Stonehaven Park Playground Replacement CA 02-26-24 PAYMENT BOND CIP Project No. 352-52456 Page 11
7. Effective Date; Execution. This Bond is entered into and is effective on __________, 2025.
SURETY:
___________________________________
Business Name
s/__________________________________ ______________________________ Date
___________________________________
Name, Title
(Attach Acknowledgment with Notary Seal and Power of Attorney) CONTRACTOR:
Park Planet, a division of Park Associates, Inc.
Business Name
s/__________________________________ ______________________________ Date
___________________________________
Name, Title
APPROVED BY CITY:
City of Brentwood
s/ __________________________________ ______________________________ Date
END OF PAYMENT BOND
Stonehaven Park Playground Replacement CA 02-26-24 PERFORMANCE BOND CIP Project No. 352-52456 Page 12
Performance Bond
The City of Brentwood (“City”) and Park Planet, a division of Park Associates, Inc. (“Contractor”) have entered into a contract for work on the Stonehaven Park Playground Replacement Project, CIP Project No. 352-52456 (“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 $253,081.39 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.
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: __________________________________________________
Stonehaven Park Playground Replacement CA 02-26-24 PERFORMANCE BOND CIP Project No. 352-52456 Page 13
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 ____________________, 2025.
SURETY:
___________________________________
Business Name
s/__________________________________ ______________________________ Date
___________________________________
Name, Title
(Attach Acknowledgment with Notary Seal and Power of Attorney) CONTRACTOR:
Park Planet, a division of Park Associates, Inc.
Business Name
s/__________________________________ ______________________________ Date
___________________________________
Name, Title
APPROVED BY CITY:
City of Brentwood
s/ __________________________________ ______________________________ Date
END OF PERFORMANCE BOND
Stonehaven Park Playground Replacement CA 02-26-24 GENERAL CONDITIONS CIP Project No. 352-52456 Page 14
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.”
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 date of execution of the Contract, of the City’s Standard Plans and Specifications.
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 municipality which has entered into the Contract with Contractor for performance of the Work, acting through its City Council, officers, employees, City Engineer, and any other authorized representatives.
City Engineer means the City Engineer or 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: Contract; Payment and Performance Bonds; General Conditions; Special Conditions, Quote (and attachments); Change Orders, if any; Notice of Award; and Notice to Proceed; and any other documents which are 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. 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 Park Planet, a division of Park Associates, Inc.
Day means a calendar day unless otherwise specified.
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Design Professional means the licensed individual(s) or firm(s) retained by City to provide architectural, engineering, or other design professional 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 their 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 their sole discretion, including Work that was not part of or incidental to the scope of the Work when the Contractor’s Quote was submitted; Work that is substantially different from the Work as described in the Contract Documents when executed; 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.
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, including health and safety requirements.
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 <project name> referenced in the Contract.
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Project Manager means the individual designated by City to oversee and manage the Project on City’s behalf and may include their 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 quote for the Project, dated August 14, 2025, 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.
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 selfperform.
Specifications means the technical, text specifications describing the Project requirements, which are prepared for and incorporated into the Contract by or on behalf of the City, and are included in Contractor’s Quote.
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
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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 their 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 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
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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 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, 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 time-stamped 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 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
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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 one-year 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 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.
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(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 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
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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 City-accepted 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).
(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
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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 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
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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 Articles 5 and 6.)
(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
3.3 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.
3.4 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.
3.5 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.
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3.6 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 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 thirdparty 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 Potential 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
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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 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. This policy does not exclude explosion, collapse, underground excavation hazard, or removal of lateral support. (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.
(4) Pollution Liability Insurance: The pollution liability insurance policy must be issued on an occurrence basis, providing coverage of at least $2,000,000 for all loss arising out of claims for bodily injury, death, property damage, or environmental damage caused by pollution conditions resulting from the Work. (5) Builder’s Risk Insurance: The builder’s risk insurance policy must be issued on an occurrence basis, for all-risk or “all perils” coverage on a 100% completed value basis on the insurable portion of the Project for the benefit of City. (6) 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
(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.
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(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 performance of the Contract. The additional insured endorsement must be provided using ISO form CG 20 10 11 85 or an equivalent form(s) 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. (2) 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. (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 self-insured 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 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 order 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
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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 three-week lookahead 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 five 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 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.
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(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.
(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 “Non-Excusable Delay.” Contractor is not entitled to an extension of Contract Time or any compensation for NonExcusable Delay, or for Excusable Delay that is concurrent with Non-Excusable Delay.
Non-Excusable Delay includes delay caused by:
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(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; (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.
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(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 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 Delay 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 operate as a waiver of City’s right to assess liquidated damages for Non-Excusable Delay.
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(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 due to Contractor’s NonExcusable Delay, City will charge Contractor in the amount specified in the Contract for each calendar 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 Delay 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 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
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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 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 their 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.
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(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.
(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 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.
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(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-to-exceed 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, calculated as the total of the following sums, the cumulative total of which may not exceed the maximum markup rate of 15%:
(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, and 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.
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(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 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 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 as otherwise required to ensure public and worker safety, and to avoid interference with public or private operations or the normal flow of vehicular, bicycle, or pedestrian traffic.
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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 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
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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 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.
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(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 or service that is used solely for the purpose of describing the type of item or service 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 or service 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 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 at all locations during construction and/or fabrication, including at any Worksite, shops, and yards. 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
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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 consultants retained by City, subject to the following exceptions:
(1) Contractor will be responsible for the costs of any subsequent inspections or 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.
(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 or testing 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) or testing required by the Contract Documents 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. Contractor must comply with
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all Laws, including the California Air Resources Board’s In-Use Off-Road Diesel-Fueled Fleets Regulation (13 CCR § 2449 et seq.).
(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 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, landscaping, 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
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or Contract Price, or undertake appropriate cleanup measures without further notice and deduct the cost from any amounts due or to become due to Contractor.
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 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
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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 et seq., which are incorporated by reference herein.
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. (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.
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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, 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.
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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 may be accessed online at: https://www.conservation.ca.gov/smgb/Pages/AB-3098- List.aspx.
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 deduct or 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
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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.
(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 specified or 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 specified or 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 cost 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 of Payment Application) 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
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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 (g) 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.
(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
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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.
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, 1720.3, 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 thereof, for each worker paid less than the applicable prevailing wage rate. Contractor must also pay each
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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 §§ 1771.4, 1776, and 1812 and all implementing regulations, which are fully incorporated by this reference, including requirements for monthly 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 (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
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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.
(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
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may result from, but are not limited to, use 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 non-compliant 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 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.
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(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 coguarantor 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 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
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that it is in its best interest to occupy or make use of the Project, or any portions of it, prior to Final Completion.
(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.
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.
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(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 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:
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“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.”
(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 notify City of the dispute and demand an informal conference to meet and confer 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.
(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.
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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. 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 noncompliance 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
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a recovery schedule, prepared in accordance with the Contract Documents, 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 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.
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(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 Contractor 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 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 demobilization costs 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
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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 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 with 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 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.
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(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 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, 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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Special Conditions
Insurance Requirements. The insurance requirements under Section 4.3 of the General Conditions are modified for this Contract, as set forth below. Except as expressly stated below, all other provisions in Section 4.3 are unchanged and remain in full force and effect.
1.1 Pollution Liability Insurance Waived. The pollution liability insurance policy requirement set forth in subsection 4.3(A)(4) of the General Conditions is hereby waived and does not apply to this Contract.
1.2 Builders Risk Insurance Waived. The builder’s risk insurance policy requirement set forth in subsection 4.3(A)(5) of the General Conditions is hereby waived and does not apply to this Contract.
Stonehaven Park Playground Replacement CA 02-26-24 CONCEPTUAL PLANS/QUOTES CIP Project No. 352-52456 Page 63
Conceptual Plans/Quote
[Intentionally left blank]
STONEHAVEN PARK - OPT 2
SW VIEW R5
FOR KIDS
AGES
5-12
STRUCTURE # R502941CC
PROJECT # PPT25203CDC-2
DATE 9/4/2025 Page 166 of 736
STONEHAVEN PARK - OPT 2
NE VIEW R5
FOR KIDS
AGES
5-12
STRUCTURE # R502941CC
PROJECT # PPT25203CDC-2
DATE 9/4/2025 Page 167 of 736
STONEHAVEN PARK - OPT 2
SW VIEW
FOR KIDS
AGES
5-12
STRUCTURE # SWGRSW23516G
PROJECT # PPT25203CDC-2
DATE 9/4/2025 Page 168 of 736
STONEHAVEN PARK - OPT 2
SW VIEW
STRUCTURE # STA1306
PROJECT # PPT25203CDC-2
DATE 9/4/2025 Page 169 of 736
STONEHAVEN PARK - OPT 2
TOP VIEW
ADA ACCESSIBILITY GUIDELINES - ADAAG CONFORMANCE
ELEVATED ACCESSIBLE RAMP ACCESSIBLE GROUND TYPES
13 13/7 0/0 9/4 5/3
CHILD CAPACITY 136 MAX FALL HEIGHT 84
R5
FOR KIDS
AGES
5-12
GENERAL NOTES
This conceptual plan is based
on information provided prior
to construction. Detailed site
information, including the
following, should be obtained,
evaluated, and utilized in the
final project design. Exact site
dimensions, topography,
existing utilities, soil
conditions and drainage
solutions.
WARNING: Accessible
safety surfacing material is
required beneath and
around this equipment that
has a critical height value
(Fall Height) appropriate
for the highest accessible
part of this equipment.
Refer to the CPSC'S
Handbook For Public
Playground Safety,
Section 4: Surfacing.
STRUCTURE # R502941CC
PROJECT # PPT25203CDC-2
DATE 9/4/2025
Park Planet
MIN. USE ZONE 48' x 36' (14.548m x 10.734m) Page 170 of 736 STONEHAVEN PARK - OPT 2
TOP VIEW
ADA ACCESSIBILITY GUIDELINES - ADAAG CONFORMANCE
ELEVATED ACCESSIBLE RAMP ACCESSIBLE GROUND TYPES
0 0/0 0/0 2/0 1/0
CHILD CAPACITY 4 MAX FALL HEIGHT 0
None
FOR KIDS
AGES
5-12
GENERAL NOTES
This conceptual plan is based
on information provided prior
to construction. Detailed site
information, including the
following, should be obtained,
evaluated, and utilized in the
final project design. Exact site
dimensions, topography,
existing utilities, soil
conditions and drainage
solutions.
WARNING: Accessible
safety surfacing material is
required beneath and
around this equipment that
has a critical height value
(Fall Height) appropriate
for the highest accessible
part of this equipment.
Refer to the CPSC'S
Handbook For Public
Playground Safety,
Section 4: Surfacing.
STRUCTURE # SWGRSW23516G
PROJECT # PPT25203CDC-2
DATE 9/4/2025
Park Planet
MIN. USE ZONE 25' x 31' (7.468m x 9.296m) Page 171 of 736 STONEHAVEN PARK - OPT 2
TOP VIEW
ADA ACCESSIBILITY GUIDELINES - ADAAG CONFORMANCE
ELEVATED ACCESSIBLE RAMP ACCESSIBLE GROUND TYPES
0 0/0 0/0 0/0 0/0
CHILD CAPACITY 0 MAX FALL HEIGHT 0
GENERAL NOTES
This conceptual plan is based
on information provided prior
to construction. Detailed site
information, including the
following, should be obtained,
evaluated, and utilized in the
final project design. Exact site
dimensions, topography,
existing utilities, soil
conditions and drainage
solutions.
