solely responsible for the additional travel costs required for testing and/or inspection at such locations.
(F) Final Inspection. The provisions of this Section 7.8 also apply to final inspection under Article 11, Completion and Warranty Provisions.

7.9 Project Site Conditions and Maintenance. Contractor must at all times, on a 24-hour basis and at its sole cost, maintain the Project site and staging and storage areas in clean, neat, and sanitary condition and in compliance with all Laws pertaining to safety, air quality, and dust control. Adequate toilets must be provided, and properly maintained and serviced for all workers on the Project site, located in a suitably secluded area, subject to City’s prior approval. Contractor must also, on a daily basis and at its sole cost, remove and properly dispose of the debris and waste materials from the Project site.
(A) Air Emissions Control. Contractor must not discharge smoke or other air contaminants into the atmosphere in violation of any Laws. (B) Dust and Debris. Contractor must minimize and confine dust and debris resulting from the Work. Contractor must abate dust nuisance by cleaning, sweeping, and immediately sprinkling with water excavated areas of dirt or other materials prone to cause dust, and within one hour after the Engineer notifies Contractor that an airborne nuisance exists. The Engineer may direct that Contractor provide an approved water-spraying truck for this purpose. If water is used for dust control, Contractor will only use the minimum necessary. Contractor must take all necessary steps to keep waste water out of streets, gutters, or storm drains. See Section 7.19, Environmental Control. If City determines that the dust control is not adequate, City may have the work done by others and deduct the

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cost from the Contract Price. Contractor will immediately remove any excess excavated material from the Project site and any dirt deposited on public streets. (C) Clean up. Before discontinuing Work in an area, Contractor must clean the area and remove all debris and waste along with the construction equipment, tools, machinery, and surplus materials.
(1) Except as otherwise specified, all excess Project materials, and the materials removed from existing improvements on the Project site with no salvage value or intended reuse by City, will be Contractor’s property. (2) Hauling trucks and other vehicles leaving the Project site must be cleaned of exterior mud or dirt before traveling on City streets. Materials and loose debris must be delivered and loaded to prevent dropping materials or debris. Contractor must immediately remove spillage from hauling on any publicly traveled way. Streets affected by Work on the Project must be kept clean by street sweeping.
(D) Disposal. Contractor must dispose of all Project debris and waste materials in a safe and legal manner. Contractor may not burn or bury waste materials on the Project site. Contractor will not allow any dirt, refuse, excavated material, surplus concrete or mortar, or any associated washings, to be disposed of onto streets, into manholes or into the storm drain system. (E) Completion. At the completion of the Work, Contractor must remove from the Project site all of its equipment, tools, surplus materials, waste materials and debris, presenting a clean and neat appearance. Before demobilizing from the Project site, Contractor must ensure that all surfaces are cleaned, sealed, waxed, or finished as applicable, and that all marks, stains, paint splatters, and the like have been properly removed from the completed Work and the surrounding areas.

Contractor must ensure that all parts of the construction are properly joined with the previously existing and adjacent improvements and conditions. Contractor must provide all cutting, fitting and patching needed to accomplish that requirement. Contractor must also repair or replace all existing improvements that are damaged or removed during the Work, both on and off the Project site, including curbs, sidewalks, driveways, fences, signs, utilities, street surfaces and structures. Repairs and replacements must be at least equal to the previously existing improvements, and the condition, finish and dimensions must match the previously existing improvements. Contractor must restore to original condition all property or items that are not designated for alteration under the Contract Documents and leave each Worksite clean and ready for occupancy or use by City.
(F) Non-Compliance. If Contractor fails to comply with its maintenance and cleanup obligations or any City clean up order, City may, acting in its sole discretion, elect to suspend the Work until the condition(s) is corrected with no increase in the Contract Time or Contract Price, or undertake appropriate cleanup measures without further notice and the cost will be deducted from any amounts due or to become due to Contractor.

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7.10 Instructions and Manuals. Contractor must provide to City three copies each of all instructions and manuals required by the Contract Documents, unless otherwise specified. These must be complete as to drawings, details, parts lists, performance data, and other information that may be required for City to easily maintain and service the materials and equipment installed for this Project. (A) Submittal Requirements. All manufacturers’ application or installation instructions must be provided to City at least ten days prior to the first such application. The instructions and manuals, along with any required guarantees, must be delivered to City for review.
(B) Training. Contractor or its Subcontractors must train City’s personnel in the operation and maintenance of any complex equipment or systems as a condition precedent to Final Completion, if required in the Contract Documents.

7.11 As-built Drawings. Contractor and its Subcontractors must prepare and maintain at the Project site a detailed, complete and accurate as-built set of the Plans which will be used solely for the purpose of recording changes made in any portion of the original Plans in order to create accurate record drawings at the end of the Project. (A) Duty to Update. The as-built drawings must be updated as changes occur, on a daily basis if necessary. City may withhold the estimated cost for City to have the as-built drawings prepared from payments otherwise due to Contractor, until the as-built drawings are brought up to date to the satisfaction of City. Actual locations to scale must be identified on the as-built drawings for all runs of mechanical and electrical work, including all site utilities installed underground, in walls, floors, or otherwise concealed. Deviations from the original Plans must be shown in detail. The exact location of all main runs, whether piping, conduit, ductwork or drain lines, must be shown by dimension and elevation. The location of all buried pipelines, appurtenances, or other improvements must be represented by coordinates and by the horizontal distance from visible above-ground improvements.
(B) Final Completion. Contractor must verify that all changes in the Work are depicted in the as-built drawings and must deliver the complete set of as-built drawings to the Engineer for review and acceptance as a condition precedent to Final Completion and Final Payment.

7.12 Existing Utilities.
(A) General. The Work may be performed in developed, urban areas with existing utilities, both above and below ground, including utilities identified in the Contract Documents or in other informational documents or records. Contractor must take due care to locate identified or reasonably identifiable utilities before proceeding with trenching, excavation, or any other activity that could damage or disrupt existing utilities. This may include excavation with small equipment, potholing, or hand excavation, and, if practical, using white paint or other suitable markings to delineate the area to be excavated. Except as otherwise provided herein, Contractor will be responsible for costs resulting from damage to identified

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or reasonably identifiable utilities due to Contractor’s negligence or failure to comply with the Contract Documents, including the requirements in this Article 7. (B) Unidentified Utilities. Pursuant to Government Code § 4215, if, during the performance of the Work, Contractor discovers utility facilities not identified by City in the Contract Documents, Contractor must immediately provide written notice to City and the utility. City assumes responsibility for the timely removal, relocation, or protection of existing main or trunkline utility facilities located on the Project site if those utilities are not identified in the Contract Documents. Contractor will be compensated in accordance with the provisions of the Contract Documents for the costs of locating, repairing damage not due to Contractor’s failure to exercise reasonable care, and removing or relocating utility facilities not indicated in the Plans or Specifications with reasonable accuracy, and for equipment on the Project necessarily idled during such work. Contractor will not be assessed liquidated damages for delay in completion of the Work, to the extent the delay was caused by City’s failure to provide for removal or relocation of the utility facilities.

7.13 Notice of Excavation. Contractor must comply with all applicable requirements in Government Code §§ 4216 through 4216.5, which are incorporated by reference herein. Government Code § 4216.2 requires that, except in an emergency, Contractor must contact the appropriate regional notification center, or Underground Services Alert, at least two working days, but not more than 14 calendar days, before starting any excavation if the excavation will be conducted in an area that is known, or reasonably should be known, to contain subsurface installations. Contractor may not begin excavation until it has obtained and submitted to Engineer an inquiry identification number from Underground Services Alert.

7.14 Trenching and Excavations of Four Feet or More. As required by Public Contract Code § 7104, if the Work includes digging trenches or other excavations that extend deeper than four feet below the surface, the provisions in this Section apply to the Work and the Project.
(A) Duty to Notify. Contractor must promptly, and before the following conditions are disturbed, provide written notice to City if Contractor finds any of the following conditions:
(1) Material that Contractor believes may be a hazardous waste, as defined in § 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with the provisions of existing Laws;
(2) Subsurface or latent physical conditions at the Project site differing from those indicated by information about the Project site made available to bidders prior to the deadline for submitting bids; or
(3) Unknown physical conditions at the Project site of any unusual nature, materially different from those ordinarily encountered and generally recognized as inherent in work of the character required by the Contract Documents.

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(B) City Investigation. City will promptly investigate the conditions and if City finds that the conditions materially differ from those indicated, apparent, or reasonably inferred from information about the Project site made available to bidders, or 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, City will issue a Change Order.
(C) Disputes. In the event that a dispute arises between City and Contractor regarding any of the conditions specified in subsection (B) above, or the terms of a Change Order issued by City, Contractor will not be excused from completing the Work within the Contract Time, but must proceed with all Work to be performed under the Contract. Contractor will retain any and all rights provided either by the Contract or by Laws which pertain to the resolution of disputes between Contractor and City.

