SEPTEMBER 21, 2026, 7:00 PM
CITY COUNCIL/SUCCESSOR AGENCY AGENDA
CITY COUNCIL CHAMBER, 150 CITY PARK WAY
*IMPORTANT NOTICE ABOUT PUBLIC COMMENTS AND MEETING PARTICIPATION* City Council members will participate in person from the Council Chamber. Members of the public are invited to attend and participate in the Council Chamber at 150 City Park Way, Brentwood, CA.
Members of the public may also attend the meeting and provide public comment remotely through Zoom.
Remote participants will receive the same public comment time as those attending in person. If remote access is disrupted during the meeting, the open session will recess while City staff make reasonable, goodfaith efforts to restore service. The meeting will remain in recess for at least one hour or until service is restored, whichever occurs first. If service is restored, the meeting will reconvene. If service is not restored, the City Council may adjourn the meeting or continue in open session after adopting the findings required by Government Code § 54953.4 and City Council Policy No. 110-1.
Members of the public who cannot attend in person or participate remotely may submit written comments by 3:00 p.m. prior to the meeting.
HOW TO PARTICIPATE
The public is invited to participate in the City Council meeting using any of the following methods:
1. IN PERSON:
a. Members of the public can provide in-person comments in the Council Chamber.
Members of the public are encouraged, but not required, to fill out a speaker card. The Council Chamber will have seating available for members of the public to attend in person up to full seating capacity.
2. REMOTE:
a. Zoom: www.brentwoodca.gov/vcc or Zoom Webinar ID: 760 1397 0037 b. Zoom Phone Numbers. Dial Toll Free: (833) 548-0276 or (833) 548-0282 or (877) 853-5247.
c. During the meeting, each period for public comment will be announced, and participants may use the “Raise Hand” feature on Zoom to request to speak. (If you need instructions on how to use this feature, please contact the City Clerk by noon of the meeting date at [email protected] or 925.516.5182.)
3. E-MAIL:
a. Public comments can also be submitted via e-mail to [email protected]. Any public comments received up until 3:00 p.m. of the meeting date will be:
1. distributed to the Council via email before the meeting,
2. posted online for public inspection at www.brentwoodca.gov/meetings and
3. later summarized in the meeting minutes.
b. As e-mails containing public meeting comments are part of the official record, note that personal contact information may be published if it is included with your e-mail.
4. TO WATCH OR LISTEN ONLY:
a. The public may view the meeting via one-way video feed by selecting the video option at the City Council Agendas’ link on the City webpage at www.brentwoodca.gov or via the City’s YouTube Channel: https://www.youtube.com/c/cityofbrentwoodca
CITY COUNCIL/SUCCESSOR AGENCY AGENDA
Zoom Webinar ID: 760 1397 0037
September 21, 2026, 7:00 p.m.
City Council Chambers
150 City Park Way
Brentwood, CA 94513
City Council Zoom Link
A. CALL TO ORDER & ROLL CALL
B. PLEDGE OF ALLEGIANCE
C. PUBLIC COMMENTS
Pursuant to Council/Administrative Policy, Meeting Rules and Procedures section 5.2 (Decorum Generally – Public), comments by members of the public are generally limited to three minutes, or less time if a large number of speakers is anticipated, or if approved by the Mayor. In accordance with State law, no action or discussion may take place on any item not appearing on the posted agenda. The City Council may respond to statements made or questions asked or may request Staff to report back at a future meeting concerning the matter. Speakers desiring answers to questions should direct them to the Council/Successor Agency and, if relevant, they may direct them to the appropriate staff member. Speakers can also follow up directly with staff during regular City business hours.
Members of the public have the option of giving public comment in person or via two-way telephonic service (Zoom).
Members of the public participating in person are asked to file a speaker’s card with the City Clerk on the form provided on the counter at the back of the Chambers. Members of the public participating via Zoom are asked to use the raise-hand feature to indicate a desire to make a public comment.
During this portion of the meeting, the public is permitted to speak on items not listed on the agenda. Public comments for scheduled agenda items should wait until that time.
In order to ensure that all speakers feel welcome to share their views, members of the audience are kindly requested to refrain from applauding or speaking to the Council from the audience without being called upon first.
D. CONSENT CALENDAR
All matters listed on the consent calendar are considered routine in nature and will be enacted by one motion. If discussion is required, that particular item will be removed from the consent calendar and will be considered separately.
D.1 Meeting Minutes of the City Council
Special City Council Meeting Minutes of September 8, 2026; and City Council / Successor Agency Meeting Minutes of September 8, 2026.
D.2 Proclamation recognizing September 26, 2026 as Human Resources Professional Day D.3 Proclamation recognizing September 29, 2026 as National Veterans of Foreign Wars Day D.4 Proclamation recognizing October 2026 as Breast Cancer Awareness Month D.5 Proclamation recognizing October 2026 as Cybersecurity Awareness Month D.6 Proclamation recognizing October 2026 as Domestic Violence Awareness Month D.7 Proclamation recognizing October 2026 as Filipino American History Month D.8 Proclamation recognizing October 2026 as Italian American Heritage Month D.9 Proclamation recognizing October 2026 as National Community Planning Month D.10 Proclamation recognizing October 2026 as Polish American Heritage Month D.11 Proclamation recognizing October 11-17, 2026 as Code Enforcement Appreciation Week D.12 Proclamation recognizing October 12, 2026 as Indigenous Peoples Day D.13 Award of a Public Works Contract for Installation of Re-Top (ReNew) Maintenance Surfacing for the Universal Abilities Playground at Veterans Park; and amendment of the FY 2026/27 Operating Budget
Title/Recommendation
Adopt a Resolution approving a public works contract with Robertson Industries, Inc. (“Robertson”) for installation of Re-Top (ReNew) Maintenance Surfacing for the universal abilities playground at Veterans Park, located at 3841 Balfour Road, in an amount not to exceed $73,883.25, authorizing the City Manager or designee to execute the public works contract and related documents necessary to implement the contract, and amending the FY 2026/27 Parks and LLAD Replacement Fund Operating Budget in the amount of $73,884 for this expense.
D.14 Award of contract for Oak Meadow Park Playground Replacement; amend the FY 2026/27 – 2030/31 Capital Improvement Program; and amend the FY 2026/27 Operating Budget Title/Recommendation
Adopt a Resolution (1) approving a contract with Park Associates Inc. dba Park Planet for the purchase and installation of playground equipment for Oak Meadow Park Playground Replacement, CIP Project No. 352-52445 (“Project”) in the amount of $372,414.75, and authorizing the City Manager or designee to execute the contract, and related documents, and to approve and execute amendments and change orders in an aggregate amount not to exceed the 10% contingency of $37,241.48, for a total contract authorization not to exceed amount of $409,656.23, (2) amending the FY 2026/27 – 2030/31 Capital Improvement Program (CIP) and (3) amending the FY 2026/27 Operating Budget to provide an additional $18,157 in funding for the Project from the Parks and LLAD Replacement Fund.