WARNING: Accessible
safety surfacing material is
required beneath and
around this equipment that
has a critical height value
(Fall Height) appropriate
for the highest accessible
part of this equipment.
Refer to the CPSC'S
Handbook For Public
Playground Safety,
Section 4: Surfacing.
STRUCTURE # STA1306
PROJECT # PPT25203CDC-2
DATE 9/4/2025
Park Planet
MIN. USE ZONE 0' x 0' (0m x 0m) Page 172 of 736
STONEHAVEN PARK - OPT 2
TOP VIEW (Footings)
ADA ACCESSIBILITY GUIDELINES - ADAAG CONFORMANCE
ELEVATED ACCESSIBLE RAMP ACCESSIBLE GROUND TYPES
13 13/7 0/0 9/4 5/3
CHILD CAPACITY 136 MAX FALL HEIGHT 84
R5
FOR KIDS
AGES
5-12
STRUCTURE # R502941CC
PROJECT # PPT25203CDC-2
DATE 9/4/2025
Park Planet
MIN. USE ZONE 48' x 36' (14.548m x 10.734m) Page 173 of 736 STONEHAVEN PARK - OPT 2
TOP VIEW (Footings)
ADA ACCESSIBILITY GUIDELINES - ADAAG CONFORMANCE
ELEVATED ACCESSIBLE RAMP ACCESSIBLE GROUND TYPES
0 0/0 0/0 2/0 1/0
CHILD CAPACITY 4 MAX FALL HEIGHT 0
None
FOR KIDS
AGES
5-12
STRUCTURE # SWGRSW23516G
PROJECT # PPT25203CDC-2
DATE 9/4/2025
Park Planet
MIN. USE ZONE 25' x 31' (7.468m x 9.296m) Page 174 of 736 STONEHAVEN PARK - OPT 2
TOP VIEW (Footings)
ADA ACCESSIBILITY GUIDELINES - ADAAG CONFORMANCE
ELEVATED ACCESSIBLE RAMP ACCESSIBLE GROUND TYPES
0 0/0 0/0 0/0 0/0
CHILD CAPACITY 0 MAX FALL HEIGHT 0
STRUCTURE # STA1306
PROJECT # PPT25203CDC-2
DATE 9/4/2025
Park Planet
MIN. USE ZONE 0' x 0' (0m x 0m) Page 175 of 736
STONEHAVEN PARK - OPT 2
SITE PLAN
ADA ACCESSIBILITY GUIDELINES - ADAAG CONFORMANCE
ELEVATED ACCESSIBLE RAMP ACCESSIBLE GROUND TYPES
13 13/7 0/0 11/4 5/3 R5
FOR KIDS
AGES
5-12
GENERAL NOTES
This Preliminary Site Plan is
based on measurements that
were provided in the initial
planning phase. All
dimensions must be verified
prior to the submission of a
purchase order. Playcraft
Systems will not be held
responsible for any
discrepancies between actual
dimensions and dimensions
submitted in the planning
phase.
The Minimum Use Zone for a
play structure is based on the
product design at the time of
proposal. Components and
structure designs may be
subject to change which may
affect dimensions. Therefore,
before preparing the site, we
strongly recommend obtaining
final drawings from the factory
(available after the order is
placed and included in the
Assembly Manual).
WARNING: Accessible safety
surfacing material is required
beneath and around this
equipment that has a critical
height value (Fall Height)
appropriate for the highest
accessible part of this
equipment. Refer to the
CPSC'S Handbook For Public
Playground Safety, Section 4:
Surfacing.
PROJECT # PPT25203CDC-2
DATE 9/4/2025
Park Planet
MIN. USE ZONE 64' x 39' (19.204m x 11.823m) Page 176 of 736 Project # PPT25203CDC-2
STONEHAVEN PARK - OPT 2
Bill of Materials
Date 9/4/2025
Item / Part Number Description Qty
[R502941CC]
HS-1004-R Collars 171
A2-2426 Balance Beam (Alligator) 1
A2-2432 Shroom Stepper (Small) 2
GF-7002 Dome Cap, R5 12
S-1012-R5-12ft Post, 12ft R5 2
S-1013-R5-13ft Post, 13ft R5 5
S-1014-R5-14ft Post, 14ft R5 2
S-1017-R5-17ft Post, 17ft R5 5
S-1018-R5-18ft Post, 18ft R5 8
S-1020-R5-20ft Post, 20ft R5 1
S-1021-R5-21ft Post, 21ft R5 1
S-1101-R5 Square Deck 4
S-1102-R5 Tri-Deck 6
S-1105-R5 Half Deck 4
S-1109-R5-T Balcony Deck w/ Telescope 2
S-1112-R Filler, 18in 2
S-1206-24R45 ADA Stairs, 24in Rise w/ Walls 2
S-1209-24-R5 Transfer Station, 36in-L 1
S-1221-3 Climber, Chain Net 30-36in 1
S-1222-5R Climber, Snake 54-60in 1
S-1235-4R Climber, Ladder 42-48in 1
S-1236-3-1282-3 Climber, Erector Rock Climber 36in 1
S-12371-CST54 Castle Wall Climber 54in 1
S-1309-R5 Half Walls (Single, Left) 1
S-1309-R5 Half Walls (Single, Right) 1
S-1310-R5 Transition Wall 2
S-1343-WST Jail Breakout Panel 1
S-15110-R5 Link, Jumbo-Rope (90in) 1
S-16211-60ARCC Castle Archers Crenel Window 1
S-16211-60CANC Castle Cannon Crenel (Tall) 3
S-16211-60TEC-R5 Castle Twister Slide Entry Panel 2
S-16211-ACC-R5 Castle Access Crenel 2
S-16211-BDG Castle Arch Bridge 1
S-16211-STR Castle Store Panel 2
S-16211-TWRB Castle Tower Battlement 9
S-16520-R5I Composer Panel 1
A PlayCore Company
Bill of Materials
(Continued)
STONEHAVEN PARK - OPT 2
Item / Part Number Description Qty
S-1674-JAIL Jail Panel 1
S-1686-R5 Inclusive Panel, Mosaic (Ground) 1
S-1688-R5 Inclusive Maze Panel (Ground) 1
S-1689-VLT-R5G Bank Vault Crawl - Thru Panel 1
S-1710-6-LSR Slide, Twister 72in (L-S-R) 1
S-1710-6-RSL Slide, Twister 72in (R-S-L) 1
S-18018-R5-F Roof, Peaked w/ Flag (HDPE/Steel) 2
S-18021-R5QD14-FR Shade Canopy, 14ft Quad Square (Fire Resistant) 1 S-1820-3R5 Flag - Triangular 3
S-1937-R5 Crunch Handle 1
S-1963-R5 Seat on Post 1
SWGRSW23516G
A2-131410 Inclusive Seat 1
A2-311010 Full Bucket Seat 1
RSW23516G RSW23516G Swing Shade (Single Bay) 1
STA1306
A2-1306 1306 Safety Sign (5-12, Roto) 1
Park Planet
a Division of Park Associates, Inc.
415 Elm Street
Red Bluff CA 96080
Quote# Q25-3918
Stonehaven Park
Stonehaven Park Option #2 UPDATED
Bill To: Quote Date: 10/22/2025
City of Brentwood
150 City Park Way
Brentwood CA 94513
United States
Quote Expires: 11/22/2025
Terms: Net 30dys / Shipment
Quote Total: $253,081.39
Contact Name Contact Phone Contact Email Sales Rep Sales Rep Email Elaine McGurk +19255165357 [email protected] Gary A Kimbrough [email protected] Description Vendor Qty Rate Amount
Stonehaven OPT 2 - REV A
PR-R5
Playground Structure
Round 5" Steel System
SN: R502941CC
Playcraft Systems, Inc 1 $132,215.00 $132,215.00
RSW23516G
Swing Shade (Single Bay)
Playcraft Systems, Inc 1 $9,502.00 $9,502.00
A2-131410
Inclusive Seat
Playcraft Systems, Inc 1 $1,142.00 $1,142.00
A2-311010
Full Bucket Seat
Playcraft Systems, Inc 1 $403.00 $403.00
A2-1306
5-12 Age Appropriate Sign (Roto)
Playcraft Systems, Inc 1 $453.00 $453.00
DISCOUNT
Park Planet Discount
Park Planet Discount
Park Associates dba PARK PLANET 1 ($14,371.50) ($14,371.50) PC - Surcharge
Materials Surcharge
1 $5,749.00 $5,749.00
FREIGHT
PCF
Playcraft Freight
Playcraft Systems, Inc 1 $3,286.00 $3,286.00
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1 City of Brentwood 2025/26 – 2029/30 Capital Improvement Program Project Title: Project #:
Stonehaven Park Playground Replacement 352-52456
Description/Justification:
Replace play equipment in Stonehaven Park to meet current ADA accessibility guidelines and Consumer Product Safety Commission guidelines. Resilient safety surfacing in playground areas will be renovated. Replacement play equipment parts can become unavailable and may create a situation where the playgrounds no longer meet either the current Consumer Product Safety Commission guidelines on safety or the current ADA guidelines. The play equipment at Stonehaven Park was constructed in 2004.
Project Status:
The design phase of this project is anticipated to begin in FY 2025/26.
Supplemental Information:
The City's goal is to bring older park play equipment up to current requirements and standards.
PROJECT EXPENDITURES Prior 2025/26 2026/27 2027/28 2028/29 2029/30 TOTAL 70239 Legal 3,000 $ 3,000
90040 Planning and Design 500 $ 500
90050 Construction 278,390 $ 278,390
TOTAL $ 281,890 $ 281,890
PROJECT FUNDING Prior 2025/26 2026/27 2027/28 2028/29 2029/30 TOTAL 47708 Replacement - Parks and LLAD 281,890 $ 281,890
TOTAL $ 281,890 $ 281,890
PROJECT FINANCING CURRENT PROPOSED
Project Category: Parks and Trails Improvements
Location: 1320 Stonehaven Drive
Project Manager: B. Johnson
Project Priority: 1C - Mandatory
Est. Completion Date: 2025/26
Future Annual
O & M Impact: $0
Public Art
Requirement: Exempt
General Plan Policy: CSF 2-7
CITY COUNCIL AGENDA ITEM NO. F.10
10/28/2025
SUBJECT: Resolution approving a fee waiver for Be Exceptional for FY 2025/2026, in an amount not to exceed $35,000
DEPARTMENT: Parks and Recreation
STAFF: E. Harith Aleem Jr., Parks and Recreation Director Thien Nguyen, Recreation Manager
TITLE/RECOMMENDATION
Adopt a Resolution approving a fee waiver for use of the Brentwood Community Center, Brentwood Senior Activity Center, and the Brentwood Skate Park for inclusive programming and programs designed for persons with disabilities. The fee waiver is requested for FY 2025/26 in an amount not to exceed $35,000.
FISCAL IMPACT
Be Exceptional is requesting a fee waiver in the amount of $35,000 for FY 2025/26.
This is for use of City facilities that includes the Brentwood Community Center, Brentwood Senior Activity Center, and the Brentwood Skate Park. No budget amendment would be needed with an approval of this fee waiver. Fee waivers result in a reduction in revenue to the General Fund, and there are associated staff costs (such as opening/closing/cleaning facilities) that are not reimbursed.