7.15 Trenching of Five Feet or More. As required by Labor Code § 6705, if the Contract Price exceeds $25,000 and the Work includes the excavation of any trench or trenches of five feet or more in depth, a detailed plan must be submitted to City for acceptance in advance of the excavation. The detailed plan must show the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation. If the plan varies from the shoring system standards, it must be prepared by a California registered civil or structural engineer. Use of a shoring, sloping, or protective system less effective than that required by the Construction Safety Orders is prohibited.

7.16 New Utility Connections. Except as otherwise specified, City will pay connection charges and meter costs for new permanent utilities required by the Contract Documents, if any. Contractor must notify City sufficiently in advance of the time needed to request service from each utility provider so that connections and services are initiated in accordance with the Project schedule.

7.17 Lines and Grades. Contractor is required to use any benchmark provided by the Engineer. Unless otherwise specified in the Contract Documents, Contractor must provide all lines and grades required to execute the Work. Contractor must also provide, preserve, and replace if necessary, all construction stakes required for the Project. All stakes or marks must be set by a California licensed surveyor or a California registered civil engineer. Contractor must notify the Engineer of any discrepancies found between Contractor’s staking and grading and information provided by the Contract Documents. Upon completion, all Work must conform to the lines, elevations, and grades shown in the Plans, including any changes directed by a Change Order.

7.18 Historic or Archeological Items.
(A) Contractor’s Obligations. Contractor must ensure that all persons performing Work at the Project site are required to immediately notify the Project Manager, upon discovery of any potential historic or archeological items, including historic or prehistoric ruins, a burial ground, archaeological or vertebrate paleontological site, including fossilized footprints or other archeological,

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paleontological or historical feature on the Project site (collectively, “Historic or Archeological Items”).
(B) Discovery; Cessation of Work. Upon discovery of any potential Historic or Archeological Items, Work must be stopped within an 85-foot radius of the find and may not resume until authorized in writing by City. If required by City, Contractor must assist in protecting or recovering the Historic or Archeological Items, with any such assistance to be compensated as Extra Work on a time and materials basis under Article 6, Contract Modification. At City’s discretion, a suspension of Work required due to discovery of Historic or Archeological Items may be treated as Excusable Delay pursuant to Article 5, or as a suspension for convenience under Article 13.

7.19 Environmental Control. Contractor must not pollute any drainage course or its tributary inlets with fuels, oils, bitumens, acids, insecticides, herbicides or other harmful materials. Contractor must prevent the release of any hazardous material or hazardous waste into the soil or groundwater, and prevent the unlawful discharge of pollutants into City’s storm drain system and watercourses as required below. Contractor and its Subcontractors must at all times in the performance of the Work comply with all Laws concerning pollution of waterways. (A) Stormwater Permit. Contractor must comply with all applicable conditions of the State Water Resources Control Board National Pollutant Discharge Elimination System General Permit for Waste Discharge Requirements for Discharges of Stormwater Runoff Associated with Construction Activity (“Stormwater Permit”).
(B) Contractor’s Obligations. If required for the Work, a copy of the Stormwater Permit is on file in City’s principal administrative offices, and Contractor must comply with it without adjustment of the Contract Price or the Contract Time. Contractor must timely and completely submit required reports and monitoring information required by the conditions of the Stormwater Permit.

Contractor also must comply with all other Laws governing discharge of stormwater, including applicable municipal stormwater management programs.

7.20 Noise Control. Contractor must comply with all applicable noise control Laws.

Noise control requirements apply to all equipment used for the Work or related to the Work, including trucks, transit mixers or transient equipment that may or may not be owned by Contractor.

7.21 Mined Materials. Pursuant to the Surface Mining and Reclamation Act of 1975, Public Resources Code § 2710 et seq., any purchase of mined materials, such as construction aggregate, sand, gravel, crushed stone, road base, fill materials, and any other mineral materials must originate from a surface mining operation included on the AB 3098 List, which is available online at:
ftp://ftp.consrv.ca.gov/pub/omr/AB3098%20List/AB3908List.pdf.

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Article 8 - Payment

8.1 Schedule of Values. Prior to submitting its first application for payment, Contractor must prepare and submit to the Project Manager a schedule of values apportioned to the various divisions and phases of the Work, including mobilization and demobilization. If a Bid Schedule was submitted with Contractor’s bid, the amounts in the schedule of values must be consistent with the Bid Schedule. Each line item contained in the schedule of values must be assigned a value such that the total of all items equals the Contract Price. The items must be sufficiently detailed to enable accurate evaluation of the percentage of completion claimed in each application for payment, and the assigned value consistent with any itemized or unit pricing submitted with Contractor’s bid.
(A) Measurements for Unit Price Work. Materials and items of Work to be paid for on the basis of unit pricing will be measured according to the methods specified in the Contract Documents.
(B) Deleted or Reduced Work. Contractor will not be compensated for Work that City has deleted or reduced in scope, except for any labor, material or equipment costs for such Work that Contractor reasonably incurred before Contractor learned that the Work could be deleted or reduced. Contractor will only be compensated for those actual, direct and documented costs incurred, and will not be entitled to any mark up for overhead or lost profits.

8.2 Progress Payments. Following the last day of each month, or as otherwise required by the Special Conditions or Specifications, Contractor will submit to the Project Manager a monthly application for payment for Work performed during the preceding month based on the estimated value of the Work performed during that preceding month.
(A) Application for Payment. Each application for payment must be itemized to include labor, materials, and equipment incorporated into the Work, and materials and equipment delivered to the Project site, as well as authorized and approved Change Orders. Each payment application must be supported by the unit prices submitted with Contractor’s Bid Schedule and/or schedule of values and any other substantiating data required by the Contract Documents. (B) Payment of Undisputed Amounts. City will pay the undisputed amount due within 30 days after Contractor has submitted a complete and accurate payment application, subject to Public Contract Code § 20104.50. City will deduct a percentage from each progress payment as retention, as set forth in Section 8.5, below, and may withhold additional amounts as set forth in Section 8.3, below.

8.3 Adjustment of Payment Application. City may adjust or reject the amount requested in a payment application, including application for Final Payment, in whole or in part, if the amount requested is disputed or unsubstantiated. Contractor will be notified in writing of the basis for the modification to the amount requested.

City may also deduct or withhold from payment otherwise due based upon any of the circumstances and amounts listed below. Sums withheld from payment otherwise due will be released when the basis for that withholding has been remedied and no longer exists.

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(A) For Contractor’s unexcused failure to perform the Work as required by the Contract Documents, including correction or completion of punch list items, City may withhold or deduct an amount based on the City’s estimated cost to correct or complete the Work.
(B) For loss or damage caused by Contractor or its Subcontractors arising out of or relating to performance of the Work or any failure to protect the Project site, City may deduct an amount based on the estimated cost to repair or replace. (C) For Contractor’s failure to pay its Subcontractors and suppliers when payment is due, City may withhold an amount equal to the total of past due payments and may opt to pay that amount separately via joint check pursuant to Section 8.6(B), Joint Checks.
(D) For Contractor’s failure to timely correct rejected, nonconforming, or defective Work, City may withhold or deduct an amount based on the City’s estimated cost to correct or complete the Work.
(E) For any unreleased stop notice, City may withhold 125% of the amount claimed.
(F) For Contractor’s failure to submit any required schedule or schedule update in the manner and within the time specified in the Contract Documents, City may withhold an amount equal to five percent of the total amount requested until Contractor complies with its schedule submittal obligations. (G) For Contractor’s failure to maintain or submit as-built documents in the manner and within the time specified in the Contract Documents, City may withhold or deduct an amount based on the City’s cost to prepare the as-builts. (H) For Work performed without Shop Drawings that have been accepted by City, when accepted Shop Drawings are required before proceeding with the Work, City may deduct an amount based on the estimated costs to correct unsatisfactory Work or diminution in value.
(I) For fines, payments, or penalties assessed under the Labor Code, City may deduct from payments due to Contractor as required by Laws and as directed by the Division of Labor Standards Enforcement.
(J) For any other costs or charges that may be withheld or deducted from payments to Contractor, as provided in the Contract Documents, including liquidated damages, City may withhold or deduct such amounts from payment otherwise due to Contractor.

8.4 Early Occupancy. Neither City’s payment of progress payments nor its partial or full use or occupancy of the Project constitutes acceptance of any part of the Work.