The Project is categorically exempt from the California Environmental Quality Act (CEQA), pursuant to Section 15302 of the CEQA Guidelines, because the proposed Project would remove the existing play structure, and replace it with a new play structure at the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced.
D.15 Approve an amendment to the Memorandum of Understanding between the City of Brentwood and Harvest Time in Brentwood; and amend the FY 2026/27 Agriculture Land Acquisition Fund Operating Budget
Title/Recommendation
Adopt a Resolution amending the Memorandum of Understanding (MOU) between the City of Brentwood and Harvest Time in Brentwood (HTIB) for administration and promotion of the U-Pick Capital Program; and amending the FY 2026/27 Agriculture Land Acquisition Fund Operating Budget by $81,400.
E. BUSINESS ITEMS
Persons addressing the City Council using Zoom are asked to raise their hands using the Zoom feature. Those attending in person and wishing to address the Council may do so from the podium. The Council may adopt reasonable regulations at the onset of each business item to facilitate public testimony. These regulations may include time limits. In the absence of such regulations, the item shall follow the protocol for Public Comments. Public comment on each of the following items is limited to what is described in the specific agenda item.
E.1 Annual Update on Pickleball Operations at Creekside Park and Request for Direction on Future Pickleball Court Development
Title/Recommendation
Staff recommends that the City Council (1) receive the annual update on pickleball operations at Creekside Park and (2) provide direction to staff regarding whether staff should continue preliminary planning and conceptual design for a six-court pickleball facility at 2251 Elkins Way, including the preferred development option and potential funding approach, and regarding the long-term use of the existing Creekside Park pickleball courts.
E.2 Sand Creek Sports Complex Update
Title/Recommendation
Staff recommends that City Council receive and provide direction regarding (1) the proposed fees for the Sand Creek Sports Complex and (2) the proposed community-facing operational plan for the first year of operations for the Sand Creek Sports Complex.
E.3 Consideration of Renaming “Hope Park” and Discussion of Administrative Policy No. 501 Title/Recommendation
Discuss and provide direction regarding (1) whether to retain the name “Hope Park” or select an alternate name for the park, and (2) provide direction regarding the application and potential amendment of City Council Administrative Policy No. 50-1, Naming/Dedication of City Facilities.
F. INFORMATIONAL REPORTS FROM COUNCIL MEMBERS, COMMITTEES, LIAISONS, AND STAFF This portion of the agenda is to provide an opportunity for Council Members to report on attendance at events, subcommittee meetings, and entities on which the Council Member has been appointed as a liaison and for staff to provide brief updates and/or information to the City Council.
G. REQUEST FOR FUTURE AGENDA ITEMS - NEW REQUEST(S)
Council Members wishing to have an agenda item placed on a future agenda shall make a request under this section of the agenda. These items will be included on the agenda for the next Council meeting
H. REQUESTED FUTURE AGENDA ITEM(S)
H.1 Consider a Request from Council Member Mendoza and Mayor Meyer to Review and Update the Downtown Specific Plan
Title/Recommendation
That the City Council consider and discuss Council Member Mendoza and Mayor Meyer’s request and provide direction on whether to schedule a future agenda item to review and discuss an update to the Downtown Brentwood Specific Plan.
I. ADJOURNMENT
Any disclosable public records related to an agenda item for the open session of this meeting distributed to all or a majority of the City Council less than 72 hours before this meeting are available for inspection at City Hall, located at 150 City Park Way, during normal business hours.
These writings will also be available for review at the City Council meeting in the public access binder in the entrance of the City Council Chambers.
Public comments received after 3:00 p.m. on the meeting date, but prior to the start of the meeting, will be emailed to the City Council, posted online at www.brentwoodca.gov/councilmeetingonline within one day following the meeting, and will be summarized in the meeting minutes.
The Closed Captioning provided via Zoom is auto-generated. It is not the official record and is provided as a convenience.
If you challenge any of the matters listed under 'Public Hearings' in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice,
or in written correspondence delivered to the Brentwood City Council at, or prior to, the public hearing
NOTICE
In compliance with the Americans with Disabilities Act, the meeting room is wheelchair accessible and disabled parking is available at the City Hall parking lot. If you are a person with a disability and you need disability-related modifications or accommodations to participate in this meeting, please contact the City Clerk's Office at (925) 516-5440 or fax (925) 516-5441. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. {28 CFR 35.102-35, 104 ADA Title II}
POSTING STATEMENT
On September 17, 2026, a true and correct copy of this agenda was posted on the City Hall Bulletin Board, outside City Hall, 150 City Park Way, Brentwood, CA 94513, and on our website www.brentwoodca.gov
A complete packet of information is available for public review at City Hall or on our website at www.brentwoodca.gov
1 SPECIAL CITY COUNCIL MINUTES
September 8, 2026, 5:30 p.m.
A. CALL TO ORDER & ROLL CALL
Mayor Meyer called the meeting to order at 5:30 p.m.
Roll Call found the following members present: Maloney, Pierson, Mendoza, Oerlemans, and Mayor Meyer.
Council Member Maloney participated remotely via Zoom under the teleconferencing provision of Government Code § 54953(b).
B. PLEDGE OF ALLEGIANCE
Mayor Meyer led the Pledge of Allegiance.
C. PUBLIC COMMENTS
Mayor Meyer opened public comments.
Danny Dohrmann provided comments regarding the City Manager.
Laura Von Savoye, Joan Pratt, John Miller, Karen Rogge and Anthony Stevens provided comments in support of Fire Station 90.
Greg Robinson provided comments regarding Items E.1 and E.2.
There being no additional speakers, Mayor Meyer closed public comments.
D. RECESS TO CLOSED SESSION
Moved by: Jovita Mendoza, Council Member
Seconded by: Tony Oerlemans, Council Member
The Council, by motion, recessed to Closed Session at 5:46 p.m.
Roll call vote.
Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Mayor, Pa'tanisha Pierson, Vice Mayor, Tony Oerlemans, Council Member, and Faye Maloney, Council Member
Motion Approved (5 to 0)
E. BUSINESS ITEMS
E.1 CONFERENCE WITH REAL PROPERTY NEGOTIATORS
2 Moved by: Pa'tanisha Pierson, Vice Mayor
Seconded by: Faye Maloney, Council Member
The Council, by motion, directed staff to spend time and attention to:
work on the proposed transfer of the property located at 6691 Lone Tree Way; and
work with the Contra Costa Fire Protection District to negotiate price and terms of the proposed transfer; and
authorize staff to enter into the development application review process.
Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Mayor, Pa'tanisha Pierson, Vice Mayor, Tony Oerlemans, Council Member, and Faye Maloney, Council Member
Motion Approved (5 to 0)
E.2 PUBLIC EMPLOYEE PERFORMANCE EVALUATION
Mayor Meyer stated there was nothing to report out on this item.
E.3 CONFERENCE WITH LEGAL COUNSEL -- ANTICIPATED LITIGATION Mayor Meyer stated there was nothing to report out on this item.
F. ADJOURNMENT
Moved by: Jovita Mendoza, Council Member
Seconded by: Pa'tanisha Pierson, Vice Mayor
The Council, by motion, adjourned the meeting at 7:33 p.m.
Roll call vote.
Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Mayor, Pa'tanisha Pierson, Vice Mayor, Tony Oerlemans, Council Member, and Faye Maloney, Council Member
Motion Approved (5 to 0)
1 CITY COUNCIL/SUCCESSOR AGENCY MINUTES
September 8, 2026, 7:00 p.m.
A. CALL TO ORDER & ROLL CALL
Mayor Meyer called the meeting to order at 7:38 p.m.
Roll Call found the following members present: Maloney, Pierson, Mendoza, Oerlemans, and Mayor Meyer.
Council Member Maloney participated remotely via Zoom under the teleconferencing provision of Government Code § 54953(b).
B. PLEDGE OF ALLEGIANCE
Prior to leading the Pledge of Allegiance, Mayor Meyer called for a moment of silence in recognition of 25 years since the attacks of September 11, 2001.
Mayor Meyer led the Pledge of Allegiance.
C. PRESENTATIONS
C.1 Contra Costa Mosquito and Vector Control District
Nola Woods, Public Affairs Director, Contra Costa Mosquito and Vector Control District presented the item.
C.2 New Employee Introductions
Teresa Fairbanks, Interim Human Resources Director, presented the item.
D. PUBLIC COMMENTS
Mayor Meyer opened public comments.
Atharv Bansal provided comments regarding a community service initiative organized by Hindu Swayamsevak Sangh.
Youth Commissioner, Aaroah Ranjan provided updates on the Youth Commission's recent accomplishments and upcoming events.
Danny Dohrmann, Karen Rogge, and Greg Robinson provided comments regarding Fire Station 90.
Roger Cocksedge expressed appreciation for his recent interactions with City Council and City Staff.
Rudy Ramirez, Rich Ramirez, Paul Ramirez, Becky Ramirez, Kiko Ramirez, Sandy Heinisch; and Franklin, provided comments regarding the Brentwood
2 Police Department's interaction with Yolanda Ramirez on September 26, 2025.
Paul J. provided comments regarding concerns about community and social matters.
Pastor George Wordlaw, as a representative from Forward Faith City Church, provided comments inviting the Council and residents to their Community Health and Wellness Fair, being held at the Brentwood Community Center on September 19, 2026.
Ray Elizondo, owner of Meganos Well, provided comments requesting City support with navigating city processes and business-related matters.
Frank B. provided comments in support of Meganos Well.
Jean Kintscher provided comments regarding the Community Enrichment Division.
Rod Flohr provided comments regarding the Sharps Take Back program.
Ian Cohen provided comments regarding the Brentwood Police Department.
There being no additional speakers, Mayor Meyer closed public comments.
E. CONSENT CALENDAR
Moved by: Pa'tanisha Pierson, Vice Mayor
Seconded by: Jovita Mendoza, Council Member
The Council, by motion, adopted the Consent Calendar as recommended by staff, excluding Item E.3.
Roll call vote:
Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Mayor, Pa'tanisha Pierson, Vice Mayor, Tony Oerlemans, Council Member, and Faye Maloney, Council Member
Motion Approved (5 to 0)
E.1 Meeting Minutes of the City Council
Approved Special City Council Meeting Minutes of August 25, 2026; and City Council / Successor Agency Meeting Minutes of August 25, 2026.
E.2 Proclamation Recognizing September 11, 2026 as Patriot Day The Council, by proclamation, recognized September 11, 2026 as Patriot Day.
E.3 Proclamation Recognizing September 15, 2026 through October 15, 2026 as National Hispanic Heritage Month
3 Council Member Mendoza, presented the Proclamation to Dee Olmedo, founder of Soiree Love.
The Council, by proclamation, recognized September 15, 2026 through October 15, 2026 as National Hispanic Heritage Month.
Moved by: Jovita Mendoza, Council Member
Seconded by: Pa'tanisha Pierson, Vice Mayor
Roll call vote:
Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Mayor, Pa'tanisha Pierson, Vice Mayor, Tony Oerlemans, Council Member, and Faye Maloney, Council Member
Motion Approved (5 to 0)
E.4 Annexation No. 18 to Community Facilities District No. 5 Adopted Resolution 2026-91 approving Annexation No. 18 Boundary Map for City of Brentwood (“City”) Community Facilities District (“CFD”) No. 5.; and adopted Resolution 2026-92 of intention to annex territory to Community Facilities District No. 5, levy a special tax within the territory and set October 27, 2026, at 7:00 p.m., or as soon thereafter as the matter may be heard, as the date and time for the public hearing.
E.5 Growth Management Checklist for calendar years 2024 and 2025 for allocation of Measure J Local Street Maintenance & Improvement funds Adopted Resolution 2026-93 approving the completed Measure J Growth Management Program Compliance Checklist (“Compliance Checklist”) for calendar years 2024 and 2025, certifying that the City of Brentwood is in compliance with the Measure J Growth Management Program and authorizing the City Manager or designee to execute and submit the Compliance Checklist for calendar years 2024 and 2025 to the Contra Costa Transportation Authority (“CCTA”) for allocation of Measure J Local Street Maintenance & Improvement funds.
E.6 A Resolution rescheduling the regular City Council meeting of September 22, 2026, to September 21, 2026
Adopted Resolution 2026-94 rescheduling the regular City Council meeting of September 22, 2026, to September 21, 2026, at 7:00 p.m.
F. PUBLIC HEARINGS
F.1 Amendment to 2025/26 Cost Allocation Plan and Schedule of City Fees to Change the Effective Date of Second Street Event Lot Rental Fees Thien Nguyen, Recreation Manager, presented the item.
4 Mayor Meyer opened the public hearing.
Tom Gregory and Greg Robinson provided comment in support of additional public parking.
There being no additional speakers, Council Member Mendoza moved to close the public hearing, seconded by Council Member Pierson.
The motion to close the public hearing carried unanimously, by roll call vote, with Council Member Maloney, Council Member Mendoza, Vice Mayor Pierson, Council Member Oerlemans and Mayor Meyer in favor.