BACKGROUND
The City of Brentwood Parks, Trails, and Recreation Master Plan Update includes several recommendations regarding program accessibility for individuals with disabilities. The recommendations in Section 2.3 of the Master Plan are as follows:
Develop and receive City Council approval of an Inclusion Policy that is committed to following the guidelines set forth by Title VI and the ADA to ensure that all programs, activities, and services, when viewed in their entirety, are readily accessible to and usable by individuals with disabilities. Continue to provide opportunities for individuals with disabilities to participate in inclusive programs as well as programs specifically designed for persons with disabilities.
Coordinate with Contra Costa County to explore options for subsidized transportation to future programming for those with special needs.
CITY COUNCIL AGENDA ITEM NO. F.10
10/28/2025
Expand inclusion programming to allow participants the opportunity for more “hands on” job training classes to improve their potential for finding employment.
Explore potential cooperative agreements with other Contra Costa County communities to provide programming opportunities for the developmentally disabled including summer programs, after school programs, independent living programs, and job training programs specific to youth with disabilities.
The Parks and Recreation Department partners with Be Exceptional, a non-profit organization that provides recreational classes and social events for kids, teens, and adults with special needs. Be Exceptional has been providing activities for individuals with disabilities at the Brentwood Community Center since March 2021. Activities have included dance, tumbling, fitness, cheerleading, social skills, and skateboarding, as well as events such as parties and dances.
As outlined in Policy No. 10-12: Policy and Procedures For Requests for Use of City City Funds (Attachment 3):
Fee waiver and/or fee reduction requests over $5,000 must be approved by City Council. These requests will be brought to Council through a staff report/request prepared by the Department Director. In the event a cumulative total of fees waived reach $5,000 for a single organization in any fiscal year, all further requests require City Council approval.
Staff has reviewed the application and it meets the fee waiver requirements.
CITY COUNCIL STRATEGIC INITIATIVE
Focus Area 5: Parks and Recreation Services
Item 4. Expand and enhance recreation opportunities by increasing programming for seniors, youth, and teens; implementing adaptive recreation a. Complete carry over strategic initiatives
i. Adaptive Recreation programming
PREVIOUS ACTION
Previous Action by the City Council is included on Attachment 1.
CITY COUNCIL AGENDA ITEM NO. F.10
10/28/2025
DATE OF NOTICE
Not Applicable
ENVIRONMENTAL DETERMINATION
Not Applicable.
ALTERNATIVE OPTION(S)
Alternative Options to the staff recommendation:
1. Do not approve staff’s recommendation. Not approving a fee waiver would make it challenging for Be Exceptional to continue to offer their events and classes to clients. The City has worked with Be Exceptional since 2021 and programs such as Exceptionally Fit, Ballet/Jazz, Stage Acting, Exceptional Skate, Holiday Dances, etc. may not be able to continue.
2. Continue item with direction for staff to return with additional information.
ATTACHMENT(S)
1. Previous Action
2. Resolution
3. Policy No. 10-12: Policy and Procedures For Requests for Use of City Funds
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 November 8, 2022, the City Council adopted Resolution No. 2022-140 approving a fee waiver for Be Exceptional for Fiscal Year 2022/23 in an amount not to exceed $25,000.
On February 14, 2023, the City Council adopted Resolution No. 2023-18 approving and adopting the revised City of Brentwood Strategic Plan for FY 2022/23 - FY 2023/24.
On November 14, 2023, the City Council adopted Resolution No. 2023-135 approving a fee waiver for Be Exceptional for Fiscal Year 2023/24 in an amount not to exceed $25,000.
On January 14, 2025, the City Council adopted Resolution No. 2025-05 approving a fee waiver for Be Exceptional for Fiscal Year 2024/25 in an amount not to exceed $25,000.
RESOLUTION NO. 2025-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
BRENTWOOD APPROVING A FEE WAIVER FOR “BE
EXCEPTIONAL” IN AN AMOUNT NOT TO EXCEED $35,000
WHEREAS, Council/Administrative Policy No. 10-12 (‘Policy and Procedures for Requests for Use of City Funds’) states that fee waiver and/or fee reduction requests over $5,000 must be approved by City Council; and WHEREAS, the Parks & Recreation Department partners with Be Exceptional, a non-profit organization that provides recreational classes and social events for kids, teens, and adults with special needs; and
WHEREAS, on November 8, 2022, the City Council adopted Resolution No. 2022-140, approving a fee waiver for Be Exceptional for Fiscal Year 2022/23 in an amount not to exceed $25,000; and
WHEREAS, on November 14, 2023, the City Council adopted Resolution No. 2023-135, approving a fee waiver for Be Exceptional for Fiscal Year 2023/24 in an amount not to exceed $25,000; and
WHEREAS, on January 14, 2025, the City Council adopted Resolution No. 2025-05, approving a fee waiver for Be Exceptional for Fiscal Year 2024/25 in an amount not to exceed $25,000; and
WHEREAS, staff recommends approving a fee waiver for Be Exceptional for Fiscal Year 2025/26 in an amount not to exceed $35,000 in order to continue to expand opportunities for individuals with disabilities to participate in inclusive programs, as well as programs specifically designed for persons with disabilities.
NOW, THEREFORE, BE IT RESOLVED that the City Council approves a fee waiver for Be Exceptional for use of the Brentwood Community Center, the Brentwood Senior Activity Center, and the Brentwood Skate Park in an amount not to exceed $35,000 for Fiscal Year 2025/26.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 28th day of October 2025 by the following vote:
COUNCIL/ADMINISTRATIVE POLICY
Subject:
Policy and Procedures For Requests for
Use of City Funds
Policy No: 10-12 Date: August 9, 2022
Resolution No: 2022-101 Page 1 of 6
________________________________________________________________________
CITY OF BRENTWOOD
PURPOSE
The City of Brentwood recognizes the value of partnering with other agencies and organizations in providing services that benefit the community and its residents. To that end, non-profit agencies, intergovernmental agencies or community groups that provide community benefit as approved by the City Manager or designee may be granted a reduction and/or waiver of fees that are included in the approved Cost Allocation Plan for use of City property, such as City buildings, building maintenance or use of ball fields. Certain fees for permits, crowd control and solid waste services may also be waived. In an additional effort to support those organizations that provide valuable community services for the public benefit, the following policy has been established to determine when consideration will be given for requests for use of City funds, and any limitations associated with those requests.
POLICY
Priorities and Requirements:
Fee waivers and/or reductions or donations are primarily made to local organizations based in the City of Brentwood. Agencies based in neighboring communities that serve a significant number of City of Brentwood residents may also apply. National agencies will most likely not be considered. Fee waivers and/or reductions or donations are made only to organizations as described within this Policy.
Applications for specific programs, events, equipment needs or general operational support will receive special consideration if they fall under one of the Council Two-Year Strategic Initiatives. The City Council Two-Year Strategic Plan that contain these goals can be found on the Internet under “City Council”.
Special consideration will be given to events for which matching funds have been secured.
Requests for funding must be made in writing by using the application form.
Donation and Fee Waiver and/or Fee Reduction Requests:
Requests are made through completion of a “Request for Fee waiver and/or Fee Reduction/Donation” application. Requests are considered on a case-by-case basis as outlined in this document.
Donations and Fee Waiver and/or Fee Reduction Requests will not be granted for the following expenses:
Office or administrative overhead/staff salaries of the requesting organization.
With the exception of: Contra Costa County Library, Delta Community Services Inc. and Contra Costa County Senior Nutrition Program as approved by the City Council.
COUNCIL/ADMINISTRATIVE POLICY
Subject:
Policy and Procedures For Requests for
Use of City Funds
Policy No: 10-12 Date: August 9, 2022
Resolution No: 2022-101 Page 2 of 6
________________________________________________________________________
CITY OF BRENTWOOD
Capital Equipment or Capital Projects, which includes the purchase or construction of fixed assets, such as land, buildings and any permanent improvements.
Rental of space other than City owned or operated facilities.
Request for Fee Waiver and/or Fee Reduction Application Procedures Fee waiver requests under $5,000 for the use of City facilities, equipment, and/or services for a special event held on, or impacting, public right of way may be waived by the respective Department Director or his/her designee. Fee waiver and/or fee reduction requests over $5,000 must be approved by City Council. These requests will be brought to Council through a staff report/request prepared by the Department Director. In the event a cumulative total of fees waived reach $5,000 for a single organization in any fiscal year, all further requests require City Council approval. ALL fee waiver and/or fee reduction requests must be made in writing by using the application form and must fall under one of the following categories:
Intergovernmental Cooperation
Department Sponsored Program
Financial Hardship / Non-Profit
Private Community Benefit
Fees may be waived and/or reduced for events and programs if the Director determines that all of the following criteria are met:
1. The organization is a non-profit organization as described by the Internal Revenue Service Section [Example Codes 501(c)(3), 501(c)(6)], or is an intergovernmental agency providing service within the City of Brentwood or community groups that provide community benefit as approved by the City Manager or designee.
2. The organization provides proof it is a valid non-profit or community service organization serving the citizens of Brentwood;
3. The imposition of fees would create a financial hardship on the organization or would have a detrimental effect upon the services provided to the public;
4. The service provided by the City is within the scope of services normally provided by the respective Department;
5. Appropriate recognition as co-sponsor or partner of the event or program is provided for the City of Brentwood on all promotional materials and at the event or program. All promotional materials representing the City must follow the graphic standards guidelines;
6. The program or event is determined by City Council, the City Manager or the appropriate Department Director to provide a public benefit and be of significant value to the community or to a significant portion of its residents;
COUNCIL/ADMINISTRATIVE POLICY
Subject:
Policy and Procedures For Requests for
Use of City Funds
Policy No: 10-12 Date: August 9, 2022
Resolution No: 2022-101 Page 3 of 6
________________________________________________________________________
CITY OF BRENTWOOD
7. All resources provided by the City in sponsorship of the event must be provided for within the Department’s current budget allocations, without a reduction of services;
8. The event or program complies with the City Council Administrative Policy, 20- 23 that prohibits unlawful workplace discrimination and harassment. Whether the event or program is in compliance with the City’s policy will be determined by the appropriate Department Director and may be appealed pursuant to the terms of this Policy;
9. It is determined that the proposed event or program will have no significant impacts on the facilities or department activities, that the applicant will provide volunteer services and materials to mitigate any impacts created by the event or program, or that the impacts are adequately offset by the public benefit provided by the program or event;
10. Contractor or event sponsor shall hold harmless, defend and indemnify the City of Brentwood (City) and its officers, officials, employees, and volunteers from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with contractor’s or event sponsor’s performance or work hereunder or its failure to comply with any of its obligations contained in the agreement, except such loss or damage which was caused by the sole negligence or willful misconduct of the City. A hold harmless agreement form is included within the application and shall be signed by the applicant and/or event sponsor/contractor.
11. A certificate of insurance or statement of self-insurance must be provided by the applicant. Minimum limits of insurance are $1,000,000 for General Liability and Automobile Liability. Workers' Compensation and Employer's Liability limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if organization has no employees. In most cases, the insured party will need to supply an endorsement naming the City of Brentwood as additional insured. This documentation must be provided to the City at least fourteen (14) business days prior to the start of the event.
Any exceptions to the insurance requirement must be approved in writing by the Director of Human Resources/Risk Manager or designee.
12. Scheduling and use of facilities and events are subject to availability of requested facilities and do not have preference over City programs and activities or previous commitments to outside parties.