8.5 Retention. City will retain five percent of the full amount due on each progress payment (i.e., the amount due before any withholding or deductions pursuant to Section 8.3, Adjustment to Payment Application), or the percentage stated in the

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Notice Inviting Bids, whichever is greater, as retention to ensure full and satisfactory performance of the Work. Contractor is not entitled to any reduction in the rate of withholding at any time, nor to release of any retention before 35 days following City’s acceptance of the Project.
(A) Substitution of Securities. As provided by Public Contract Code § 22300, Contractor may request in writing that it be allowed, at its sole expense, to substitute securities for the retention withheld by City. Any escrow agreement entered into pursuant to this provision must fully comply with Public Contract Code § 22300 and will be subject to approval as to form by City’s legal counsel. If City exercises its right to draw upon such securities in the event of default pursuant to section (7) of the statutory Escrow Agreement for Security Deposits in Lieu of Retention, pursuant to subdivision (f) of Public Contract Code § 22300 (“Escrow Agreement”), and if Contractor disputes that it is in default, its sole remedy is to comply with the dispute resolution procedures in Article 12 and the provisions therein. It is agreed that for purposes of this paragraph, an event of default includes City’s rights pursuant to these Contract Documents to withhold or deduct sums from retention, including withholding or deduction for liquidated damages, incomplete or defective Work, stop payment notices, or backcharges. It is further agreed that if any individual authorized to give or receive written notice on behalf of a party pursuant to section (10) of the Escrow Agreement are unavailable to give or receive notice on behalf of that party due to separation from employment, retirement, death, or other circumstances, the successor or delegee of the named individual is deemed to be the individual authorized to give or receive notice pursuant to section (10) of the Escrow Agreement.
(B) Release of Undisputed Retention. All undisputed retention, less any amounts that may be assessed as liquidated damages, retained for stop notices, or otherwise withheld pursuant to Section 8.3, Adjustment of Payment Application, will be released as Final Payment to Contractor no sooner than 35 days following recordation of the notice of completion, and no later than 60 days following acceptance of the Project by City’s governing body or authorized designee pursuant to Section 11.1(C), Acceptance, or, if the Project has not been accepted, no later than 60 days after the Project is otherwise considered complete pursuant to Public Contract Code § 7107(c).

8.6 Payment to Subcontractors and Suppliers. Each month, Contractor must promptly pay each Subcontractor and supplier the value of the portion of labor, materials, and equipment incorporated into the Work or delivered to the Project site by the Subcontractor or supplier during the preceding month. Such payments must be made in accordance with the requirements of Laws pertaining to such payments, and those of the Contract Documents and applicable subcontract or supplier contract.
(A) Withholding for Stop Notice. Pursuant to Civil Code § 9358, City will withhold 125% of the amount claimed by an unreleased stop notice, a portion of which may be retained by City for the costs incurred in handling the stop notice claim, including attorneys’ fees and costs, as authorized by law.

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(B) Joint Checks. City reserves the right, acting in its sole discretion, to issue joint checks made payable to Contractor and a Subcontractor or supplier, if City determines this is necessary to ensure fair and timely payment for a Subcontractor or supplier who has provided services or goods for the Project. As a condition to release of payment by a joint check, the joint check payees may be required to execute a joint check agreement in a form provided or approved by the City Attorney’s Office. The joint check payees will be jointly and severally responsible for the allocation and disbursement of funds paid by joint check. Payment by joint check will not be construed to create a contractual relationship between City and a Subcontractor or supplier of any tier beyond the scope of the joint check agreement.

8.7 Final Payment. Contractor’s application for Final Payment must comply with the requirements for submitting an application for a progress payment as stated in Section 8.2, above. Corrections to previous progress payments, including adjustments to estimated quantities for unit priced items, may be included in the Final Payment. If Contractor fails to submit a timely application for Final Payment, City reserves the right to unilaterally process and issue Final Payment without an application from Contractor in order to close out the Project. For the purposes of determining the deadline for Claim submission pursuant to Article 12, the date of Final Payment is deemed to be the date that City acts to release undisputed retention as final payment to Contractor, or otherwise provides written notice to Contractor of Final Payment or that no undisputed funds remain available for Final Payment due to offsetting withholdings or deductions pursuant to Section 8.3, Adjustment of Payment Application. If the amount due from Contractor to City exceeds the amount of Final Payment, City retains the right to recover the balance from Contractor or its sureties.

8.8 Release of Claims. City may, at any time, require that payment of the undisputed portion of any progress payment or Final Payment be contingent upon Contractor furnishing City with a written waiver and release of all claims against City arising from or related to the portion of Work covered by those undisputed amounts subject to the limitations of Public Contract Code § 7100. Any disputed amounts may be specifically excluded from the release.

8.9 Warranty of Title. Contractor warrants that title to all work, materials, or equipment incorporated into the Work and included in a request for payment will pass over to City free of any claims, liens, or encumbrances upon payment to Contractor.

Article 9 - Labor Provisions

9.1 Discrimination Prohibited. Discrimination against any prospective or present employee engaged in the Work on grounds of race, color, ancestry, national origin, ethnicity, religion, sex, sexual orientation, age, disability, or marital status is strictly prohibited. Contractor and its Subcontractors are required to comply with all applicable Laws prohibiting discrimination, including the California Fair Employment and Housing Act (Govt. Code § 12900 et seq.), Government Code § 11135, and Labor Code §§ 1735, 1777.5, 1777.6, and 3077.5.

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9.2 Labor Code Requirements.
(A) Eight Hour Day. Pursuant to Labor Code § 1810, eight hours of labor constitute a legal day’s work under this Contract.
(B) Penalty. Pursuant to Labor Code § 1813, Contractor will forfeit to City as a penalty, the sum of $25.00 for each day during which a worker employed by Contractor or any Subcontractor is required or permitted to work more than eight hours in any one calendar day or more than 40 hours per calendar week, except if such workers are paid overtime under Labor Code § 1815. (C) Apprentices. Contractor is responsible for compliance with the requirements governing employment and payment of apprentices, as set forth in Labor Code § 1777.5, which is fully incorporated by reference. (D) Notices. Pursuant to Labor Code § 1771.4, Contractor is required to post all job site notices prescribed by Laws.

9.3 Prevailing Wages. Each worker performing Work under this Contract that is covered under Labor Code §§ 1720 or 1720.9, including cleanup at the Project site, must be paid at a rate not less than the prevailing wage as defined in §§ 1771 and 1774 of the Labor Code. The prevailing wage rates are on file with the City and available online at http://www.dir.ca.gov/dlsr. Contractor must post a copy of the applicable prevailing rates at the Project site.
(A) Penalties. Pursuant to Labor Code § 1775, Contractor and any Subcontractor will forfeit to City as a penalty up to $200.00 for each calendar day, or portion a day, for each worker paid less than the applicable prevailing wage rate. Contractor must also pay each worker the difference between the applicable prevailing wage rate and the amount actually paid to that worker. (B) Federal Requirements. If this Project is subject to federal prevailing wage requirements in addition to California prevailing wage requirements, Contractor and its Subcontractors are required to pay the higher of the currently applicable state or federal prevailing wage rates.

9.4 Payroll Records. Contractor must comply with the provisions of Labor Code §§ 1776 and 1812 and all implementing regulations, which are fully incorporated by this reference, including requirements for electronic submission of payroll records to the DIR.
(A) Contractor and Subcontractor Obligations. Contractor and each Subcontractor must keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed in connection with the Work. Each payroll record must contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
(1) The information contained in the payroll record is true and correct; and

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(2) Contractor or the Subcontractor has complied with the requirements of Labor Code §§ 1771, 1811, and 1815 for any Work performed by its employees on the Project.
(B) Certified Record. A certified copy of an employee’s payroll record must be made available for inspection or furnished to the employee or his or her authorized representative on request, to City, to the Division of Labor Standards Enforcement, to the Division of Apprenticeship Standards of the DIR, and as further required by the Labor Code.
(C) Enforcement. Upon notice of noncompliance with Labor Code § 1776, Contractor or Subcontractor has ten days in which to comply with the requirements of this section. If Contractor or Subcontractor fails to do so within the ten-day period, Contractor or Subcontractor will forfeit a penalty of $100.00 per day, or portion a day, for each worker for whom compliance is required, until strict compliance is achieved. Upon request by the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement, these penalties will be withheld from payments then due to Contractor.

9.5 Labor Compliance. Pursuant to Labor Code § 1771.4, the Contract for this Project is subject to compliance monitoring and enforcement by the DIR.

Article 10 - Safety Provisions

10.1 Safety Precautions and Programs. Contractor and its Subcontractors are fully responsible for safety precautions and programs, and for the safety of persons and property in the performance of the Work. Contractor and its Subcontractors must at all times comply with all applicable health and safety Laws and seek to avoid injury, loss, or damage to persons or property by taking reasonable steps to protect its employees and other persons at any Worksite, materials and equipment stored on or off site, and property at or adjacent to any Worksite. (A) Reporting Requirements. Contractor must immediately notify the City of any death, serious injury or illness resulting from Work on the Project. Contractor must immediately provide a written report to City of each recordable accident or injury occurring at any Worksite within 24 hours of the occurrence. The written report must include: (1) the name and address of the injured or deceased person; (2) the name and address of each employee of Contractor or of any Subcontractor involved in the incident; (3) a detailed description of the incident, including precise location, time, and names and contact information for known witnesses; and (4) a police or first responder report, if applicable. If Contractor is required to file an accident report with a government agency, Contractor will provide a copy of the report to City.
(B) Legal Compliance. Contractor’s safety program must comply with the applicable legal and regulatory requirements. Contractor must provide City with copies of all notices required by Laws.