Moved by: Jovita Mendoza, Council Member
Seconded by: Pa'tanisha Pierson, Vice Mayor
Adopted Resolution 2026-95 amending Resolution No. 2026-66 and the City of Brentwood 2025/26 Cost Allocation Plan and Schedule of City Fees to change the effective date of the Second Street Event Lot rental fees from November 1, 2026, to September 8, 2026.
Roll call vote:
Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Mayor, Pa'tanisha Pierson, Vice Mayor, Tony Oerlemans, Council Member, and Faye Maloney, Council Member
Motion Approved (5 to 0)
G. BUSINESS ITEMS
G.1 Downtown Specific Plan Amendment discussion related to Body Art including permanent makeup and tattoo facilities
Jennifer Hagen, Principal Planner, presented the item.
Mayor Meyer opened public comments.
Estella Juarez, Chris Juarez, Tom Gregory and Chris provided comments in support of tattoo parlors in downtown Brentwood.
Rod Flohr, Sinziana Todor and Tracie Kasamoto provided comments opposing tattoo parlors in downtown Brentwood.
Vanessa Vincent, owner of Studio V provided clarification regarding her business services.
There being no additional speakers, Mayor Meyer closed public comments.
5 Moved by: Pa'tanisha Pierson, Vice Mayor
Seconded by: Tony Oerlemans, Council Member
The Council, by motion, directed staff to spend time and resources to:
define body art separately and classify it as a separate land use; and
prohibit body art within the first 65 feet of the first floor along Oak Street and First Street; and
require an administrative body art license/permit; and allow the two existing downtown body art facilities to continue operating; and
allow up to two additional body art establishments to apply for permits, for a total of four establishments in downtown Brentwood.
Roll call vote:
Ayes (3): Pa'tanisha Pierson, Vice Mayor, Tony Oerlemans, Council Member, and Faye Maloney, Council Member
Noes (2): Jovita Mendoza, Council Member, and Susannah Meyer, Mayor
Motion Approved (3 to 2)
H. INFORMATIONAL REPORTS FROM COUNCIL MEMBERS, COMMITTEES,
LIAISONS, AND STAFF
Council Member Oerlemans reported on attendance at the Tri Delta Transit Board Meeting; the Downtown Brentwood Coalition general meeting; promotional ceremony for Sergeant Ilonka Inerbichler; and a City Council agenda review meeting.
Council Member Maloney reported on attendance at a meeting with Lillian Pierce of the Brentwood Regional Community Chest; attended a meeting with Landscape and Lighting Assessment Districts with City of Brentwood Finance Department; attended The Contra Costa Women’s Elected Leaders Luncheon in Pleasant Hill; attended the City of Brentwood Budget and Debt Management Ad-Hoc committee meeting; attended the Brentwood School Interagency Committee meeting and visited businesses downtown.
Council Member Mendoza reported on attendance at a TEACH (Together, Educating, Advocating, Coaching, Helping) event at Trilogy at the Vineyards; 101st anniversary celebration of the Veterans of Foreign Wars; City of Brentwood Budget and Debt Management Ad-Hoc committee meeting; Downtown Brentwood Coalition general meeting and a League of California Cities meeting.
6 Vice Mayor Pierson reported on attendance at a Juneteenth debrief meeting.
Mayor Meyer reported on attendance at the Tri Delta Transit Board Meeting; met with Dr. Samir Noor, Principal of Pioneer Elementary School; attended a TEACH (Together, Educating, Advocating, Coaching, Helping) event at Trilogy at the Vineyards; the Contra Costa Women’s Elected Leaders Luncheon in Pleasant Hill; Contra Costa Business conference; Downtown Brentwood Coalition general meeting; Agricultural Enterprise Committee meeting; presented the State of the City and updates to the Brentwood Lions Club; League of California Cities meeting; Mayor's conference in the City of Moraga and met with a Parks and Recreation Commissioner.
Terrance Davis, Acting City Manager, reported on City Staff hosting a booth at the Farmers Market.
Thomas Lloyd Smith, City Attorney, reported on new hire, Deputy City Attorney Michelle Magarrell.
I. REQUEST FOR FUTURE AGENDA ITEMS - NEW REQUEST(S)
Consider a request from Council Member Mendoza and Mayor Meyer to review and update the Downtown Specific Plan.
J. ADJOURNMENT
Moved by: Jovita Mendoza, Council Member
Seconded by: Pa'tanisha Pierson, Vice Mayor
The Council, by motion, adjourned the meeting at 10:16 p.m.
Roll call vote:
Ayes (5): Jovita Mendoza, Council Member, Susannah Meyer, Mayor, Pa'tanisha Pierson, Vice Mayor, Tony Oerlemans, Council Member, and Faye Maloney, Council Member
Motion Approved (5 to 0)
PROCLAMATION
WHEREAS, Human Resources professionals play an essential role in building strong workplaces by supporting employees, fostering positive workplace cultures, and helping organizations attract and retain talented people; and
WHEREAS, Human Resources professionals help employees and organizations navigate change, develop their skills, and create opportunities for growth, collaboration, and success; and
WHEREAS, as workplaces continue to evolve through new
technologies and changing expectations, Human Resources professionals help ensure that innovation remains grounded in empathy, fairness, connection, and the human experience; and
WHEREAS, the City of Brentwood recognizes the dedication, professionalism, and behind-the-scenes contributions of Human Resources professionals who help make our workplaces stronger, more welcoming, and ready for the future.
NOW, THEREFORE, BE IT PROCLAIMED, that the City Council of the City of Brentwood does hereby recognize September 26, 2026 as
HUMAN RESOURCES PROFESSIONAL DAY
and encourages all residents and organizations to take a moment to recognize and appreciate the Human Resources professionals who support employees, strengthen workplaces, and help our community move forward with compassion, collaboration, and optimism.
Dated this 21st day of September, 2026
Susannah Meyer, Mayor
PROCLAMATION
WHEREAS, the brave men and women who have served our nation overseas have demonstrated extraordinary courage, dedication, and sacrifice in defense of our freedoms and communities; and
WHEREAS, the Veterans of Foreign Wars of the United States (VFW) provides meaningful support to veterans, service members, military families, and communities through camaraderie, advocacy, education, and service; and
WHEREAS, the VFW’s 2026–2027 theme, “One Team. One Mission.
Veterans First.”, reflects the importance of working together to honor veterans, strengthen communities, and ensure that those who served continue to receive support and recognition; and
WHEREAS, as our nation celebrates its 250th anniversary in 2026, the City of Brentwood recognizes the generations of veterans whose service and sacrifice have helped preserve the freedoms and opportunities that continue to shape our communities.
NOW, THEREFORE, BE IT PROCLAIMED, that the City Council of the City of Brentwood does hereby recognize September 29, 2026 as
NATIONAL VETERANS OF FOREIGN WARS DAY
and encourages all residents to join together in expressing gratitude to veterans of foreign wars, celebrating their service and contributions, and supporting veterans and their families throughout our community.