13. Reasonable steps shall be made by the applicant to minimize impacts to City facilities, programs, and residents.
14. Failure to abide by the rules and procedures as set forth in this document will result in the respective applicant being denied for funding and ineligible to request future fee waiver and/or fee reductions or donations for one year, at
COUNCIL/ADMINISTRATIVE POLICY
Subject:
Policy and Procedures For Requests for
Use of City Funds
Policy No: 10-12 Date: August 9, 2022
Resolution No: 2022-101 Page 4 of 6
________________________________________________________________________
CITY OF BRENTWOOD
which point an application for funding may be requested in accordance with this Policy.
Request for Donation Application Procedures
Donation requests under $1,000 may be approved by the respective Department Director or his/her designee. Donation requests over $1,000 must be approved by City Council. These requests will be brought to Council through a staff report/request prepared by the Department Director. In the event a cumulative total of donations reach $1,000 for a single organization in any fiscal year, all further requests require City Council approval. ALL requests for a donation of funds from the City of Brentwood must be made in writing to the appropriate department Director (the department providing the waiver and/or donation) using the application form. Staff will submit their recommendation for approval or denial to City Council via a staff report, provided the request meets the following criteria. All requests will be considered on a case-by-case basis, following the standards below:
For all donation requests, the following standards will apply:
1. Good cause exists that a donation is necessary or an activity/event will not take place. This includes a clearly stated public purpose and public benefit of the event and request, identifying the target population who will be served and how this relates to support of City funds.
2. Applicant must demonstrate it has the managerial and fiscal competence to complete the project/event and give evidence that it has pursued other sources of financial support.
3. If the organization or purpose of the event/activity is for a population greater than the City of Brentwood City limits, evidence must be given as to how funds are secured for those who live outside the City limits.
4. The event or program complies with City Council Administrative Policy, 20-23 that prohibits unlawful workplace discrimination and harassment. Whether the event or program complies with the City’s policy will be determined by the appropriate Department Director and may be appealed pursuant to the terms of this Policy.
5. A hold harmless agreement form is included within the application and shall be signed by the applicant and/or event sponsor/contractor. Contractor or event sponsor shall hold harmless, defend and indemnify the City of Brentwood (City) and its officers, officials, employees and volunteers from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with contractor’s or event sponsor’s performance or work hereunder or its failure to comply with any of its obligations contained in the agreement, except such loss or damage which was caused by the sole negligence or willful misconduct of the City.
COUNCIL/ADMINISTRATIVE POLICY
Subject:
Policy and Procedures For Requests for
Use of City Funds
Policy No: 10-12 Date: August 9, 2022
Resolution No: 2022-101 Page 5 of 6
________________________________________________________________________
CITY OF BRENTWOOD
6. A certificate of insurance or statement of self-insurance must be provided by the applicant.
Minimum limits of insurance are $1,000,000 for General Liability and Automobile Liability. Workers’ Compensation and Employer’s Liability limits as required by the California Labor Code and Employer’s Liability limits of $1,000,000 per accident for bodily injury. Workers’ Compensation and Employer’s Liability insurance will not be required if organization has no employees. In most cases, the insured party will need to supply an endorsement naming the City of Brentwood as additional insured. This documentation must be provided to the City at least fourteen (14) business days prior to the start of the event.
Any exceptions to the insurance requirement must be approved in writing by the Director of Human Resources/Risk Manager or designee.
7. Scheduling and use of facilities and events are subject to availability of requested facilities and do not have preference over City programs and activities or previous commitments to outside parties.
8. Reasonable steps shall be made by the applicant to minimize impacts to City facilities, programs, and residents.
9. Within 30 days of completion of any event in which a donation was received, the applicant will provide a written report to the respective Director of the event, to include at a minimum: number of participants; event revenue and expenses; copies of all publicity of the event; any benefit to the community and an accounting of where/when/how the proceeds of the event will be dispersed.
10. Failure to abide by the rules and procedures as set forth in this document will result in the respective applicant being denied for funding and ineligible to request future fee waiver and/or fee reductions or donations.
NOTE: Economic Development Grants may be applied for separately, using the Economic Development Program Grant Application form. Contact the Economic Development Division, at (925) 516-5441 for additional information.
City Council Member/Family Donation, Fee Waiver and/or Fee Reduction Requests
No City Donations, Fee Waiver, and/or Fee Reduction shall be available to any of the following individuals or entities:
1. The Mayor or any City Council Member (individually, each being an “Elected Official”)
2. Any Elected Official’s spouse or registered domestic partner
3. Any Elected Official’s dependent children
COUNCIL/ADMINISTRATIVE POLICY
Subject:
Policy and Procedures For Requests for
Use of City Funds
Policy No: 10-12 Date: August 9, 2022
Resolution No: 2022-101 Page 6 of 6
________________________________________________________________________
CITY OF BRENTWOOD
4. Any organization for which individuals listed in 1-3 above either a. Serve on the board of directors or other governing body or b. Receive any financial benefit
Appeals
All decisions of the Department Director may be appealed to the City Manager for review. All appeals must be made in writing within ten (10) days following a determination or denial of a request. The City Manager’s decision will be final.
Auditing
Staff will provide to the Finance Division all pertinent documentation required to support the Donation, Fee Waiver, and/or Fee Reduction. Finance Division staff will provide a yearly report to the City Council in September each year regarding all fee waivers and/or fee reductions and donations that have been approved or implemented during the previous fiscal year.
CITY COUNCIL AGENDA ITEM NO. F.11
10/28/2025
SUBJECT: A Resolution approving Amendment No. 1 to the Affordable Housing Agreement for the Orchard Grove (Subdivision 9535) Project
DEPARTMENT: Community Development Department
STAFF: Alexis Morris, Community Development Director
Sylvia Elias, Housing Program Manager
TITLE/RECOMMENDATION
Adopt a resolution approving and authorizing the City Manager or designee to execute Amendment No. 1 to the Affordable Housing Agreement (the “Original Agreement”) with Shea Homes L.P. for the Orchard Grove (Subdivision 9535) project (the “Project”).
On September 13, 2022, the Brentwood City Council approved Resolution No. 2022- 114, thereby adopting a Mitigated Negative Declaration for the Project, prepared in accordance with the California Environmental Quality Act (“CEQA,” codified at Public Resource Code Section 21000, et seq., and as further governed by the State CEQA Guidelines, found at 14 CCR 15000, et seq.).
FISCAL IMPACT
There is no fiscal impact to approving the amendments to the Affordable Housing Agreement. The corrected Exhibits A and B will reference the correct lots and the location of affordable units for sale. The constructed affordable units will be sold to income qualifying persons/families.
BACKGROUND
The Orchard Grove subdivision is located in the vicinity east of Adams Lane, north of the intersection of Lone Oak Road and Gracie Lane (Assessor’s Parcel Number 016- 040-005).
Shea Homes’ application for this project was deemed complete on May 26, 2020, and is thus subject to the affordable housing ordinance (Ordinance No. 909) that was in place at that time. Ordinance No. 909 required developers of residential
CITY COUNCIL AGENDA ITEM NO. F.11
10/28/2025
developments of twenty-five (25) or more lots to fulfill an affordable housing obligation of 2% of the total number of dwelling units as affordable units.
On September 13, 2022, the Brentwood City Council approved Shea Homes’ application for a vesting tentative subdivision map, including a density bonus (VTSM 9535); a design review permit for forty-five (45) market rate units and six (6) affordable duet units (DR No. 20-003); and the related Mitigated Negative Declaration, prepared for CEQA purposes.
On November 14, 2023, the City Council approved the original affordable housing agreement, which among other things, provided the affordable housing requirement and identification of the affordable housing units for the Orchard Grove (Subdivision 9535) project.
After the execution of the Original Agreement, certain exhibits attached to the Original Agreement were discovered to contain clerical or typographical errors that did not accurately reflect the intent of the City and Developer at the time of execution.
Specifically, the Legal Description (Original Agreement Exhibit A) and the Schedule of Construction and Location of Restricted Units (Original Agreement Exhibit B) referenced incorrect lot numbers for the affordable units.
The City and Developer desire to correct these errors and execute an amendment to the Original Agreement to replace the erroneous exhibits with corrected exhibits that accurately reflect the affordable housing lots. Corrected exhibits are included with Attachment 2, which states correct lot numbers of affordable units.
CITY COUNCIL STRATEGIC INITIATIVE
Strategic Initiative 4.4: Provide a diversity of housing opportunities, including equitable distribution of affordable housing for all socio-economic segments of the Brentwood community
PREVIOUS ACTION
Previous Action by the City Council is included on Attachment 1.
DATE OF NOTICE
Not applicable.
CITY COUNCIL AGENDA ITEM NO. F.11
10/28/2025
ENVIRONMENTAL DETERMINATION
On September 13, 2022, the Brentwood City Council approved Resolution No. 2022- 114, thereby adopting a Mitigated Negative Declaration for the Project, prepared in accordance with the California Environmental Quality Act (“CEQA,” codified at Public Resource Code Section 21000, et seq., and as further governed by the State CEQA Guidelines, found at 14 CCR 15000, et seq.). The proposed modifications to the affordable housing agreement make no substantive changes to the Project and do not trigger any further or additional environmental review.
ATTACHMENT(S)
1. Previous Action
2. Amendment No. 1 to Affordable Housing Agreement for Orchard Grove
3. Exhibits to Amendments No. 1
4. Original Orchard Affordable Housing Agreement
5. Resolution
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.
The City entered into an affordable housing agreement with Shea Homes L.P. for the Orchard Grove (Subdivision 9535) property, dated November 28, 2023, and recorded in the Contra Costa Official Records on January 8, 2024 as Document No. 2024- 000198.
The agreement contains terms related to the development of affordable housing at the property located in the vicinity east of Adams Lane, north of the intersection of Lone Oak Road and Gracie Lane (Subdivision 9535) and identified as the Orchard Grove Property, Assessor’s Parcel Number 016-040-005.
Recording Requested by
and When Recorded Return to:
City of Brentwood )
150 City Park Way )
Brentwood, California 94513 )
Attention: Housing Manager )
(Space Above This Line for Recorder's Use Only)
[Exempt from recording fee per Gov. Code §27383]
AMENDMENT NO. 1 TO AFFORDABLE HOUSING AGREEMENT
ORCHARD GROVE (SUBDIVISION 9535)
Shea Homes L.P.
This “Amendment No. 1” is entered into and effective as of the_____day of _______________________ 2025, amending the agreement dated November 28, 2023 and recorded in the Contra Costa Official Records on January 8, 2024 as Document No. DOC-2024-0001989 (the "Original Agreement") by and between the City of Brentwood, a municipal corporation of the State of California ("City"), and Shea Homes Limited Partnership a California Limited Partnership ("Developer") (collectively, the "Parties").
RECITALS
A. The Original Agreement contains terms related to the development of affordable housing at the property located in the vicinity east of Adams Lane, north of the intersection of Lone Oak Road and Gracie Lane (Subdivision 9535) and identified as the Orchard Grove Property, Assessor's Parcel Number 016-040-005.