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(C) Contractor’s Obligations. Any damage or loss caused by Contractor arising from the Work which is not insured under property insurance must be promptly remedied by Contractor.
(D) Remedies. If City determines, in its sole discretion, that any part of the Work or Project site is unsafe, City may, without assuming responsibility for Contractor’s safety program, require Contractor or its Subcontractor to cease performance of the Work or to take corrective measures to City’s satisfaction. If Contractor fails to promptly take the required corrective measures, City may perform them and deduct the cost from the Contract Price. Contractor agrees it is not entitled to submit a Claim for damages, for an increase in Contract Price, or for a change in Contract Time based on Contractor’s compliance with City’s request for corrective measures pursuant to this provision.

10.2 Hazardous Materials. Unless otherwise specified in the Contract Documents, this Contract does not include the removal, handling, or disturbance of any asbestos or other Hazardous Materials. If Contractor encounters materials on the Project site that Contractor reasonably believes to be asbestos or other Hazardous Materials, and the asbestos or other Hazardous Materials have not been rendered harmless, Contractor may continue Work in unaffected areas reasonably believed to be safe, but must immediately cease work on the area affected and report the condition to City. No asbestos, asbestos-containing products or other Hazardous Materials may be used in performance of the Work.

10.3 Material Safety. Contractor is solely responsible for complying with § 5194 of Title 8 of the California Code of Regulations, including by providing information to Contractor’s employees about any hazardous chemicals to which they may be exposed in the course of the Work. A hazard communication program and other forms of warning and training about such exposure must be used. Contractor must also maintain Safety Data Sheets (“SDS”) at the Project site, as required by Laws, for materials or substances used or consumed in the performance of the Work.

The SDS will be accessible and available to Contractor’s employees, Subcontractors, and City.
(A) Contractor Obligations. Contractor is solely responsible for the proper delivery, handling, use, storage, removal, and disposal of all materials brought to the Project site and/or used in the performance of the Work. Contractor must notify the Engineer if a specified product or material cannot be used safely. (B) Labeling. Contractor must ensure proper labeling on any material brought onto the Project site so that any persons working with or in the vicinity of the material may be informed as to the identity of the material, any potential hazards, and requirements for proper handling, protections, and disposal.

10.4 Hazardous Condition. Contractor is solely responsible for determining whether a hazardous condition exists or is created during the course of the Work, involving a risk of bodily harm to any person or risk of damage to any property. If a hazardous condition exists or is created, Contractor must take all precautions necessary to address the condition and ensure that the Work progresses safely under the circumstances. Hazardous conditions may result from, but are not limited to, use

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of specified materials or equipment, the Work location, the Project site condition, the method of construction, or the way any Work must be performed.

10.5 Emergencies. In an emergency affecting the safety or protection of persons, Work, or property at or adjacent to any Worksite, Contractor must take reasonable and prompt actions to prevent damage, injury, or loss, without prior authorization from the City if, under the circumstances, there is inadequate time to seek prior authorization from the City.

Article 11 - Completion and Warranty Provisions

11.1 Final Completion.
(A) Final Inspection and Punch List. When the Work required by this Contract is fully performed, Contractor must provide written notification to City requesting final inspection. The Engineer will schedule the date and time for final inspection, which must include Contractor’s primary representative for this Project and its superintendent. Based on that inspection, City will prepare a punch list of any items that are incomplete, missing, defective, incorrectly installed, or otherwise not compliant with the Contract Documents. The punch list to Contractor will specify the time by which all of the punch list items must be completed or corrected.

The punch list may include City’s estimated cost to complete each punch list item if Contractor fails to do so within the specified time. The omission of any noncompliant item from a punch list will not relieve Contractor from fulfilling all requirements of the Contract Documents. Contractor’s failure to complete any punch list item within the time specified in the punch list will not waive or abridge its warranty obligations for any such items that must be completed by the City or by a third party retained by the City due to Contractor’s failure to timely complete any such outstanding item.
(B) Requirements for Final Completion. Final Completion will be achieved upon completion or correction of all punch list items, as verified by City’s further inspection, and upon satisfaction of all other Contract requirements, including any commissioning required under the Contract Documents and submission of all final submittals, including instructions and manuals as required under Section 7.10, and complete, final as-built drawings as required under Section 7.11, all to City’s satisfaction.
(C) Acceptance. The Project will be considered accepted upon City Council action during a public meeting to accept the Project, unless the Engineer is authorized to accept the Project, in which case the Project will be considered accepted upon the date of the Engineer’s issuance of a written notice of acceptance. In order to avoid delay of Project close out, the City may elect, acting in its sole discretion, to accept the Project as complete subject to exceptions for punch list items that are not completed within the time specified in the punch list. (D) Final Payment and Release of Retention. Final Payment and release of retention, less any sums withheld pursuant to the provisions of the Contract Documents, will not be made sooner than 35 days after recordation of the notice

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of completion. If Contractor fails to complete all of the punch list items within the specified time, City may withhold up to 150% of City’s estimated cost to complete each of the remaining items from Final Payment and may use the withheld retention to pay for the costs to self-perform the outstanding items or to retain a third party to complete any such outstanding punch list item.

11.2 Warranty.
(A) General. Contractor warrants that all materials and equipment will be new unless otherwise specified, of good quality, in conformance with the Contract Documents, and free from defective workmanship and materials. Contractor further warrants that the Work will be free from material defects not intrinsic in the design or materials required in the Contract Documents. Contractor warrants that materials or items incorporated into the Work comply with the requirements and standards in the Contract Documents, including compliance with Laws, and that any Hazardous Materials encountered or used were handled as required by Laws.

At City’s request, Contractor must furnish satisfactory evidence of the quality and type of materials and equipment furnished. Contractor’s warranty does not extend to damage caused by normal wear and tear, or improper use or maintenance. (B) Warranty Period. Contractor’s warranty must guarantee its Work for a period of one year from the date of Project acceptance (the “Warranty Period”), except when a longer guarantee is provided by a supplier or manufacturer or is required by the Specifications or Special Conditions. Contractor must obtain from its Subcontractors, suppliers and manufacturers any special or extended warranties required by the Contract Documents.
(C) Warranty Documents. As a condition precedent to Final Completion, Contractor must supply City with all warranty and guarantee documents relevant to equipment and materials incorporated into the Work and guaranteed by their suppliers or manufacturers.
(D) Subcontractors. The warranty obligations in the Contract Documents apply to Work performed by Contractor and its Subcontractors, and Contractor agrees to be co-guarantor of such Work.
(E) Contractor’s Obligations. Upon written notice from City to Contractor of any defect in the Work discovered during the Warranty Period, Contractor or its responsible Subcontractor must promptly correct the defective Work at its own cost. Contractor’s obligation to correct defects discovered during the Warranty Period will continue past the expiration of the Warranty Period as to any defects in Work for which Contractor was notified prior to expiration of the Warranty Period.

Work performed during the Warranty Period (“Warranty Work”) will be subject to the warranty provisions in this Section 11.2 for a one-year period that begins upon completion of such Warranty Work to City’s satisfaction. (F) City’s Remedies. If Contractor or its responsible Subcontractor fails to correct defective Work within ten days following notice by City, or sooner if required by the circumstances, City may correct the defects to conform with the Contract

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Documents at Contractor’s sole expense. Contractor must reimburse City for its costs in accordance with subsection (H), below.
(G) Emergency Repairs. In cases of emergency where any delay in correcting defective Work could cause harm, loss or damage, City may immediately correct the defects to conform with the Contract Documents at Contractor’s sole expense. Contractor or its surety must reimburse City for its costs in accordance with subsection (H), below.
(H) Reimbursement. Contractor must reimburse City for its costs to repair under subsections (F) or (G), above, within 30 days following City’s submission of a demand for payment pursuant to this provision. If City is required to initiate legal action to compel Contractor’s compliance with this provision, and City is the prevailing party in such action, Contractor and its surety are solely responsible for all of City’s attorney’s fees and legal costs expended to enforce Contractor’s warranty obligations herein in addition to any and all costs City incurs to correct the defective Work.