Dated this 21st day of September, 2026
Susannah Meyer, Mayor
PROCLAMATION
WHEREAS, October is recognized nationally as Breast Cancer Awareness Month, bringing communities together to increase awareness, encourage early detection, and support individuals and families affected by breast cancer; and
WHEREAS, early detection and timely access to screening and care can save lives, and every person deserves the opportunity to prioritize their breast health regardless of income or circumstances; and
WHEREAS, the City of Brentwood honors the courage and resilience of those living with breast cancer, celebrates survivors and caregivers, remembers those we have lost, and recognizes that no one should have to face this journey alone; and
WHEREAS, throughout October, our community can turn awareness into action by sharing information, supporting loved ones, participating in local efforts, and encouraging one another to take important steps toward better health and brighter futures.
NOW, THEREFORE, BE IT PROCLAIMED, that the City Council of the City of Brentwood does hereby recognize October 2026 as
BREAST CANCER AWARENESS MONTH
and encourages all residents to pause in remembrance, honor those who served and sacrificed, perform an act of kindness or service, and reflect on the remarkable strength found when neighbors stand together.
Dated this 21st day of September, 2026
Susannah Meyer, Mayor
PROCLAMATION
WHEREAS, technology connects our residents, businesses, schools, and community every day, making cybersecurity an important part of protecting the information, services, and opportunities we all rely upon; and WHEREAS, October is recognized as Cybersecurity Awareness Month, encouraging individuals, families, businesses, and organizations to practice simple habits that help keep our digital lives safe and secure; and WHEREAS, the 2026 national theme, “Securing the Next 250,” calls upon communities to strengthen our digital resilience and help build a safer, more secure digital future as our nation celebrates its 250th anniversary; and WHEREAS, by using strong passwords, enabling multifactor authentication, recognizing phishing attempts, keeping software updated, and staying informed, each of us can help “Don’t Make It Easy for Them” and make a positive difference in protecting our community from cyber threats.
NOW, THEREFORE, BE IT PROCLAIMED, that the City Council of the City of Brentwood does hereby recognize October 2026 as
CYBERSECURITY AWARENESS MONTH
and encourages all residents, businesses, and organizations to take simple steps to stay safe online, protect personal information, and work together to Secure the Next 250 and build a stronger, safer, and more connected Brentwood.
Dated this 21st day of September, 2026
Susannah Meyer, Mayor
PROCLAMATION
WHEREAS, Domestic Violence Awareness Month is recognized each October as an opportunity to raise awareness, support survivors, and bring communities together to promote safe, healthy, and respectful relationships; and
WHEREAS, the 2026 national Domestic Violence Awareness Month theme, “With Survivors, Always,” calls upon communities to move from awareness to action and stand alongside survivors with safety, support, solidarity, and hope; and
WHEREAS, the City of Brentwood recognizes the courage and resilience of survivors and the dedication of advocates, service providers, law enforcement, and community members who work every day to prevent domestic violence and help individuals and families build brighter futures; and WHEREAS, creating a safer Brentwood begins with compassion, education, connection, and a shared commitment to ensuring that everyone has the opportunity to live free from violence and fear.
NOW, THEREFORE, BE IT PROCLAIMED, that the City Council of the City of Brentwood does hereby recognize October 2026 as
DOMESTIC VIOLENCE AWARENESS MONTH
and encourages all residents to stand With Survivors, Always by learning about domestic violence, supporting those affected, sharing resources, and taking action to help build a safer, healthier, and more caring community for all.
Dated this 21st day of September, 2026
Susannah Meyer, Mayor
PROCLAMATION
WHEREAS, Filipino American History Month is celebrated each October to recognize the rich history, culture, accomplishments, and enduring contributions of Filipino Americans to the United States; WHEREAS, Filipino Americans have helped shape our nation through their contributions in education, healthcare, business, agriculture, public service, the arts, science, technology, and countless other fields; WHEREAS, the City of Brentwood proudly recognizes the Filipino American community for its vibrant traditions, strong family values, civic engagement, and commitment to building welcoming and thriving communities; and
WHEREAS, celebrating Filipino American history provides an opportunity to honor the generations who came before us, celebrate the accomplishments of today, and inspire future generations to lead, serve, and make a positive difference in our community and beyond.
NOW, THEREFORE, BE IT PROCLAIMED, that the City Council of the City of Brentwood does hereby recognize October 2026 as
FILIPINO AMERICAN HISTORY MONTH
and encourages all residents to celebrate the rich history, culture, achievements, and contributions of Filipino Americans and to embrace the spirit of community, perseverance, and shared success that strengthens Brentwood and our nation.
Dated this 21st day of September, 2026
Susannah Meyer, Mayor
PROCLAMATION
WHEREAS, October is recognized as Italian American Heritage Month, providing an opportunity to celebrate the rich history, traditions, culture, and enduring contributions of Italian Americans throughout the United States; and
WHEREAS, Italian Americans have enriched our nation through achievements in the arts, sciences, education, business, public service, agriculture, and countless other fields, helping strengthen the communities in which they live; and
WHEREAS, the 2026 ItalianAmerica250: Renaissance Roots, American Story celebration recognizes the longstanding Italian and Italian American contributions woven into the story of our nation and honors the values of innovation, creativity, civic engagement, and service passed from generation to generation; and
WHEREAS, the City of Brentwood celebrates the Italian American families, organizations, businesses, and community members whose traditions, accomplishments, and generosity continue to add to the vibrant and welcoming character of our community.
NOW, THEREFORE, BE IT PROCLAIMED, that the City Council of the City of Brentwood does hereby recognize October 2026 as
ITALIAN AMERICAN HERITAGE MONTH
and encourages all residents to celebrate the rich heritage, traditions, accomplishments, and contributions of Italian Americans and to embrace the many cultures and stories that help make Brentwood a strong, vibrant, and connected community.
Dated this 21st day of September, 2026
Susannah Meyer, Mayor
PROCLAMATION
WHEREAS, thoughtful community planning helps create safe, vibrant, resilient, and welcoming places where residents can live, work, learn, and thrive; and
WHEREAS, planners serve as the “Captains of the Ship,” bringing together vision, expertise, and community input to help navigate responsible growth and guide Brentwood’s future; and
WHEREAS, the City of Brentwood recognizes the important contributions of planners, residents, businesses, community leaders, and public agencies who work together to strengthen our neighborhoods, transportation systems, housing opportunities, and public spaces; and
WHEREAS, National Community Planning Month provides an
opportunity to celebrate the positive impact of planning and encourage residents to participate in shaping the future of their community.