B. The Developer will construct fifty-one (51) units, including forty-five (45) single family detached homes and six (6) affordable duet units, ("Units") and appurtenant landscaping and on-site improvements on the site (hereinafter referred to as the "Project"). As part of the Project and the Project Approvals, Developer has agreed to restrict the duets as affordable Units, including five (5) Units (ten percent (10%) of the Units) to be affordable and sold to Moderate Income Households (the "Moderate Income Units") and one (1) Unit (two percent (2%) of the Units) to be affordable and sold to Low Income Households (the "Low Income Units"). The Moderate Income Units and Low Income Units will also be referred to as "Restricted Units." The remaining forty-five (45) Units shall be referred to as the "Non-Restricted Units."
C. The Original Agreement was approved by the Brentwood City Council on November 14, 2023, and provided, among other things, for the identification of those affordable housing units and restrictions in the exhibits attached thereto.
D. Subsequent to the execution of the Agreement, the Parties discovered that certain exhibits attached to the Original Agreement contained clerical or typographical errors that did not accurately reflect the intent of the Parties at the time of execution. Specifically, the Legal Description (Original Agreement Exhibit A) and the Schedule of Construction and, Location of Restricted Units (Original Agreement Exhibit B) reference incorrect lot numbers for the affordable units. The Development Plan map included with Exhibit B shows the correct location of the affordable duet units.
E. The Parties desire to remediate these errors and execute an amendment to the Original Agreement to replace the erroneous exhibits with corrected exhibits that accurately reflect the affordable housing lots. . This Amendment No. 1, together with the Original Agreement, are known as the “Agreement”.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, the Parties agree as follows:
1. Exhibit A attached to the Original Agreement, which is the legal description of the property, is hereby deleted in its entirety and replaced with the amended Exhibit A attached hereto and incorporated herein by reference.
2. Exhibit B attached to the Original Agreement, which is the schedule of construction and location of the restricted units, is hereby deleted in its entirety and replaced with the amended Exhibit B attached hereto and incorporated herein by reference.
3. Except as amended herein, all other provisions of the Agreement shall remain in full force and effect.
4. The individuals executing this Amendment and the instruments referenced in it on behalf of Developer each represent and warrant that they have the legal power, right and actual authority to bind Developer to the terms and conditions of this Amendment No. 1.
IN WITNESS WHEREOF, the City and the Developer have caused this instrument to be executed on their behalf by their respective officers thereunto duly authorized.
CITY: DEVELOPER:
THE CITY OF BRENTWOOD SHEA HOMES, L.P., a Limited Partnership a California Limited Partnership
By:______________________________ By:______________________________ Name: Darin Gale Name: ___________________________
Its: Interim City Manager Its: ___________________________ Date: __________________________ Date: ____________________________
By: _______________________________
ATTEST: Name: ____________________________
Its: _____________________________
By: ______________________________ Date: _____________________________ Name: Amanda McVey
Its: City Clerk
APPROVED AS TO FORM:
By: ______________________________
Name: Katherine Wisinski
Its: City Attorney
SIGNATURES MUST BE NOTARIZED
RESOLUTION NO. 2025-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
BRENTWOOD APPROVING AND AUTHORIZING THE CITY
MANAGER OR DESIGNEE TO EXECUTE AMENDMENT NO. 1 TO
THE AFFORDABLE HOUSING AGREEMENT WITH SHEA HOMES
L.P. FOR THE ORCHARD GROVE (SUBDIVSION 9535) PROJECT
WHEREAS, the Orchard Grove (Subdivision 9535) project is located east of Adams Lane and north of the intersection of Lone Oak Road and Gracie Lane (Assessor’s Parcel Number 016-040-005); and
WHEREAS, on May 26, 2020, the application filed by Shea Homes L.P. (Developer) was deemed complete for this project, and is thus subject to the requirements of the City of Brentwood’s affordable housing ordinance in effect at that time (Ordinance No. 909); and
WHEREAS, Ordinance No. 909 required developers of residential developments of twenty-five (25) or more lots to fulfill an affordable housing obligation of 2% of the total number of dwelling units as affordable units; and WHEREAS, the Developer has elected to provide six (6) affordable units (duet units) total comprising five (5) units affordable to moderate-income households, thus qualifying for processing under the State’s Density Bonus Law, and one (1) unit affordable to a low-income household, as required by Ordinance No. 909; and WHEREAS, on September 13, 2022, pursuant to Resolution No. 2022-115, the Brentwood City Council approved Developer’s application for a vesting tentative subdivision map, including a density bonus (VTSM 9535), and pursuant to Resolution No. 2022-116 the Brentwood City Council approved Developer’s application for a design review permit for forty-five (45) market rate units and six (6) affordable duet units (DR No. 20-003), and pursuant to Resolution No. 2022-114, the Brentwood City Council adopted the related Mitigated Negative Declaration, prepared in accordance with Public Resource Code Section 21000, et seq.; and
WHEREAS, the City entered into an affordable housing agreement (“Original Agreement”) with Shea Homes L.P. for the Orchard Grove (Subdivision 9535) property, dated November 28, 2023, and recorded in the Contra Costa Official Records on January 8, 2024 as Document No. 2024-000198; and WHEREAS, subsequent to the execution of the Original Agreement, it was discovered that certain exhibits attached to the Original Agreement contained clerical or typographical errors that did not accurately reflect the intent of the City and Developer at the time of execution. Specifically, the Legal Description (Original Agreement Exhibit A) and the Schedule of Construction and Location of Restricted Units (Original Agreement Exhibit B) reference incorrect lot numbers for the affordable units; and
WHEREAS, the City and Developer desire to correct these errors and execute an amendment to the Original Agreement to replace the erroneous exhibits with corrected exhibits that accurately reflect the affordable housing lots; and WHEREAS, an amendment to the Original Agreement has been prepared and is now presented to the City Council for approval in order to correct Exhibits A and B, which reference correct lots and location of affordable units for sale.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brentwood does hereby approve Amendment No. 1 to the affordable housing agreement for the Orchard Grove (Subdivision 9535) project.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 28th day of October 2025 by the following vote:
CITY COUNCIL AGENDA ITEM NO. G.1
10/28/2025
SUBJECT: An Ordinance Amending Title 15 (Building and Construction) Chapters 15.04 and 15.06 of the Brentwood Municipal Code DEPARTMENT: Community Development
STAFF: Alexis Morris, Director of Community Development Kenneth Murphy, Chief Building Official
TITLE/RECOMMENDATION
Waive the first reading and introduce an Ordinance Adopting by Reference Portions of the 2025 Edition of the California Code of Regulations Title 24 (California Building Standards Code) with Local Amendments, Amending Chapter 15.04 and Amending and Adding to Chapter 15.06 of the Brentwood Municipal Code, and Making the Required Findings of Local Climatic, Geological, and Topographical Conditions. The adoption of the ordinance is not a project under the California Environmental Quality Act (“CEQA,” codified at Public Resources Code §§ 21000, et seq., as further governed by the State CEQA Guidelines, found at 14 CCR §§ 15000, et seq.) pursuant to 14 CCR §§ 15358 and 15378 because it has no potential for resulting in physical change to the environment, directly or indirectly. Further, even if considered a project, the adoption of this ordinance is exempt under CEQA pursuant to 14 CCR § 15061(b)(3) because it can be seen with certainty that there is no possibility the adoption of this ordinance will have a significant effect on the environment.
FISCAL IMPACT
There is no fiscal impact associated with the adoption of this ordinance amending Brentwood Municipal Code Chapters 15.04 and 15.06, other than staff time to prepare the ordinance.
BACKGROUND
Like all cities in California, Brentwood is subject to the California Building Standards Code. Unless a city affirmatively adopts the California Building Standards Code every three years when they are updated by the State, the codes become effective automatically for that city without amendments and certain appendices. However, upon the making of certain findings, cities are able to amend or exempt themselves from provisions of the California codes, including the specific volumes, amendments and appendices of the California Building Standards Code.
The State recently updated the standards, as provided in the 2025 Edition of the California Building Standards Code, which take effect on January 1, 2026. The
CITY COUNCIL AGENDA ITEM NO. G.1
10/28/2025
proposed ordinance adopts, by reference, specific volumes, amendments and appendices of the 2025 Edition of the California Building Standards Code. The volumes and appendices were selected to comply with California law, and to include appendices of the California Building Standards Code.
Findings
Under Health and Safety Code sections 17958.5 and 17958.7, a city may adopt modifications to the California Building Standards Code, but only if it first adopts findings that the proposed modifications are reasonably necessary because of local climatic, geological, or topographical conditions. Under this authority, the proposed ordinance would extend an amendment to the 2025 California Plumbing Code section 1208.5 as follows:
Amendment 1: Due to high levels of acid (pH) in the native soil and soil that has been imported for fill, it has been discovered to be highly corrosive on metallic piping placed in the ground. With high levels of pH in the soil, metallic pipes exposed to the soil fail over time. Therefore, a modification to the 2025 California Plumbing Code restricts the use of metallic gas pipes installed underground. Since not all areas contain a high level of pH, an exception to this restriction would be permitted if a soils report indicating an acceptable level of pH is present that will not adversely affect metallic gas pipes in the ground.
California Building Standards Code Appendices
The California Building Standards Code appendices are not part of each California Building Standards Code unless specifically adopted by the State or the City. Under the proposed ordinance, the City would adopt the following appendices:
California Building Code Part 2 volumes 1 and 2 including:
o Appendix I, Patio Covers
o Appendix J, Grading
o Appendix L, Earthquake Recording Instrumentation
o Appendix P, Sleeping Lofts
o Appendix Q, Emergency Housing
California Residential Code Part 2.5, including:
o Appendix BF, Patio Covers
o Appendix BJ, Strawbale Construction
o Appendix CI, Swimming Pool Safety Act
o Appendix CJ, Emergency Housing
CITY COUNCIL AGENDA ITEM NO. G.1
10/28/2025
California Mechanical Code Part 4, including:
o Appendix B, Procedures to be followed to place gas equipment in operation o Appendix C, Installation and testing of oil (liquid) fuel-fired equipment California Plumbing Code Part 5, including:
o Appendix A, Recommended Rules for Sizing the Water Supply System o Appendix B, Explanatory Notes on Combination Waste and Vent Systems o Appendix D, Sizing Storm Water Drainage Systems
o Appendix H, Private Sewage Disposal Systems
o Appendix I, Installation Standards
o Appendix J, Combination of Indoor and Outdoor Combustion Air and Ventilation Opening Design
California Existing Building Code Part 10 including:
o Appendix A, Guidelines for the Seismic Retrofit of Existing Buildings Next Steps
If the City Council moves forward with the ordinance as recommended, a second public hearing will be scheduled for November 12, 2025.
CITY COUNCIL STRATEGIC INITIATIVE
Not Applicable
PREVIOUS ACTION
Previous Action by the City Council is included on Attachment 1.
DATE OF NOTICE
The City of Brentwood published a public hearing notice in the Brentwood Press on October 17, 2025.
ENVIRONMENTAL DETERMINATION
The adoption of the ordinance is not a project under the California Environmental Quality Act (“CEQA,” codified at Public Resources Code §§ 21000, et seq., as further governed by the State CEQA Guidelines, found at 14 CCR §§ 15000, et seq.) pursuant to 14 CCR §§ 15358 and 15378 because it has no potential for resulting in physical change to the environment, directly or indirectly. Further, even if considered a project, the adoption of this ordinance is exempt under CEQA pursuant to 14 CCR § 15061(b)(3) because it can be seen with certainty that there is no possibility the adoption of this ordinance will have a significant effect on the environment.