11.3 Use Prior to Final Completion. City reserves the right to occupy or make use of the Project, or any portions of the Project, prior to Final Completion if City has determined that the Project or portion of it is in a condition suitable for the proposed occupation or use, and that it is in its best interest to occupy or make use of the Project, or any portions of it, prior to Final Completion. City will notify Contractor in writing of its intent to occupy or make use of the Project or any portions of the Project, pursuant to this provision.
(A) Non-Waiver. Occupation or use of the Project, in whole or in part, prior to Final Completion will not operate as acceptance of the Work or any portion of it, nor will it operate as a waiver of any of City’s rights or Contractor’s duties pursuant to these Contract Documents, and will not affect nor bear on the determination of the time of substantial completion with respect to any statute of repose pertaining to the time for filing an action for construction defect. (B) City’s Responsibility. City will be responsible for the cost of maintenance and repairs due to normal wear and tear with respect to those portions of the Project that are being occupied or used before Final Completion. The Contract Price or the Contract Time may be adjusted pursuant to the applicable provisions of these Contract Documents if, and only to the extent that, any occupation or use under this Section actually adds to Contractor’s cost or time to complete the Work within the Contract Time.

11.4 Substantial Completion. For purposes of determining “substantial completion” with respect to any statute of repose pertaining to the time for filing an action for construction defect, “substantial completion” is deemed to mean the last date that Contractor or any Subcontractor performs Work on the Project prior to City acceptance of the Project, except for warranty work performed under this Article.

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Article 12 - Dispute Resolution

12.1 Claims. This Article applies to and provides the exclusive procedures for any Claim arising from or related to the Contract or performance of the Work. (A) Definition. “Claim” means a separate demand by Contractor, submitted in writing by registered or certified mail with return receipt requested, for a change in the Contract Time, including a time extension or relief from liquidated damages, or a change in the Contract Price, when the demand has previously been submitted to City in accordance with the requirements of the Contract Documents, and which has been rejected or disputed by City, in whole or in part. A Claim may also include that portion of a unilateral Change Order that is disputed by the Contractor. (B) Limitations. A Claim may only include the portion of a previously rejected demand that remains in dispute between Contractor and City. With the exception of any dispute regarding the amount of money actually paid to Contractor as Final Payment, Contractor is not entitled to submit a Claim demanding a change in the Contract Time or the Contract Price, which has not previously been submitted to City in full compliance with Article 5 and Article 6, and subsequently rejected in whole or in part by City.
(C) Scope of Article. This Article is intended to provide the exclusive procedures for submission and resolution of Claims of any amount and applies in addition to the provisions of Public Contract Code § 9204 and § 20104 et seq., which are incorporated by reference herein.
(D) No Work Delay. Notwithstanding the submission of a Claim or any other dispute between the parties related to the Project or the Contract Documents, Contractor must perform the Work and may not delay or cease Work pending resolution of a Claim or other dispute, but must continue to diligently prosecute the performance and timely completion of the Work, including the Work pertaining to the Claim or other dispute.
(E) Informal Resolution. Contractor will make a good faith effort to informally resolve a dispute before initiating a Claim, preferably by face-to-face meeting between authorized representatives of Contractor and City.

12.2 Claims Submission. The following requirements apply to any Claim subject to this Article:
(A) Substantiation. The Claim must be submitted to City in writing, clearly identified as a “Claim” submitted pursuant to this Article 12 and must include all of the documents necessary to substantiate the Claim including the Change Order request that was rejected in whole or in part, and a copy of City’s written rejection that is in dispute. The Claim must clearly identify and describe the dispute, including relevant references to applicable portions of the Contract Documents, and a chronology of relevant events. Any Claim for additional payment must include a complete, itemized breakdown of all known or estimated labor, materials, taxes, insurance, and subcontract, or other costs. Substantiating documentation such as payroll records, receipts, invoices, or the like, must be submitted in support

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of each component of claimed cost. Any Claim for an extension of time or delay costs must be substantiated with a schedule analysis and narrative depicting and explaining claimed time impacts.
(B) Claim Format and Content. A Claim must be submitted in the following format:
(1) Provide a cover letter, specifically identifying the submission as a “Claim” submitted under this Article 12 and specifying the requested remedy (e.g., amount of proposed change to Contract Price and/or change to Contract Time).
(2) Provide a summary of each Claim, including underlying facts and the basis for entitlement, and identify each specific demand at issue, including the specific Change Order request (by number and submittal date), and the date of City's rejection of that demand, in whole or in part. (3) Provide a detailed explanation of each issue in dispute. For multiple issues included within a single Claim or for multiple Claims submitted concurrently, separately number and identify each individual issue or Claim, and include the following for each separate issue or Claim:
a. A succinct statement of the matter in dispute, including Contractor’s position and the basis for that position;
b. Identify and attach all documents that substantiate the Claim, including relevant provisions of the Contract Documents, RFIs, calculations, and schedule analysis (see subsection (A), Substantiation, above);
c. A chronology of relevant events; and
d. Analysis and basis for claimed changes to Contract Price, Contract Time, or any other remedy requested.
(4) Provide a summary of issues and corresponding claimed damages. If, by the time of the Claim submission deadline (below), the precise amount of the requested change in the Contract Price or Contract Time is not yet known, Contractor must provide a good faith estimate, including the basis for that estimate, and must identify the date by which it is anticipated that the Claim will be updated to provide final amounts.
(5) Include the following certification, executed by Contractor’s authorized representative:
“The undersigned Contractor certifies under penalty of perjury that its statements and representations in this Claim submittal are true and correct.

Contractor warrants that this Claim submittal is comprehensive and complete as to the matters in dispute, and agrees that any costs, expenses, or delay not included herein are deemed waived.”

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(C) Submission Deadlines.
(1) A Claim disputing rejection of a request for a change in the Contract Time or Contract Price must be submitted within 15 days following the date that City notified Contractor in writing that a request for a change in the Contract Time or Contract Price, duly submitted in compliance with Article 5 and Article 6, has been rejected in whole or in part. A Claim disputing the terms of a unilateral Change Order must be submitted within 15 days following the date of issuance of the unilateral Change Order. These Claim deadlines apply even if Contractor cannot yet quantify the total amount of any requested change in the Contract Time or Contract Price. If the Contractor cannot quantify those amounts, it must submit an estimate of the amounts claimed pending final determination of the requested remedy by Contractor.
(2) With the exception of any dispute regarding the amount of Final Payment, any Claim must be filed on or before the date of Final Payment or will be deemed waived.
(3) A Claim disputing the amount of Final Payment must be submitted within 15 days of the effective date of Final Payment, under Section 8.7, Final Payment.
(4) Strict compliance with these Claim submission deadlines is necessary to ensure that any dispute may be mitigated as soon as possible, and to facilitate cost-efficient administration of the Project. Any Claim that is not submitted within the specified deadlines will be deemed waived by Contractor.

12.3 City’s Response. City will respond within 45 days of receipt of the Claim with a written statement identifying which portion(s) of the Claim are disputed, unless the 45-day period is extended by mutual agreement of City and Contractor or as otherwise allowed under Public Contract Code § 9204. However, if City determines that the Claim is not adequately substantiated pursuant to Section 12.2(A), Substantiation, City may first request in writing, within 30 days of receipt of the Claim, any additional documentation supporting the Claim or relating to defenses to the Claim that City may have against the Claim.
(A) Additional Information. If additional information is thereafter required, it may be requested and provided upon mutual agreement of City and Contractor. If Contractor’s Claim is based on estimated amounts, Contractor has a continuing duty to update its Claim as soon as possible with information on actual amounts in order to facilitate prompt and fair resolution of the Claim. (B) Non-Waiver. Any failure by City to respond within the times specified above will not be construed as acceptance of the Claim, in whole or in part, or as a waiver of any provision of these Contract Documents.

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12.4 Meet and Confer. If Contractor disputes City’s written response, or City fails to respond within the specified time, within 15 days of receipt of City’s response or within 15 days of City’s failure to respond within the applicable 45-day time period under Section 12.3, respectively, Contractor may notify City of the dispute in writing sent by registered or certified mail, return receipt requested, and demand an informal conference to meet and confer for settlement of the issues in dispute. If Contractor fails to dispute City’s response in writing within the specified time, Contractor’s Claim will be deemed waived.
(A) Schedule Meet and Confer. Upon receipt of the demand to meet and confer, City will schedule the meet and confer conference to be held within 30 days, or later if needed to ensure the mutual availability of each of the individuals that each party requires to represent its interests at the meet and confer conference.
(B) Location for Meet and Confer. The meet and confer conference will be scheduled at a location at or near City’s principal office. (C) Written Statement After Meet and Confer. Within ten working days after the meet and confer has concluded, City will issue a written statement identifying which portion(s) of the Claim remain in dispute, if any. (D) Submission to Mediation. If the Claim or any portion remains in dispute following the meet and confer conference, within ten working days after the City issues the written statement identifying any portion(s) of the Claim remaining in dispute, the Contractor may identify in writing disputed portion(s) of the Claim, which will be submitted for mediation, as set forth below.