NOW, THEREFORE, BE IT PROCLAIMED, that the City Council of the City of Brentwood does hereby recognize October 2026 as
NATIONAL COMMUNITY PLANNING MONTH
and encourages all residents to learn more about the planning process, share their ideas, and celebrate the people and partnerships that help make Brentwood a wonderful place to live, work, and grow.
Dated this 21st day of September, 2026
Susannah Meyer, Mayor
PROCLAMATION
WHEREAS, Polish American Heritage Month is celebrated each October to honor the rich history, culture, traditions, and contributions of Americans of Polish descent, whose heritage has become an important part of the American story; and
WHEREAS, 2026 marks the 418th anniversary of Polish settlers arriving in Jamestown in 1608, as well as the 45th anniversary of the national observance of Polish American Heritage Month; and
WHEREAS, Polish Americans have enriched our nation through contributions to the arts, sciences, education, business, military service, civic life, and countless other fields, while preserving traditions that connect generations and strengthen communities; and
WHEREAS, the City of Brentwood celebrates the Polish American community and the many ways its heritage, traditions, accomplishments, and enduring spirit contribute to the diversity and vitality of our community.
NOW, THEREFORE, BE IT PROCLAIMED, that the City Council of the City of Brentwood does hereby recognize October 2026 as
POLISH AMERICAN HERITAGE MONTH
and encourages all residents to celebrate the rich heritage, traditions, accomplishments, and contributions of Polish Americans and to embrace the many cultures and stories that help make Brentwood a vibrant and welcoming community.
Dated this 21st day of September, 2026
Susannah Meyer, Mayor
PROCLAMATION
WHEREAS, code enforcement professionals help protect the health, safety, and quality of life of our community by promoting compliance with local codes and regulations; and
WHEREAS, Code Enforcement Officers work each day to preserve safe, attractive, and well-maintained neighborhoods while helping residents, businesses, and property owners understand and meet community standards; and
WHEREAS, effective code enforcement strengthens neighborhoods, supports responsible development, and contributes to a thriving community that is “Built to Last,” reflecting the International Code Council’s 2026 Building Safety Month theme; and
WHEREAS, the City of Brentwood recognizes and appreciates the professionalism, dedication, patience, and commitment of its Code Enforcement team and all those who work to make our community a safe and welcoming place to live, work, and visit.
NOW, THEREFORE, BE IT PROCLAIMED, that the City Council of the City of Brentwood does hereby recognize October 11–17, 2026 as
CODE ENFORCEMENT APPRECIATION WEEK
and encourages all residents to join us in recognizing the important role our Code Enforcement professionals play in keeping Brentwood safe, vibrant, and welcoming for everyone.
Dated this 21st day of September, 2026
Susannah Meyer, Mayor
PROCLAMATION
WHEREAS, Indigenous peoples have lived on and cared for the lands and waters of this nation since time immemorial, building vibrant cultures, communities, and traditions that continue to enrich our country; and WHEREAS, the City of Brentwood recognizes the strength, resilience, knowledge, and enduring contributions of Indigenous peoples and honors the diverse Tribal Nations and Indigenous communities whose histories remain an important part of our shared story; and
WHEREAS, Indigenous Peoples’ Day provides an opportunity to celebrate living cultures and traditions, promote accurate and respectful understanding, and recognize the importance of Indigenous voices, sovereignty, and self-determination; and
WHEREAS, by learning from the past, honoring the present, and embracing the contributions of Indigenous peoples, our community can build greater understanding, connection, and hope for generations to come.
NOW, THEREFORE, BE IT PROCLAIMED, that the City Council of the City of Brentwood does hereby recognize October 12, 2026 as INDIGENOUS PEOPLES’ DAY
and encourages all residents to celebrate the rich cultures, histories, traditions, and contributions of Indigenous peoples and to foster a community grounded in respect, understanding, and appreciation.
Dated this 21st day of September, 2026
Susannah Meyer, Mayor
CITY COUNCIL AGENDA ITEM NO. D.13
09/21/2026
SUBJECT: Award of a Public Works Contract for Installation of Re-Top (ReNew) Maintenance Surfacing for the Universal Abilities Playground at Veterans Park; and amendment of the FY 2026/27 Operating Budget
DEPARTMENT: Parks and Recreation Department
STAFF: E. Harith Aleem Jr., Director of Parks and Recreation Aaron Wanden, Park Maintenance Manager
Brian Johnson, Park Maintenance Supervisor
TITLE/RECOMMENDATION
Adopt a Resolution approving a public works contract with Robertson Industries, Inc. (“Robertson”) for installation of Re-Top (ReNew) Maintenance Surfacing for the universal abilities playground at Veterans Park, located at 3841 Balfour Road, in an amount not to exceed $73,883.25, authorizing the City Manager or designee to execute the public works contract and related documents necessary to implement the contract, and amending the FY 2026/27 Parks and LLAD Replacement Fund Operating Budget in the amount of $73,884 for this expense.
The project is exempt from the California Environmental Quality Act (CEQA), pursuant to Section 15301, Class 1, Existing Facilities, including subdivision (d), of the CEQA Guidelines because the project consists of the repair and rehabilitation of deteriorated existing playground safety surfacing through installation of a maintenance layer over the existing surfacing, with no expansion of the existing use.
FISCAL IMPACT
If approved, the total cost of the contract would be $73,883.25 and would be funded by the Parks and LLAD Replacement Fund. The cost of the contract would require amending the FY 2026/27 Parks and LLAD Replacement Fund Operating Budget in the amount of $73,884.
The Parks and LLAD Replacement Fund accumulates resources for the repair and replacement of amenities in City parks and LLADs. Contributions to the Parks and LLAD Replacement Fund are received from the City’s LLADs, Citywide Park
CITY COUNCIL AGENDA ITEM NO. D.13
09/21/2026
Maintenance District and the General Fund. The Parks and LLAD Replacement Fund has sufficient cash balance available to fund this project.
No additional maintenance costs will be incurred as a result of the installation of this layer of maintenance surfacing. Maintenance costs for Veterans Park is included in the 2026/27 Citywide Park Assessment District Operating Budget.
BACKGROUND
Veterans Park was originally constructed in 2003. In 2013, a universal abilities playground was constructed that includes poured in place rubberized safety surfacing. Park Maintenance staff regularly inspects the park and the playground components for any maintenance and safety issues. Inspections have identified several areas of the rubberized safety surfacing that have become worn from high use, age of the material, and exposure to the elements. For safety purposes, staff recommends installation of a new maintenance layer over the existing safety surfacing for this highly utilized playground.
Pursuant to section 3.3 of Council/Administrative Policy No. 10-7, Purchasing Policy, public projects must be procured in accordance with the California Uniform Public Construction Cost Accounting Act and Chapter 3.30 of the Brentwood Municipal Code.