CITY COUNCIL AGENDA ITEM NO. G.1
10/28/2025
ALTERNATIVE OPTIONS
Alternative options to the staff recommendation:
1. Do not approve staff’s recommendation.
2. Modify staff’s recommendation based on legally defensible findings.
3. Continue item with direction for staff to return with additional information.
ATTACHMENT(S)
1. Previous Action
2. 2025 California Building Standards Code Adoption Ordinance
3. Contra Costa County Fire Protection District Ordinance 2025-14
4. Contra Costa County Fire Protection District Ordinance 2025-15
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 May 10, 2022, the City Council introduced and waived the first reading of proposed Ordinance No. 1038, Amending Title 15 (Buildings and Construction) chapter 15.06 of the Brentwood Municipal Code, adopting by reference the California Code of Regulations, Title 24, Part 9 (The California Fire Code), as amended by Contra Costa Fire Protection District Ordinance 2019-37, including findings supporting amendments, and set a public hearing for May 24, 2022.
On May 24, 2022, the City Council adjourned the meeting to a special meeting on May 26, 2022, due to a large-scale blackout in the City of Brentwood. The City Council did not continue the second reading of Ordinance No. 1038 to a date certain.
On May 26, 2022, the City Council adopted an Interim Urgency Ordinance amending Title 15, which took effect immediately upon adoption, and set a hearing date of June 14, 2022, for the second reading of the Ordinance.
On June 14, 2022, the City Council continued the public hearing of the second reading of the Ordinance to June 28, 2022.
On June 28, 2022, the City Council adopted Ordinance No. 1038, amending Title 15 (Building and Construction) Chapter 15.06 of the Brentwood Municipal Code, adopting by reference California Code of Regulations, Title 24, part 9 (The California Fire Code), as amended by Contra Costa County Fire Protection District Ordinance 2019-37.
On October 25, 2022, the City Council waived the first reading of proposed Ordinance No. 1049 amending Title 15 (Building and Construction), Chapter 15.04 of the Brentwood Municipal Code to adopt by reference the 2022 edition of the California Code of Regulations Title 24 (California Building Standards Code) with amendments; and Chapter 15.06 of the Brentwood Municipal Code, to adopt by reference the 2022 edition of the California Code of Regulations Part 9, 2022 California Fire Code.
On November 15, 2022, the City Council adopted Ordinance No. 1049, amending Title 15 (Building and Construction) Chapter 15.04 of the Brentwood Municipal Code to adopt by reference the 2022 edition of the California Code of Regulations Title 24
(California Building Standards Code) with amendments; and Chapter 15.06 of the Brentwood Municipal Code to adopt by reference the 2022 edition of the California Code of Regulations Part 9, 2022 California Fire Code.
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
BRENTWOOD ADOPTING BY REFERENCE PORTIONS OF THE 2025
EDITION OF THE CALIFORNIA CODE OF REGULATIONS, TITLE 24 (CALIFORNIA BUILDING STANDARDS CODE) WITH LOCAL
AMENDMENTS, AMENDING CHAPTER 15.04 AND AMENDING AND
ADDING TO CHAPTER 15.06 OF THE BRENTWOOD MUNICIPAL
CODE AND MAKING REQUIRED FINDINGS OF LOCAL CLIMATIC,
GEOLOGICAL, AND TOPOGRAPHICAL CONDITIONS
WHEREAS, each city in California is required to adopt the California Building Standards Code and is authorized to do so by reference (Health and Safety Code § 17922 and Government Code § 50022.2); and
WHEREAS, the 2025 Edition of the California Building Standards Code, Title 24 of the California Code of Regulations, including the 2025 California Administrative Code (Part 1), Building Code (Part 2), Residential Code (Part 2.5), Electrical Code (Part 3), Mechanical Code (Part 4), Plumbing Code (Part 5), Energy Code (Part 6), Historical Building Code (Part 8), Fire Code (Part 9), Existing Building Code (Part 10), Green Building Standards Code (Part 11), and Referenced Standards Code (Part 12), has been published by the California Building Standards Commission and establishes uniform statewide standards for the construction, alteration, and maintenance of buildings, structures, and other improvements; and
WHEREAS, the City desires to adopt by reference portions of the 2025 California Building Standards Code, together with certain amendments, additions, and deletions that are necessary to address local climatic, geological, or topographical conditions; and
WHEREAS, the City has provided notice of, and taken all actions necessary for, the proposed adoption by reference of certain uniform State codes as set forth in this Ordinance and as required by Government Code section 50020, et seq..
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BRENTWOOD DOES ORDAIN AS FOLLOWS:
SECTION 1. The adoption of the ordinance is not a project under the California Environmental Quality Act (“CEQA,” codified at Public Resources Code §§ 21000, et seq., as further governed by the State CEQA Guidelines, found at 14 CCR §§ 15000, et seq.) pursuant to 14 CCR §§ 15358 and 15378 because it has no potential for resulting in physical change to the environment, directly or indirectly.
Further, even if considered a project, the adoption of this ordinance is exempt under CEQA pursuant to 14 CCR § 15061(b)(3) because it can be seen with certainty that there is no possibility the adoption of this ordinance will have a significant effect on the environment.
SECTION 2. Under Health and Safety Code sections 17958.5 and 17958.7, the City Council finds the following amendment to the California Plumbing Code is reasonably necessary because of local climatic, geological, or topographical conditions in that: due to the high levels of acid (PH) in the native soil and soil that has been imported for fill, which is highly corrosive on metallic pipe placed in the ground. With these high levels of PH in the soil, when metallic pipe is exposed to the soil, it fails over time. Because not all areas of the City contain the high level of PH, an exception to this restriction is authorized when a soils report indicates an acceptable level of PH.
SECTION 3. Chapter 15.04 (California Building Standards Codes) of the Brentwood Municipal Code is amended in its entirety to read as follows:
Chapter 15.04 CALIFORNIA BUILDING STANDARDS CODES
15.04.010 California Building Standards Code adopted by reference.
A. Adoption. The following volumes and appendices of the California Building Standards Code, 2025 Edition, published by the California Building Standards Commission are adopted by reference:
Part 1, California Administration Code;
Part 2, California Building Code Volumes 1 and 2 including; Appendix I, Patio Covers
Appendix J, Grading
Appendix L, Earthquake Recording Instrumentation
Appendix P, Sleeping Lofts
Appendix Q, Emergency Housing
Part 2.5, California Residential Code including;
Appendix BF, Patio Covers
Appendix BJ, Strawbale Construction
Appendix CI, Swimming Pool Safety Act
Appendix CJ, Emergency Housing
Part 3, California Electrical Code
Part 4, California Mechanical Code including;
Appendix B, Procedures to be followed to Place Gas Equipment in Operation
Appendix C, Installation and Testing of Oil (liquid) Fuel-Fired Equipment Part 5, California Plumbing Code including;
Appendix A, Recommended Rules for Sizing the Water Supply System Appendix B, Explanatory Notes on Combination Waste and Vent Systems Appendix D, Sizing Storm Water Drainage Systems
Appendix H, Private Sewage Disposal Systems
Appendix I, Installation Standards or PEX Tubing Systems for Hot and Cold Water Distribution
Appendix J, Combination of Indoor and Outdoor Combustion and Ventilation Opening Design
Part 6, California Energy Code
Part 8, California Historical Building Code
Part 10, California Existing Building Code including;
Appendix A, Guidelines for the Seismic Retrofit of Existing Buildings Part 11, California Green Building Standards Code
Part 12, California Referenced Standards
B. Copy Available. A copy of the California Building Standards Code is on file in the City of Brentwood Community Development Department for use and examination by the public.
C. Fees. The fees for permits issued under this chapter are those established by resolution of the City Council.
D. Enforcement of Penalties. The City may enforce this Chapter 15.04 by any means set forth in the California Building Standards Codes or in Brentwood Municipal Code Title 1 (General Provisions).”
15.04.020 Amendments.
The 2025 California Plumbing Code is hereby amended by the changes, additions and deletions set forth in this section, and section numbers below refer to that Code:
“CPC section 1208.5: High levels of acid (PH) found in many locations throughout the city from natural soils and imported soils have proven to have a highly corrosive effect on metallic piping laid underground. The city prohibits the use of metallic gas
piping underground without the approval of the city’s chief building official and a soils analysis showing a level of (PH) that will not corrode metallic piping.” SECTION 4. Chapter 15.06 (California Building Standards Code Fire Code) of the Brentwood Municipal Code is amended in its entirety to read as follows:
Chapter 15.06 California Building Standards Code Fire Code and WildlandUrban Interface Code
15.06.010 California Fire Code, California Code of Regulations, Title 24, Part 9 adopted by reference.
A. Adoption. The California Building Standards Code, 2025 edition, published by the California Building Standards Commission Part 9 (The California Fire Code), as amended by Contra Costa County Fire Protection District Ordinance 2025-14, including findings supporting amendments to the 2025 California Building Standards Code Part 9 (The California Fire Code) is adopted by reference.
B. Copy Available. A copy of the California Building Standards Code Fire Code is on file in the City of Brentwood Community Development Department for use and examination by the public.
C. Fees. The Fees for permits under this chapter are those established by Contra Costa County Fire protection District.
D. Delegation of enforcement to Fire Chief. Pursuant to California Health and Safety Code 13869.7, the City Council delegates enforcement of Ordinance 2025-14 to the Fire Chief of the Contra Costa County Fire Protection District, or his or her authorized representative.
15.06.020 California Building Standards Code Part 7 Wildland-Urban Interface Code adoption by reference:
A. Adoption. The California Building Standards Code, 2025 edition, published by the California Building Standards Commission Part 7 (California Wildland-Urban Interface Code), as amended by Contra Costa County Fire Protection District Ordinance 2025- 15, including findings supporting amendments to the 2025 California Building Standards Code Part 7 (The California Wildland–Urban Interface Code) is adopted by reference.
B. Copy Available. A copy of the California Wildland-Urban Interface Code is on file in the City of Brentwood Community Development Department for use and examination by the public.
C. Fees. The fees for permits issued under this chapter are those established by resolution of the City Council.
D. Enforcement of Penalties. The City may enforce this Chapter 15.06.020 by any means set forth in the California Building Standards Codes or in Brentwood Municipal Code Title 1 (General Provisions).”
SECTION 5. This ordinance shall be published in accordance with Government Code Section 36933 by either posting or publishing the ordinance in accordance with that law. Further, the City Clerk is requested to cause the text amendment and additions in Sections 3 through 4 to be entered in the City of Brentwood Municipal Code. The City Clerk is further requested to file this ordinance with the California Building Standards Commission, under Health and Safety Code section 17958.7. This ordinance shall take effect on January 1, 2026 after its adoption; provided, however, that where complete plans for building have been filed and are pending for building permits prior to the effective date of this Ordinance, permits may be issued, and the applicant may proceed with construction in strict compliance with the California Building Standards Codes, 2022 Editions, California Code of Regulations, Title 24, as adopted by Ordinance No. 1049 and amended therein.
SECTION 6. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional by the decision of a court of competent jurisdiction, the holding shall not affect the validity or enforceability of the remaining provisions, and the City Council declares that it would have adopted each provision of this ordinance irrespective of the validity of any other provision.
SECTION 7. Unless superseded, references in City forms, documents, and regulations regarding the California Building Standards Codes, 2022 Editions, California Code of Regulations, Title 24, as adopted by the City of Brentwood, shall be construed to apply to the corresponding provisions contained within the 2025 Editions, California Code of Regulations, Title 24, as adopted and amended in this ordinance.