12.5 Mediation and Government Code Claims.
(A) Mediation. Within ten working days after the City issues the written statement identifying any portion(s) of the Claim remaining in dispute following the meet and confer, City and Contractor will mutually agree to a mediator, as provided under Public Contract Code § 9204. Mediation will be scheduled to ensure the mutual availability of the selected mediator and all of the individuals that each party requires to represent its interests. If there are multiple Claims in dispute, the parties may agree to schedule the mediation to address all outstanding Claims at the same time. The parties will share the costs of the mediator and mediation fees equally, but each party is otherwise solely and separately responsible for its own costs to prepare for and participate in the mediation, including costs for its legal counsel or any other consultants.
(B) Government Code Claims.
(1) Timely presentation of a Government Code Claim is a condition precedent to filing any legal action based on or arising from the Contract.

Compliance with the Claim submission requirements in this Article 12 is a condition precedent to filing a Government Code Claim.

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(2) The time for filing a Government Code Claim will be tolled from the time Contractor submits its written Claim pursuant to Section 12.2, above, until the time that Claim is denied in whole or in part at the conclusion of the meet and confer process, including any period of time used by the meet and confer process. However, if the Claim is submitted to mediation, the time for filing a Government Code Claim will be tolled until conclusion of the mediation, including any continuations, if the Claim is not fully resolved by mutual agreement of the parties during the mediation or any continuation of the mediation.

12.6 Tort Claims. This Article does not apply to tort claims and nothing in this Article is intended nor will be construed to change the time periods for filing tort-based Government Code Claims.

12.7 Arbitration. It is expressly agreed, under Code of Civil Procedure § 1296, that in any arbitration to resolve a dispute relating to this Contract, the arbitrator’s award must be supported by law and substantial evidence.

12.8 Burden of Proof and Limitations. Contractor bears the burden of proving entitlement to and the amount of any claimed damages. Contractor is not entitled to damages calculated on a total cost basis, but must prove actual damages.

Contractor is not entitled to speculative, special, or consequential damages, including home office overhead or any form of overhead not directly incurred at the Project site or any other Worksite; lost profits; loss of productivity; lost opportunity to work on other projects; diminished bonding capacity; increased cost of financing for the Project; extended capital costs; non-availability of labor, material or equipment due to delays; or any other indirect loss arising from the Contract. The Eichleay Formula or similar formula will not be used for any recovery under the Contract. The City will not be directly liable to any Subcontractor or supplier.

12.9 Legal Proceedings. In any legal proceeding that involves enforcement of any requirements of the Contract Documents, the finder of fact will receive detailed instructions on the meaning and operation of the Contract Documents, including conditions, limitations of liability, remedies, claim procedures, and other provisions bearing on the defenses and theories of liability. Detailed findings of fact will be requested to verify enforcement of the Contract Documents. All of the City's remedies under the Contract Documents will be construed as cumulative, and not exclusive, and the City reserves all rights to all remedies available under law or equity as to any dispute arising from or relating to the Contract Documents or performance of the Work.

12.10 Other Disputes. The procedures in this Article 12 will apply to any and all disputes or legal actions, in addition to Claims, arising from or related to this Contract, including disputes regarding suspension or early termination of the Contract, unless and only to the extent that compliance with a procedural requirement is expressly and specifically waived by City. Nothing in this Article is intended to delay suspension or termination under Article 13.

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Article 13 - Suspension and Termination

13.1 Suspension for Cause. In addition to all other remedies available to City, if Contractor fails to perform or correct Work in accordance with the Contract Documents, including non-compliance with applicable environmental or health and safety Laws, City may immediately order the Work, or any portion of it, suspended until the circumstances giving rise to the suspension have been eliminated to City’s satisfaction.
(A) Notice of Suspension. Upon receipt of City’s written notice to suspend the Work, in whole or in part, except as otherwise specified in the notice of suspension, Contractor and its Subcontractors must promptly stop Work as specified in the notice of suspension; comply with directions for cleaning and securing the Worksite; and protect the completed and in-progress Work and materials. Contractor is solely responsible for any damages or loss resulting from its failure to adequately secure and protect the Project. (B) Resumption of Work. Upon receipt of the City’s written notice to resume the suspended Work, in whole or in part, except as otherwise specified in the notice to resume, Contractor and its Subcontractors must promptly re-mobilize and resume the Work as specified; and within ten days from the date of the notice to resume, Contractor must submit a recovery schedule, prepared in accordance with the Contract Document, showing how Contractor will complete the Work within the Contract Time.
(C) Failure to Comply. Contractor will not be entitled to an increase in the Contract Time or Contract Price for a suspension occasioned by Contractor’s failure to comply with the Contract Documents.
(D) No Duty to Suspend. City’s right to suspend the Work will not give rise to a duty to suspend the Work, and City’s failure to suspend the Work will not constitute a defense to Contractor’s failure to comply with the requirements of the Contract Documents.

13.2 Suspension for Convenience. City reserves the right to suspend, delay, or interrupt the performance of the Work in whole or in part, for a period of time determined to be appropriate for City’s convenience. Upon notice by City pursuant to this provision, Contractor must immediately suspend, delay, or interrupt the Work and secure the Project site as directed by City except for taking measures to protect completed or in-progress Work as directed in the suspension notice, and subject to the provisions of Section 13.1(A) and (B) above. If Contractor submits a timely request for a Change Order in compliance with Articles 5 and 6, the Contract Price and the Contract Time will be equitably adjusted by Change Order pursuant to the terms of Articles 5 and 6 to reflect the cost and delay impact occasioned by such suspension for convenience, except to the extent that any such impacts were caused by Contractor’s failure to comply with the Contract Documents or the terms of the suspension notice or notice to resume. However, the Contract Time will only be extended if the suspension causes or will cause unavoidable delay in Final Completion. If Contractor disputes the terms of a Change Order issued for such equitable adjustment due to suspension for

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convenience, its sole recourse is to comply with the Claim procedures in Article

12. 13.3 Termination for Default. City may declare that Contractor is in default of the Contract for a material breach of or inability to fully, promptly, or satisfactorily perform its obligations under the Contract.
(A) Default. Events giving rise to a declaration of default include Contractor’s refusal or failure to supply sufficient skilled workers, proper materials, or equipment to perform the Work within the Contract Time; Contractor’s refusal or failure to make prompt payment to its employees, Subcontractors, or suppliers or to correct defective Work or damage; Contractor’s failure to comply with Laws, or orders of any public agency with jurisdiction over the Project; evidence of Contractor’s bankruptcy, insolvency, or lack of financial capacity to complete the Work as required within the Contract Time; suspension, revocation, or expiration and nonrenewal of Contractor’s license or DIR registration; dissolution, liquidation, reorganization, or other major change in Contractor’s organization, ownership, structure, or existence as a business entity; unauthorized assignment of Contractor’s rights or duties under the Contract; or any material breach of the Contract requirements.
(B) Notice of Default and Opportunity to Cure. Upon City’s declaration that Contractor is in default due to a material breach of the Contract Documents, if City determines that the default is curable, City will afford Contractor the opportunity to cure the default within ten days of City’s notice of default, or within a period of time reasonably necessary for such cure, including a shorter period of time if applicable. (C) Termination. If Contractor fails to cure the default or fails to expediently take steps reasonably calculated to cure the default within the time period specified in the notice of default, City may issue written notice to Contractor and its performance bond surety of City’s termination of the Contract for default. (D) Waiver. Time being of the essence in the performance of the Work, if Contractor’s surety fails to arrange for completion of the Work in accordance with the Performance Bond within seven calendar days from the date of the notice of termination pursuant to paragraph (C), City may immediately make arrangements for the completion of the Work through use of its own forces, by hiring a replacement contractor, or by any other means that City determines advisable under the circumstances. Contractor and its surety will be jointly and severally liable for any additional cost incurred by City to complete the Work following termination, where “additional cost” means all cost in excess of the cost City would have incurred if Contactor had timely completed Work without the default and termination. In addition, City will have the right to immediate possession and use of any materials, supplies, and equipment procured for the Project and located at the Project site or any Worksite on City property for the purposes of completing the remaining Work.
(E) Compensation. Within 30 days of receipt of updated as-builts, all warranties, manuals, instructions, or other required documents for Work installed to date, and delivery to City of all equipment and materials for the Project for which

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Contractor has already been compensated, Contractor will be compensated for the Work satisfactorily performed in compliance with the Contract Documents up to the effective date of the termination pursuant to the terms of Article 8, Payment, subject to City’s rights to withhold or deduct sums from payment otherwise due pursuant to Section 8.3, and excluding any costs Contractor incurs as a result of the termination, including any cancellation or restocking charges or fees due to third parties. If Contractor disputes the amount of compensation determined by City, its sole recourse is to comply with the Claim Procedures in Article 12, by submitting a Claim no later than 30 days following notice from City of the total compensation to be paid by City.
(F) Wrongful Termination. If Contractor disputes the termination, its sole recourse is to comply with the Claim procedures in Article 12. If a court of competent jurisdiction or an arbitrator later determines that the termination for default was wrongful, the termination will be deemed to be a termination for convenience, and Contractor’s damages will be strictly limited to the compensation provided for termination for convenience under Section 13.4, below. Contractor waives any claim for any other damages for wrongful termination including special or consequential damages, lost opportunity costs, or lost profits, and any award of damages is subject to Section 12.8, Burden of Proof and Limitations.