Public Contract Code section 22032(a) permits public projects costing $75,000 or less to be performed by negotiated contract. Although competitive bidding was not required, Parks and Recreation staff solicited written quotes from three contractors on July 30, 2026. No quotes were received by the August 12, 2026 deadline.
Staff subsequently contacted Robertson, which has satisfactorily performed similar rubberized safety surfacing work for the City, and obtained a proposal in the amount of $73,883.25. Robertson is a licensed contractor, has current DIR registration, and is able to meet the City’s public works contract insurance and bonding requirements.
Staff recommends the City Council adopt a Resolution approving a public works contract with Robertson Industries, Inc. in an amount not to exceed $73,883.25, authorizing the City Manager or designee to execute the contract and related documents necessary to implement the contract, and amending the FY 2026/27 Parks and LLAD Replacement Fund Operating Budget in the amount of $73,884 to provide sufficient funding for the contract.
CITY COUNCIL AGENDA ITEM NO. D.13
09/21/2026
CITY COUNCIL STRATEGIC INITIATIVE
Not Applicable.
PREVIOUS ACTION
Previous Action by the City Council is included on Attachment 1.
DATE OF NOTICE
Not Applicable.
ENVIRONMENTAL DETERMINATION
This project is exempt from the California Environmental Quality Act (CEQA), pursuant to Section 15301, Class 1, Existing Facilities, including subdivision (d), of the CEQA Guidelines because the project consists of the repair and rehabilitation of deteriorated existing playground safety surfacing through installation of a maintenance layer over the existing surfacing, with no expansion of the existing use.
ALTERNATIVE OPTION(S)
Alternative Options to the Staff Recommendation:
1. Do not approve staff’s recommendation.
2. Continue item with direction for staff to return with additional information.
ATTACHMENT(S)
1. Previous Action
2. Resolution
3. Contract
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 June 23, 2026, by Resolution No. 2026-65, the City Council adopted the Fiscal Year 2026/27 – 2027/28 Operating Budget.
RESOLUTION NO. 2026-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
BRENTWOOD APPROVING A PUBLIC WORKS CONTRACT WITH
ROBERTSON INDUSTRIES, INC. FOR INSTALLATION OF RE-TOP
(RENEW) MAINTENANCE SURFACING FOR THE UNIVERSAL
ABILITIES PLAYGROUND, LOCATED AT 3841 BALFOUR ROAD,
IN AN AMOUNT NOT TO EXCEED $73,883.25, AUTHORIZING THE
CITY MANAGER OR DESIGNEE TO EXECUTE THE CONTRACT AND
RELATED DOCUMENTS NECESSARY TO IMPLEMENT THE
CONTRACT, AND AMENDING THE FY 2026/27 PARKS AND LLAD
REPLACEMENT FUND OPERATING BUDGET IN THE AMOUNT OF
$73,884
WHEREAS, Veterans Park was constructed in 2003; and
WHEREAS, in 2013, construction of the Veterans Park Universal Abilities Playground was completed; and
WHEREAS, since the Universal Abilities Playground at Veterans Park was constructed in 2013, high use of the playground, age of the material, and exposure to the elements has resulted in several areas of the safety surfacing having significant damage that requires a layer of maintenance surfacing to be installed; and WHEREAS, on June 23, 2026, by Resolution No. 2026-65, the City Council adopted the Fiscal Year 2026/27 – 2027/28 Operating Budget; and WHEREAS, pursuant to section 3.3 of Council/Administrative Policy No. 10-7, Purchasing Policy, public projects must be procured in accordance with the California Uniform Public Construction Cost Accounting Act and Chapter 3.30 of the Brentwood Municipal Code; and
WHEREAS, Public Contract Code section 22032(a) permits public projects costing $75,000 or less to be performed by negotiated contract; and WHEREAS, although competitive bidding was not required, Parks and Recreation staff solicited written quotes from three contractors on July 30, 2026, and no quotes were received by the August 12, 2026 deadline; and WHEREAS, staff subsequently obtained a proposal from Robertson Industries, Inc. in the amount of $73,883.25; and
WHEREAS, Robertson Industries, Inc. previously performed rubberized safety surfacing work satisfactorily for the City’s parks; and
WHEREAS, Robertson Industries, Inc. is a licensed contractor, has current DIR registration, and is able to meet the City’s public works contract insurance and bonding requirements; and
WHEREAS, the project is exempt from the California Environmental Quality Act pursuant to Section 15301, Class 1, Existing Facilities, including subsection (d), of the CEQA Guidelines because the project consists of the repair and rehabilitation of deteriorated existing playground safety surfacing through installation of a maintenance layer over the existing surfacing, with no expansion of the existing use.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brentwood hereby:
1. Finds that the project is exempt from the California Environmental Quality Act pursuant to Section 15301, Class 1, Existing Facilities, including subdivision (d) of the CEQA Guidelines because the project consists of the repair and rehabilitation of deteriorated existing playground safety surfacing through installation of a maintenance layer over the existing surfacing, with no expansion of the existing use;
2. Approves a public works contract with Robertson Industries, Inc. for installation of a maintenance layer over the rubberized safety surfacing at the Veterans Park Universal Abilities Playground, located at 3841 Balfour Road, in an amount not to exceed $73,883.25;
3. Authorizes the City Manager or designee to execute the public works contract and related documents necessary to implement the contract in a form approved by the City Attorney; and
4. Amends the FY 2026/27 Parks and LLAD Replacement Fund Operating Budget in an amount not to exceed $73,884.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 21st day of September 2026 by the following vote:
Approved by City Attorney, dated 02/10/2025 Up to $75,000 Contract
Public Works Contract for Projects up to $75,000
This public works contract (“Contract”) is entered into as of the ____ day of _________________, 2026 by and between the City of Brentwood (“City”) and Robertson Industries, Inc. (“Contractor”), an Arizona corporation, for installation of Re-Top (ReNew) Maintenance Surfacing for the Veterans Park Universal Abilities Playground.
The parties agree as follows:
1. Scope of Work. Contractor will perform and provide all labor, materials, equipment, supplies, transportation, and any and all other items or services necessary to perform and complete the work, as specified in Exhibit A, Scope of Work (“Work”), and according to the terms and conditions of this Contract, including all attachments to the Contract and any other documents and statutes incorporated by reference. To the extent that any attachment contains provisions that conflict or are inconsistent with the terms set forth in the body of this Contract, the Contract terms will control.
2. Contract Price. As full and complete compensation for Contractor’s timely performance and completion of the Work in strict accordance with the terms and conditions of the Contract, City will pay Contractor the not to exceed amount of $73,883.25 (the “Contract Price”) for all of Contractor’s direct and indirect costs to perform the Work, including all labor, materials, supplies, equipment, taxes, insurance, bonds and all overhead costs, in accordance with the payment provisions contained herein.
No other compensation for the Work will be allowed except for items covered by subsequent written amendments to this Contract.