THE FOREGOING ORDINANCE was introduced with the first reading waived at a regular meeting of the Brentwood City Council on the 28th day of October 2025 by the following vote:
Ordinance No. 2025-14
1 ORDINANCE NO. 2025-14
(Adoption of the 2025 California Fire Code and Local Amendments)
ORDINANCE OF COUNTY OF CONTRA COSTA, THE CROCKETT-CARQUINEZ FIRE PROTECTION DISTRICT, AND THE CONTRA COSTA COUNTY FIRE PROTECTION DISTRICT ADOPTING THE 2025 CALIFORNIA FIRE CODE WITH AMENDMENTS.
The Contra Costa County Board of Supervisors, acting in its capacity as the Board of Supervisors for Contra Costa County, and as the Board of Directors of the Crockett-Carquinez Fire Protection District and the Contra Costa County Fire Protection District, ordains as follows:
SECTION 1. SUMMARY. This ordinance adopts the 2025 California Fire Code (California Code of Regulations, Title 24, Part 9),subject to the changes, additions, and deletions that are necessary because of local climatic, geological, or topographical conditions. This ordinance is adopted pursuant to Health and Safety Code sections 17922, 17958, 17958.5, and 17958.7, and Government Code sections 50020 through 50022.10.
SECTION 2. 2025 CALIFORNIA FIRE CODE WITH LOCAL AMENDMENTS. Chapter 722-2 (Adoption) of Division 722 (Fire Code) of the County Ordinance Code is repealed and replaced with new Chapter 722-2 (Fire Code), to read:
“Chapter 722-2 FIRE CODE
722-2.002. Adoption. The 2025 California Fire Code (California Code of Regulations, Title 24, Part 9 [based on the 2024 International Fire Code published by the International Code Council]), including Chapters 1-12 and 20-80, Appendix B, Appendix C, Appendix D, Appendix F, Appendix H, Appendix I, Appendix J, Appendix K, and Appendix P, as amended by the changes, additions, and deletions set forth in this chapter, is adopted by this reference as though fully set forth herein as the Fire Code of Contra Costa County, the Crockett-Carquinez Fire Protection District, and the Contra Costa County Fire Protection District. The provisions of this chapter are controlling and enforceable within the limits of each jurisdiction. (Ord. 2025-14 § 2; Ord. 2022-34 § 1; Ord. 2016-13 § 1.) 722-2.004. Local Amendments. The 2025 California Fire Code is amended by the changes, additions, and deletions set forth in this section. Chapter and section numbers used below are those of the 2025 California Fire Code.
(a) Section 101.1 of Chapter 1 (Scope and Administration) is amended to read:
“101.1 Title. This code is the Fire Code of Contra Costa County, the Crockett-Carquinez Fire Protection District, and the Contra Costa County Fire Protection District, and is hereinafter referred to as ‘'this code.’”
(b) Section 102.1 of Chapter 1 (Scope and Administration) is amended to add Item 5, to read:
“5. Where not otherwise limited by law, the provisions of this code shall apply to vehicles, ships, and boats that are permanently affixed to a specific location within the boundaries of this jurisdiction.”
Ordinance No. 2025-14
2 (c) Section 105.5 of Chapter 1 (Scope and Administration) is amended, to read:
“105.5. Required operational permits. The fire code official is authorized to issue operational permits for the operations set forth in Chapter 1, Sections 105.5.1 through 105.5.60.” (d) New Section 105.5.60 is to Chapter 1 (Scope and Administration) to read:
“105.5.60 Five-year sprinkler test. An operational permit is required to engage in the business of conducting the five-year test of an automatic fire sprinkler systems or standpipe, in accordance with NFPA 25 (Standard for the Inspection, Testing, and Maintenance of Water-Based Fire Protection Systems), 2013 California Edition.
(e) Section 105.6 is amended to read
“105.6. Required construction permits. The fire code official is authorized to issue construction permits for the operations set forth in Chapter 1, Sections 105.6.1 through 105.6.25.” (f) Section 105.6 is amended by adding Sections 105.6.26 through 105.6.30, to read:
“105.6.26. Access for fire apparatus. Plans shall be submitted and a permit is required to install, improve, modify, or remove public or private roadways, driveways, and bridges for which Fire District access is required by the Fire Code.
105.6.27. Construction, Substantial Alteration, Additions of a building for which a building permit is required. Plans shall be submitted to the fire code official for all land developments or for the construction, substantial alteration, additions or renovation of a building within the jurisdiction where a building permit is required.
Exception: Non-sprinklered Group R-3 Occupancies where work does not involve a substantial addition or substantial alteration.
105.6.28. Land Development, Subdivisions. Plans shall be submitted to the fire code official for all land developments or improvements proposed within the jurisdiction that involve the subdivision of land.
105.6.29. Water supply for fire protection. Plans shall be submitted to the fire code official for the purpose of determining whether adequate water supplies, fire hydrants, and associated systems are provided for all facilities, buildings, or portions of buildings either constructed or moved into the District pursuant to Section 507.
105.6.30. Land Development. Plans shall be submitted to the fire code official for all land developments or improvements proposed within the jurisdiction.” (g) Section 112.4 is amended to read:
“112.4 Violation penalties. Every person who violates any provision of this fire code is guilty of an infraction or misdemeanor in accordance with Health and Safety Code Section 13871 and GovernmentCode Section 53069.4. The imposition of one penalty for any violation shall not excuse the violation or permit to continue; and allsuch persons sha11 be required to correct or remedy such violations or defects within a reasonable time; and when not otherwise specified, each ten (10) days
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3 that prohibited conditions are maintained shall constitute a separate offense. The application of the aforesaid penalty shall not be held to prevent the enforced removal of prohibited conditions.” (h) Section 202 or Chapter 2 (Definitions) is amended to include the following additional defined terms:
“Administrator. Shall mean the Fire Chief.”
“Aerial Pre-Plans. An overhead layout of a parcel that contains structure(s) that identifies specific firstresponder related items to assist in effectively managing incidents and events for the protection of occupants, responding personnel, property, and the environment. The preplan shall be developed in accordance with a format approved by the AHJ. Preplan symbols shall comply with AHJ or the latest edition of NFPA 170 (Standard for Fire Safety and Emergency Symbols), and NFPA 1620 (Standard for Pre-Incident Planning).”
“All-weather driving surface. A roadway with a minimum surface finish that is designed to carry the imposed weight loads of fire apparatus.”
“Board of Directors. The Contra Costa County Board of Supervisors, acting in its capacity as either the governing body of the Crockett-Carquinez Fire Protection District, or the governing body of the Contra Costa County Fire Protection District, depending which agency has jurisdiction. “Board of Fire Commissioners. An advisory commission appointed by the Board of Directors to act as set forth in this ordinance and by resolutions of the Board of Directors.” “Combustible Material. Rubbish, litter or material of any kind other than hazardous vegetation that is combustible and endangers the public safety by creating a fire hazard as determined by the fire code official.”
“Driveway. A private roadway that provides access to no more than two (2) single-family dwellings.” “Fire Trail. A graded firebreak of sufficient width, surface, and design to provide access for personnel and equipment to suppress and to assist in preventing a surface extension of fires. Must be able to support the safe travel of a Type 3 Fire Apparatus.” “Hazardous Vegetation. Vegetation that is combustible and endangersthe public safety by creating a fire hazard including but not limited to seasonal and recurrent grasses, weeds, stubble, brush, dry leaves, dry needles, dead, dying or diseased trees and any other vegetation as determined by the fire code official.”
“Key Box or Knox Box. (Underwriters Laboratory) UL "Listed" box, size and style, approved by the Fire Code Official or designee that meets the requirements and uses the same security key code adopted by the Fire District”
“Nuisance Fire Alarm. The activation of any fire protection or alarm system which results in the response of the Fire District and is caused by malfunction, improper maintenance, negligence, or misuse of the system by an owner, occupant, employee, or agent, or any other activation not caused by excessive heat,smoke, fire, orsimilar activating event.” “Public Nuisance. A declaration by the fire code official that the presence of combustible materials on any parcel creates a fire hazard or threat to public safety (Health and Safety Code 14875 and
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4 14876) or any violation of this code.”
“Response Time. The elapsed time from receipt of call to the arrival of the first unit on scene.” “Rural Area. An area generally designated for agricultural or open space uses with parcels more than 10 acres (4.046873ha) in size.”
“Rural Residential Area. An area generally designated for single-family residential use with parcels between three (1.21406 l 9ha) and 10 (4.046873ha) acres in size.” “Sprinkler Alarm and Supervisory System (SASS). A Dedicated Function Fire Alarm System located at the protected premise installed specifically to monitor sprinkler water- flow alarm, valve supervisory, and general trouble conditions where a Building Fire Alarm is not required.” “Streets. Includes alleys, parkways, driveways, sidewalks, and areas between sidewalks and curbs, highways, public right of ways, private road, paper street and, easements.” Substantial Addition. Any change to an existing building or structure that meets both of the following criteria:
(a) adds gross floor area that exceeds fifty percent of the gross floor area of the existing building or structure; and
(b) results in the building or structure and the addition having a combined new gross floor area of 5,000 square feet or more.
Substantial Alteration. Any change to an existing building or structure that meets both of the following criteria within a one-year period:
(a) The removal of fifty percent or more of the linear length of any interior or exterior wall of the building or structure; and
(b) The removal and replacement of fifty percent or more of the area of the building or structure’s roof.
“Temporary Fire Department Access Road. A temporary, all-weather roadway constructed and maintained for the purpose of providing fire apparatus access to buildings, structures, or portions of a site under development until such time as the permanent fire apparatus access road is installed and approved. Temporary access roads shall be designed, constructed, and maintained to support the imposed loads of fire apparatus, provide the required width and vertical clearance, and remain clear and unobstructed at all times during construction.” (i) Chapter 3 (General Precautions Against Fire) is amended by adding new Section 324 (Exterior Fire Hazard Control), to read:
“324. Exterior Fire Hazard Control.
324.1. Subsurface Fires.
324.1.1. Peat Fire. It is the duty of each person, firm, corporation, or association not to permit a peat fire or a fire involving combustible vegetable matters under the surface of the natural ground to remain upon the property. It is hereby declared that it is the duty of any person as herein defined to take all necessary precautions to extinguish any subsurface fire involving peat or vegetable material
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5 at the owner's own cost and expense.