13.4 Termination for Convenience. City reserves the right, acting in its sole discretion, to terminate all or part of the Contract for convenience upon written notice to Contractor.
(A) Compensation to Contractor. In the event of City’s termination for convenience, Contractor waives any claim for damages, including for loss of anticipated profits from the Project. The following will constitute full and fair compensation to Contractor, and Contractor will not be entitled to any additional claim or compensation:
(1) Completed Work. The value of its Work satisfactorily performed as of the date notice of termination is received, based on Contractor’s schedule of values and unpaid costs for items delivered to the Project site that were fabricated for incorporation in the Work;
(2) Demobilization. Demobilization costs specified in the schedule of values, or if demobilizations cost were not provided in a schedule of values pursuant to Section 8.1, then based on actual, reasonable, and fully documented demobilization costs; and
(3) Termination Markup. Five percent of the total value of the Work performed as of the date of notice of termination, including reasonable, actual, and documented costs to comply with the direction in the notice of termination for convenience, and demobilization costs, which is deemed to cover all overhead and profit to date.
(B) Disputes. If Contractor disputes the amount of compensation determined by City pursuant to paragraph (A), above, its sole recourse is to comply with the

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Claim procedures in Article 12, by submitting a Claim no later than 30 days following notice from City of total compensation to be paid by City.

13.5 Actions Upon Termination for Default or Convenience. The following provisions apply to any termination under this Article, whether for default or convenience, and whether in whole or in part.
(A) General. Upon termination City may immediately enter upon and take possession of the Project and the Work and all tools, equipment, appliances, materials, and supplies procured or fabricated for the Project. Contractor will transfer title to and deliver all completed Work and all Work in progress to City. (B) Submittals. Unless otherwise specified in the notice of termination, Contractor must immediately submit to City all designs, drawings, as-built drawings, Project records, contracts with vendors and Subcontractors, manufacturer warranties, manuals, and other such submittals or Work-related documents required under the terms of the Contract Documents, including incomplete documents or drafts.
(C) Close Out Requirements. Except as otherwise specified in the notice of termination, Contractor must comply with all of the following:
(1) Immediately stop the Work, except for any Work that must be completed pursuant to the notice of termination and comply with City’s instructions for cessation of labor and securing the Project and any other Worksite(s).
(2) Comply with City’s instructions to protect the completed Work and materials, using best efforts to minimize further costs. (3) Contractor must not place further orders or enter into new subcontracts for materials, equipment, services or facilities, except as may be necessary to complete any portion of the Work that is not terminated. (4) As directed in the notice, Contractor must assign to City or cancel existing subcontracts that relate to performance of the terminated Work, subject to any prior rights, if any, of the surety for Contractor’s performance bond, and settle all outstanding liabilities and claims, subject to City’s approval.
(5) As directed in the notice, Contractor must use its best efforts to sell any materials, supplies, or equipment intended solely for the terminated Work in a manner and at market rate prices acceptable to City. (D) Payment Upon Termination. Upon completion of all termination obligations, as specified herein and in the notice of termination, Contractor will submit its request for Final Payment, including any amounts due following termination pursuant to this Article 13. Payment will be made in accordance to the provisions of Article 8, based on the portion of the Work satisfactorily completed, including the close out requirements, and consistent with the previously submitted

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schedule of values and unit pricing, including demobilization costs. Adjustments to Final Payment may include deductions for the cost of materials, supplies, or equipment retained by Contractor; payments received for sale of any such materials, supplies, or equipment, less re-stocking fees charged; and as otherwise specified in Section 8.3, Adjustment of Payment Application. (E) Continuing Obligations. Regardless of any Contract termination, Contractor’s obligations for portions of the Work already performed will continue and the provisions of the Contract Documents will remain in effect as to any claim, indemnity obligation, warranties, guarantees, submittals of as-built drawings, instructions, or manuals, record maintenance, or other such rights and obligations arising prior to the termination date.

Article 14 - Miscellaneous Provisions

14.1 Assignment of Unfair Business Practice Claims. Under Public Contract Code § 7103.5, Contractor and its Subcontractors agree to assign to City all rights, title, and interest in and to all causes of action it may have under section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2 (commencing with § 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the Contract or any subcontract. This assignment will be effective at the time City tenders Final Payment to Contractor, without further acknowledgement by the parties.

14.2 Provisions Deemed Inserted. Every provision of law required to be inserted in the Contract Documents is deemed to be inserted, and the Contract Documents will be construed and enforced as though such provision has been included. If it is discovered that through mistake or otherwise that any required provision was not inserted, or not correctly inserted, the Contract Documents will be deemed amended accordingly.

14.3 Waiver. City’s waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of the Contract Documents will not be effective unless it is in writing and signed by City. City’s waiver of any breach, failure, right, or remedy will not be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor will any waiver constitute a continuing waiver unless specified in writing by City.

14.4 Titles, Headings, and Groupings. The titles and headings used and the groupings of provisions in the Contract Documents are for convenience only and may not be used in the construction or interpretation of the Contract Documents or relied upon for any other purpose.

14.5 Statutory and Regulatory References. With respect to any amendments to any statutes or regulations referenced in these Contract Documents, the reference is deemed to be the version in effect on the date that that bids were due.

14.6 Survival. The provisions that survive termination or expiration of this Contract include Contract Section 11, Notice, and subsections 12.1, 12.2, 12.3, 12.4, 12.5,

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and 12.6, of Section 12, General Provisions; and the following provisions in these General Conditions: Section 2.2(J), Contractor’s Records, Section 2.3(C), Termination, Section 3.7, Ownership, Section 4.2, Indemnity, Article 12, Dispute Resolution, and Section 11.2, Warranty.

END OF GENERAL CONDITIONS

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REVISED CONCEPT PLANS

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UNLESS OTHERWISE NOTED ON PLAN.

The play components identified on this plan
are IPEMA certified. (Unless model number
is preceded with *) The use and layout of
these components conform to the
requirements of ASTM F1487. To verify
product certification, visit www.ipema.org

REQUIRED

TOTAL DIFFERENT TYPES OF GROUND LEVEL COMPONENTS

TOTAL ACCESSIBLE GROUND LEVEL COMPONENTS SHOWN

TOTAL ELEVATED COMPONENTS ACCESSIBLE BY TRANSFER REQUIRED

TOTAL ELEVATED COMPONENTS ACCESSIBLE BY RAMP REQUIRED

TOTAL ELEVATED PLAY COMPONENTS
601 7th STREET SOUTH - P.O. BOX 198 PH: 1-800-328-0035 FAX: 1-763-972-6091 DELANO, MINNESOTA 55328

LOOSE FILL MATERIAL
(ENGINEERED WOOD FIBER SUGGESTED)

ACCESSIBLE/PROTECTIVE

SAFETY COMMISSION'S (CPSC)

IT IS THE MANUFACTURER'S OPINION AND

INTENT THAT THE LAYOUT OF THESE COMPONENTS CONFORM WITH THE "HANDBOOK FOR PUBLIC PLAYGROUND SAFETY". U.S. CONSUMER PRODUCT LANDSCAPE STRUCTURES, INC. COPYRIGHT: DESIGNED BY:

DRAWING #:

SYSTEM TYPE:

THIS PLAY AREA DOES CONFORM TO

IT IS THE MANUFACTURERS OPINION THAT
THE A.D.A. ACCESSIBILITY STANDARDS, ASSUMING AN ACCESSIBLE PROTECTIVE SURFACING IS PROVIDED, AS INDICATED, OR WITHIN THE ENTIRE USE ZONE.

THIS PLAY AREA & PLAY EQUIPMENT IS

DESIGNED FOR AGES
CHOOSE A PROTECTIVE SURFACING MATERIAL THAT HAS A CRITICAL HEIGHT VALUE TO MEET THE MAXIMUM FALL HEIGHT FOR THE EQUIPMENT (REF. ASTM F1487 STANDARD CONSUMER SAFETY PERFORMANCE SPECIFICATION FOR PLAYGROUND EQUIPMENT FOR PUBLIC USE, SECTION 8 CURRENT REVISION). THE SUBSURFACE MUST BE WELL DRAINED. IF THE SOIL DOES NOT DRAIN NATURALLY IT MUST BE TILED OR SLOPED 1/8" TO 1/4" PER
FOOT TO A STORM SEWER OR A "FRENCH DRAIN".