324.1.2 Fire Suppression Costs. If there exists upon the lands or property of any person as herein defined a subsurface fire involving the burning or combustion of peat, vegetable matter, or vegetation, and the owner or occupant thereof has not taken reasonable precautions within a reasonable time to extinguish or minimize such fire or combustion, the Fire District may, in addition to its regular duties to extinguish or minimize such fire or combustion, go upon the lands of any person as herein defined and extinguish such fire or combustion. Any costs incurred by the Fire District in fighting the fire and for the cost of proving rescue or emergency medical services shall be a charge against the property owner. The charge shall constitute a debt of the property owner and is collectable by the jurisdiction incurring those costs in the same manner as in the case of an obligation under a contract, express or implied. (See Health and Safety Code, §13009.)” (j) New Section 401.5.1 is added to Chapter 4 (Emergency Planning and Preparedness), to read:
“401.5.1. Nuisance Fire Alarm. A fee may be charged for false or nuisance fire alarms in accordance with a fee schedule adopted by the Board of Directors.” (k) New Section 401.10 is added to Chapter 4 (Emergency Planning and Preparedness), to read:
“401.10 Aerial Pre-Plans. For all new construction the fire official is authorized to require a fire aerial pre-plan to be prepared by an approved vendor at the cost of the developer.” (l) New Section 401.11 is added to Chapter 4 (Emergency Planning and Preparedness), to read:
“401.11 Standby Personnel. Where, in the opinion of the fire code official or Fire Chief, it is essential for public safety in a place of assembly, or any other place where people congregate, because of the number of persons, or the nature of the performance, exhibition, display, contest, or activity, the owner, agent, or lessee shall provide standby personnel as required and approved by the fire code official or Fire Chief. If the activity requires fire watch, fire watch shall be provided in accordance with Sections 403.11.1.1 and 403.11.1.2. Standby personnel needed for EMS standby shall be provided in accordance with Contra Costa County EMS Protocols.” (m) Section 503.1.1 in Chapter 5 (Fire Service Features) is amended, to read:
“503.1.1. Buildings and facilities. Approved fire apparatus access roads shall be provided for every facility, building or portion of a building hereafter constructed or moved into or within the jurisdiction. The fire apparatus access road shall comply with the requirements of this section and shall extend to within 150 feet of all portions of the facility and all portions of the exterior walls of the first story of the building as measured by an approved route around the exterior of the building or facility.
Exceptions:
1. The fire code official is authorized to increase the dimension to 250 feet where the building is equipped throughout with an approved automatic sprinkler system installed in accordance with Section 903.3.1.1, 903.3.1.2 or 903.3.1.3.
2. Where approved by the fire code official, fire apparatus access roads shall be permitted to be exempted or modified for solar photovoltaic power generation facilities.” (n) Section 503.1.4 is added to Chapter 5 (Fire Service Features), to read:
Ordinance No. 2025-14
6 “503.1.4. Access to open spaces. When access to open land/space or fire trail systems maintained for public or private use is obstructed by new development of any kind, the developer shall provide alternate acceptable access into the area that is sufficient to allow access for fire personnel and apparatus. The alternate means of access requires the approval of the fire code official.” (o) Section 503.1.5 is added to Chapter 5 (Fire Service Features), to read:
“503.1.5. Existing fire trail systems shall be maintained. When conditions make maintenance of existing trails impractical, alternate means of access shall be provided and requires approval by fire code official.”
(p) Section 503.2.1 in Chapter 5 (Fire Service Features) is amended to include the following exception:
“Exception: A driveway with a minimum width of 16 feet is acceptable for access to one or two single-family dwellings.”
(q) Section 505.3 is added to Chapter 5 (Fire Service Features), to read:
“505.3 Street names and addressing. Street names and addressing shall be submitted for review and approval to the fire code official, whose approvalwill not be unreasonablywithheld. The purpose of the review is to verify that new street names and addressing will not duplicate existing street names and addressing.”
(r) Section 506.2.1 is added to Chapter 5 (Fire Service Features) read:
“506.2.1 Knox Box upgrade. All current businesses and occupancies with current Knox Boxes shall upgrade their lockbox to the eCore Technology by December 31, 2028.” (s) Section 901.6.3 in Chapter 9 (Fire Protection Systems) is amended, to read:
“901.6.3 Records. Records of all system inspections, tests, and maintenance required by the reference standards shall be submitted to a third party electronic record keeping service as chosen by the fire district.”
(t) Section 902.1 in Chapter 9 (Fire Protection Systems) is amended to include the following definitions:
“Substantial Addition. The addition of new gross floor area exceeds fifty percent of the existing gross floor area and the total new gross floor area is 5,000 square feet or greater.” “Substantial Alteration. Where fifty percent or greater of the linear length of the wall of the building (exterior and interior) and fifty percent of the roof are removed or replaced within a oneyear period.” (u) Section 903.2.1.1 in in Chapter 9 (Fire Protection Systems) is amended, to read:
“903.2.1.1. Group A-1. An automatic sprinkler system shall be provided throughout stories containing Group A- 1 occupancies and throughout all stories from the Group A-1 occupancy to and including the levels of exit discharge serving that occupancy where one of the following conditions exists:
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7 1. The fire area exceeds 5,000 square feet.
2. The fire area has an occupant load of 300 or more.
3. The fire area is located on a floor other than a level of exit discharge serving such occupancies.
4. The fire area contains a multi-theater complex.”
(v) Section 903.2.1.3 in Chapter 9 (Fire Protection Systems) is amended, to read:
“
“903.2.1.3. Group A-3. An automatic sprinkler system shall be provided throughout stories containing Group A-3 occupancies and throughout all stories from the Group A-3 occupancy to and including the levels of exit discharge serving that occupancy where one of the following conditions exists:
1. The fire area exceeds 5,000 square feet.
2. The fire area has an occupant load of 300 or more.
3. The fire area is located on a floor other than a level of exit discharge serving such occupancies.
4. The structure exceeds 10,000 square feet, contains more than one fire area containing exhibition and display rooms, and is separated into two or more buildings by firewalls of less than 4-hour fire resistance rating without openings.”
(w) Section 903.2.1.4 in Chapter 9 (Fire Protection Systems) is amended, to read:
“903.2.1.4. Group A-4. An automatic sprinkler system shall be provided throughout stories containing Group A- 4 occupancies and throughout all stories from the Group A-4 occupancy to and including the levels of exit discharge serving that occupancy where one of the following conditions exists:
1. The fire area exceeds 5,000 square feet
2. The fire area has an occupant load of 300 or more.
3. The fire area is located on a floor other than a level of exit discharge serving such occupancies.” (x) Section 903.2.2 in Chapter 9 (Fire Protection Systems) is amended, to read:
“903.2.2. Group B. An automatic sprinkler system shall be provided for Group B occupancies and intervening floors of the building where the fire area exceeds 5,000 square feet.” (y) Section 903.2.9.1 in Chapter 9 (Fire Protection Systems) is amended to include the following exception:
“Exception: Floors classified as an open parking garage are not required to be sprinklered.” (z) Section 903.2.3 in Chapter 9 (Fire Protection Systems) is amended, to read:
“903.2.3. Group E. An automatic sprinkler system shall be provided for Group E occupancies as follows:
1. Throughout all Group E fire areas greater than 2,000 square feet in area.
Exception: An automatic sprinkler system is not required in any Group E Day Care Facility less than 5,000 square feet
2. The Group E fire area is located on a floor other than a level of exit discharge serving such occupancies.
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8 Exception: In buildings where every classroom has not fewer than one exterior exit door at ground level, an automatic sprinkler system is not required in any area below the lowest level of exit discharge serving that area.
3. The Group E fire area has an occupant load of 300 or more.
4. In rooms or areas with special hazards such as laboratories, vocational shops, and. other such areas where hazardous materials in quantities not exceeding the maximum allowable quantity are used or stored.
5. Throughout any Group E structure greater than 4,000 square feet in area, which contains more than one fire area, and which is separated into two or more buildings by fire walls of less than 4-hour fire resistance rating without openings.
6. For public school state-funded construction projects, see Section 903.2.19.
7. For public school campuses, Kindergarten through 12th grade, see Section 903.2.20.” (aa) Section 903.2.4 in Chapter 9 (Fire Protection Systems) is amended, to read:
“903.2.4. Group F-1. An automatic sprinklersystem shall be provided throughout all buildings containing a Group F-1 occupancy where one of the following conditions exists:
1. A Group F-1 fire area exceeds 5,000 square feet.
2. A Group F-1 fire area is located more than three stories above grade plane.
3. The combined area of all Group F-1 fire areas on all floors, including any mezzanines, exceeds 10,000 square feet.
4. A Group F-1 occupancy used for the manufacture of upholstered furniture or mattresses exceeding 2,500 square feet (232 m2).”
(ab) Section 903.2.4.4 is added to Chapter 9 (Fire Protection Systems), to read:
“903.2.4.4 Group F-2. An automatic sprinkler system shall be provided throughout all buildings containing a Group F-2 occupancy greater than 5,000 square feet.” (ac) Section 903.2.7 in Chapter 9 (Fire Protection Systems) is amended, to read “903.2.7 Group M. An automatic sprinkler system shall be provided throughout buildings containing a Group M occupancy where one of the following conditions exists:
1. A Group M fire area exceeds 5,000 square feet.
2. A Group M fire area is located more than three stories above grade plane.
3. The combined area of all Group M fire areas on all floors, including any mezzanines, exceeds 10,000 square feet.
4. A Group M occupancy (is) used for the display and sale of upholstered furniture or mattresses exceeds 5,000 square feet.
5. The structure exceeds 5,000 square feet, contains more than one fire area containing a Group M occupancy, and is separated into two or more buildings by fire walls of less than 4-hour fire resistance rating without openings.”
(ad) Section 903.2.8.1.1 is added to Chapter 9 (Fire Protection Systems), to read:
“903.2.8.1.1 Group R-3 Substantial Addition or Alteration. An automatic sprinkler system shall be provided throughout all existing Group R-3 dwellings where either a substantial addition
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9 or alteration occurs.”
(ae) Section 903.2.9 in Chapter 9 (Fire Protection Systems) is amended, to read:
“903.2.9. Group S-1. An automatic sprinklersystem shall be provided throughout all buildings containing a Group S-1 occupancy where one of the following conditions exists:
1. A Group S-1 fire area exceeds 5,000 square feet.
2. A Group S-1 fire area is located more than three stories above grade plane.
3. The combined area of all Group S-1 fire areas on all floors, including any mezzanines, exceeds 10,000 square feet.
4. A Group S-1 occupancy used for the storage of commercial motor vehicles where the fire area exceeds 5,000 square feet.”
(af) Section 903.2.9.1 in Chapter 9 (Fire Protection Systems) is amended, to read:
“903.2.9.1 Repair garages. An automatic sprinkler system shall be provided throughout all buildings used as repair garages in accordance with Section 406.8 of the California Building Code, as shown:
1. Buildings having two or more stories above grade plane, including basements, with a fire area containing a repair garage exceeding 5,000 square feet.
2. Buildings not more than one story above grade plane, with a fire area containing a repair garage exceeding 5,000 square feet.
3. Buildings with repair garages servicing vehicles parked in basements.
4. A Group S-1 fire area used for the repair of commercial motor vehicles where the fire area exceeds 5,000 square feet.”
(ag) Section 903.2.10.1 in Chapter 9 (Fire Protection Systems) is amended, to read:
903.2.10.1. Group S-2 parking garages. An automatic sprinkler system shall be provided throughout buildings classified as parking garages where any of the following conditions exists:
1. Where the fire area of the enclosed parking garage, in accordance with Section 406.6 of the California Building Code, exceeds 5,000 square feet.
2. Where the enclosed parking garage, in accordance with Section 406.6 of the California Building Code, is located beneath other groups.
Exception: Enclosed parking garages located beneath Group R-3 occupancies.
3. Where the fire area of the open parking garage, in accordance with Section 406.5 of the California Building Code, exceeds 48,000 square feet.
(ah) Section 903.2.10.3 is added to Chapter 9 (Fire Protection Systems), to read:
“903.2.10.3 Group S-2 low hazard storage. An automatic sprinkler system shall be provided throughout all buildings containing a Group S-2 occupancy exceeding 5,000 square feet.
Exception: Open parking garages, including canopies and photovoltaic panel systems with open parking underneath,shall meet automatic sprinklersystem requirementsin accordance with the 2025 California Building Code and 2025 California Fire Code without local amendment.”