THIS CONCEPTUAL PLAN WAS BASED ON
INFORMATION AVAILABLE TO US. PRIOR TO CONSTRUCTION, DETAILED SITE INFORMATION

INCLUDING SITE DIMENSIONS, TOPOGRAPHY EXISTING UTILITIES, SOIL CONDITIONS, AND DRAINAGE SOLUTIONS SHOULD BE OBTAINED, EVALUATED, & UTILIZED IN THE FINAL DESIGN. PLEASE VERIFY ALL DIMENSIONS OF PLAY AREA, SIZE, ORIENTATION, AND LOCATION OF ALL EXISTING UTILITIES, EQUIPMENT, AND SITE FURNISHINGS PRIOR TO ORDERING. SLIDES SHOULD NOT FACE THE HOT AFTERNOON SUN.

TOTAL ELEVATED PLAY COMPONENTS

TOTAL ELEVATED COMPONENTS ACCESSIBLE BY RAMP REQUIRED

TOTAL ELEVATED COMPONENTS ACCESSIBLE BY TRANSFER REQUIRED

TOTAL ACCESSIBLE GROUND LEVEL COMPONENTS SHOWN REQUIRED

TOTAL DIFFERENT TYPES OF GROUND LEVEL COMPONENTS REQUIRED 5-12 AGE 2-5 AGE
40 48
302740

TIDAL WAVE CLIMBER
32" DECK DIFF 80
72 72
271761
ALPINE SLIDE 40
48 16 2432
8 MODULE

TRANSFER
184354
LEFT PB 2-5 YRS
177718 RAIN SOUND WHEEL PANEL 115254

STORE FRONT PANEL
(BELOW DECK)
48 130798 DOUBLE SWIRL SLIDE

LOOP ARCH
122914 MINI SUMMIT CLIMBER
153076
CLIMBER CONICAL 143199
229830

ARCADE CLIMBER
116249
VERT. LADDER 32
24 16
8 MODULE

TRANSFER
152911 RIGHT

TRANSFER
POINT
176077 CROQUET CLIMBER
130798 DOUBLE SWIRL SLIDE 219509 GEOPLEX CLIMBER
115227
ZOO PANEL 307425

FORGE CLIMBER
DB ONLY 16
307433
FOOTPRINT STEPPER 16" 307436

FOOTPRINT BALANCE BEAM
247189 CHILL SPINNER
8 307432
FOOTPRINT STEPPER 8" 307435

FOOTPRINT WOBBLE BOUNCER
307426

FORMA SOL SPINNER
DB ONLY 8
307432
FOOTPRINT STEPPER 8"
307438

FORMA GIGGLE

JIGGLER CLIMBER
307431

FOX DEN HANGOUTS DB ONLY
8 307432
FOOTPRINT STEPPER 8" 307436

FOOTPRINT BALANCE BEAM
8"HEIGHT POD CLIMBER
120710
8 200677
IND. WEE PLANET CLIMBER
8"HEIGHT POD CLIMBER
120710
8 8
307432
FOOTPRINT STEPPER 8" 10"HEIGHT POD CLIMBER
158997 10 16
307433
FOOTPRINT STEPPER 16"10"HEIGHT POD CLIMBER
158997 10
173564 OPTIGEAR PANEL 40

MINI SUMMIT CLIMBER
153076
8 307432
FOOTPRINT STEPPER 8" 307435

FOOTPRINT WOBBLE BOUNCER
193171

SWIGGLEKNOTS NO DECKS
166809

E-POD/SEAT
233059 DIGIRIDER BEAR
166809

E-POD/SEAT
SCALE IN FEET:
0' 5' 10' 20'
60'
45'-1"
41'
39'-9"
2-5 AGE
5-12 AGE
5-12 AGE
5-12 AGE
5-12 AGE
2-5 AGE
2-5 AGE
2-5 AGE
® ™
® ™
182503 WELCOME SIGN
(LSI PROVIDED) 2-5 YEARS
182503 WELCOME SIGN
(LSI PROVIDED) 5-12 YEARS
TRI-K.P.1
K.P.1
8" RISE KICKPLATE
(T.K.P.1) QTY. ( ) 1
6"/8" RISE KICKPLATE
(K.P.1) QTY. ( ) 1
K.P.1 6"/8" RISE KICKPLATE
(K.P.1) QTY. ( ) 1

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Ages 2 - 5 Development Benefits

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© 2023 Kanics Inclusive Design Services, LLC
Sensory Systems Engaged Motor Skills
Cognitive Skills Social Skills
Footprint™ Balance Beam
Visual
Vestibular
Proprioception
Problem Solving
Agility, Balance,
Coordination,
Flexibility,
Motor Planning,
Lower & Core Body Strength
Cooperation
Social Skill Development
Imaginative Play
The Footprint Balance Beam provides an elevated path that children can use to get from one area of the playground to another. It helps children build their balance and motor coordination while they play with their friends. The different lumber colors add visual texture to the play experience.

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© 2023 Kanics Inclusive Design Services, LLC
Sensory Systems Engaged Motor Skills
Cognitive Skills Social Skills
Footprint™ Stepper
Visual
Vestibular
Proprioception
Problem Solving
Agility, Balance,
Coordination,
Flexibility,
Motor Planning,
Lower & Core Body Strength
Cooperation
Social Skill Development
Imaginative Play
The Footprint Steppers in 8”, 16”, or 24” heights help children work on their balance and motor planning skills as they move from one to the next. These are often placed together in a Footprint Stepper trail challenging children to step across different heights as they travel. The different lumber colors add visual texture to the play experience.

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© 2023 Kanics Inclusive Design Services, LLC
Sensory Systems Engaged Motor Skills
Cognitive Skills Social Skills
Forma™ Giggle Jiggler® Climber
Vestibular+
Proprioception
Tactile
Visual
Problem Solving
Balance, Coordination,
Eye-Hand Coordination,
Fine Motor,
Flexibility,
Motor Planning, Core & Upper Body Strength
Cooperation
Social Skill Development
Imaginative Play
The Forma Giggle Jiggler Climber provides a moving platform for one or a group of children to explore balance together. They can sit or stand on this element and rock around working their muscles and challenging their motor coordination to build strong core muscles while they play. They can also explore cause and effect as they rotate the Hourglass Panel. Children will be fascinated to see and hear how spinning the panel impacts the movement and sounds of the beads as they travel through the hourglass.

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© 2023 Kanics Inclusive Design Services, LLC
Sensory Systems Engaged Motor Skills
Cognitive Skills Social Skills
Fox Den™ Hangouts
Vestibular+
Proprioception
Tactile
Visual
Problem Solving
Balance
Coordination
Motor Planning
Core, Lower & Upper Body Strength
Cooperation
Social Skill Development
Imaginative Play
The Fox Den Hangouts allow children and adults a unique place to take a breather on the playground. The design allows the individual to snuggle into the hangouts in multiple positions and gently rock. It creates a fun “time-in” place to calm themselves so that they can head back out to play. They are set at a height for easy transfer from a wheelchair so that all can swing together.

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Agest 5-12 Development Benefits

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© 2021 Kanics Inclusive Design Services, LLC
Sensory Systems Engaged Motor Skills
Cognitive Skills Social Skills
Tidal Wave Climber
Proprioception
Tactile
Vestibular +
Problem Solving
Balance, Coordination,
Flexibility,
Motor Planning,
Core, Lower & Upper Body Strength
Cooperation
Imaginative Play
Social Skill Development
The Tidal Wave Climber is a combination of two different belts that link two decks. The upper belt with its cables provides a wavy moving bridge that will challenge children as they move across it. This improves their balance, flexibility and motor coordination. The lower belt creates a fun place to hang out and rest or watch friends playing. Those who use wheelchairs and have upper body strength can transfer into this lower wave giving them the chance to enjoy the movement of this fun climber.

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© 2021 Kanics Inclusive Design Services, LLC
Sensory Systems Engaged Motor Skills
Cognitive Skills Social Skills
Arcade Climber
Vestibular
Proprioception
Tactile
Problem Solving
Balance
Coordination
Flexibility
Motor Planning
Core, Lower & Upper Body Strength
Cooperation
Social Skill Development
Imaginative Play
The Arcade Climber is a steep angled climber that requires children to work on their motor planning and coordination skills as they play.

It has a platform rung designed into it that provides children with a resting spot as they climb. Here they can rest before continuing or stop and look out over the playground and beyond.

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© 2021 Kanics Inclusive Design Services, LLC
Sensory Systems Engaged Motor Skills
Cognitive Skills Social Skills
Alpine™ Slide
Vestibular+
Proprioception
Problem Solving
Balance
Coordination
Motor Planning
Social Skill Development
The Alpine Slide provides children with a sweeping slide experience due to its scooped turn. The scoop side allows children’s bodies to change position as they slide making them feel like they are on a slide ride to the ground below. This fully engages the child’s vestibular system as they are whisked back to earth.

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Brentwood City CouncilDecember 12, 2023

Brentwood City Council
December 12, 2023