2.1 Payment. Contractor must submit an invoice on the first day of each month during the Contract Time, defined in Section 3 below, and/or upon completion, for the Work performed during the preceding month, itemizing labor, materials, equipment and any incidental costs incurred. Contractor warrants that title to all work, materials and equipment incorporated into the Work will pass to City free of any claims, liens, or encumbrances upon payment to Contractor.
2.2 Payment and Performance Bonds. If the Contract Price is over $25,000, then Contractor must provide City with a payment bond and a performance bond using the bond forms included in this Contract as Exhibit B, Bond Forms, and submit the bonds within ten days following issuance of the notice of award and before performing any Work, each for at least 100% of the maximum Contract Price set forth in Section 2, Contract Price. Each bond must be issued by a surety admitted in California. If an issuing surety cancels a bond or becomes insolvent, Contractor must provide a substitute bond from a surety acceptable to City within seven days after written notice from City. If Contractor fails to substitute an acceptable surety within the specified time, City may, in its sole discretion and without prior notice to Contractor, purchase such bond(s) at Contractor’s expense and deduct the cost from payments otherwise due to Contractor, or terminate the Contract.
If the Contract Price increases during the Work 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 provided by the City.
2.3 Retention. City reserves the right to withhold a 5% retention until 35 days after City has recorded a Notice of Completion. If retention is withheld under this Contract, substitution of appropriate securities in lieu of withholding retention from progress payments will be permitted under Public Contract Code Section 22300.
3. Contract Time. Unless earlier terminated, the term of this Contract will be in effect from the date written above through December 31, 2026. Contractor will commence the Work immediately when
Approved by City Attorney, dated 02/10/2025 Up to $75,000 Contract
directed by a City representative, and will diligently prosecute and complete the Work. Time is of the essence in the performance of this Contract (“Contract Time”).
4. Reserved.
5. Standard of Care. All Work must be provided in a manner that meets or exceeds the standard of care applicable to the same type of work in the San Francisco Bay Area. Contractor must promptly correct, at Contractor’s sole expense, any Work that the City determines is deficient or defective.
6. Permits, Certificates, and Licenses.
6.1 General. Unless otherwise stated in Exhibit A, Contractor, at its sole expense, must obtain and maintain during the term of this Contract, all appropriate permits, certificates and licenses including, but not limited to, the required California contractor’s license.
6.2 In-Use Off-Road Diesel-Fueled Fleets. If the Work involves the use of vehicles subject to the California Air Resources Board’s In-Use Off-Road Diesel-Fueled Fleet Regulation (13 CCR § 2449 et seq.) (“Off-Road Regulation”), Contractor must submit to City, with the executed Contract, valid Certificates of Reported Compliance for its fleet and its listed subcontractors, if applicable, in accordance with the Off-Road Regulation, and must comply with the Off-Road Regulation, unless exempt thereunder.
7. Business License. Contractor will obtain and maintain a City of Brentwood business license for the term of the Contract.
8. Indemnification. Contractor will indemnify, defend with counsel acceptable to City, and hold harmless to the full extent permitted by law, City, its officers, agents, employees, and volunteers from and against any and all liability, demands, loss, damage, claims, settlements, expenses, and costs (including, without limitation, attorney fees, expert witness fees, and costs and fees of litigation) (collectively, “Liability”) of every nature arising out of or in connection with Contractor’s acts or omissions with respect to this Contract, except such Liability caused by the active negligence, sole negligence, or willful misconduct of the City. This indemnification obligation is not limited by any limitation on the amount or type of damages or compensation payable under Workers’ Compensation or other employee benefit acts, or by insurance coverage limits, and will survive the expiration or early termination of this Contract. City will notify Contractor of any third-party claim pursuant to Public Contract Code section 9201.
9. Insurance. Contractor will, at all times under this Contract, maintain the insurance coverage required in this section to cover the activities of Contractor and any subcontractors relating to or arising from performance of the Work, unless Risk Manager or City Manager, in consultation with the City Attorney approves a lower amount. Each policy must be issued by a company admitted and authorized to do business in California, and with a strength and size rating from A.M. Best Company of A-VIII or better.
Contractor must provide City with certificates of insurance and required endorsements as evidence of coverage with the executed Contract and before the City authorizes Contractor to proceed with the Work.
9.1 Liability. Commercial General Liability (“CGL”) insurance issued on an occurrence basis, including coverage for liability arising from Contractor’s or its subcontractor’s acts or omissions in performing the Work, including Contractor’s protected coverage, blanket contractual, products and completed operations, broad form property damage, vehicular coverage, and employer’s non-ownership liability coverage, with limits of at least $2,000,000 per occurrence. This policy does not exclude explosion, collapse, underground excavation hazard, or removal of lateral support. 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.
9.2 Automotive. Commercial automotive liability coverage for owned, non-owned and hired vehicles must provide coverage of at least $1,000,000 combined single limit per accident for bodily injury, death, or property damage.
Approved by City Attorney, dated 02/10/2025 Up to $75,000 Contract
9.3 Workers’ Compensation. Statutory coverage is required by the California Workers’ Compensation Insurance and Safety Act. If Contractor is self-insured, it must provide its duly authorized Certificate of Permission to Self-Insure.
9.4 Waiver of Subrogation. Each required policy must contain a waiver of subrogation for the benefit of the City.
9.5 Required Endorsements.
(1) The CGL policy and the automotive liability policy must include the following specific endorsements:
a. The City, including its officers, employees, agents, and volunteers (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. b. The insurance provided is primary and no insurance held or owned by City may be called upon to contribute to a loss.
(2) The Workers Compensation policy must include a waiver of subrogation endorsement for the benefit of the City.
9.6 Submission of Insurance. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements.
9.7 Cancellation. Insurance will be in force during the life of the Contract and any extensions of it, and insurance will not be canceled without 30 days prior written notice to City sent pursuant to the notice provisions of this Contract.
9.8 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach of this Contract, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Contract.
10. Labor Code Compliance. Unless the Contract Price is $1,000 or less, the Contract is subject to all applicable requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code, beginning at section 1720, and the related regulations, including but not limited to requirements pertaining to wages, working hours and workers’ compensation insurance. Contractor must also post all job site notices required by laws or regulations pursuant to Labor Code section 1771.4.
10.1 Prevailing Wages. Each worker performing Work under this Contract that is covered under Labor Code section 1720, 1720.3, or 1720.9, must be paid at a rate not less than the prevailing wage as defined in sections 1771 and 1774 of the Labor Code. The prevailing wage rates are on file with the City Clerk’s office and are available online at http://www.dir.ca.gov/DLSR. Pursuant to Labor Code section 1775, Contractor and any subcontractor will forfeit to City as a penalty up to $200 for each calendar day, or portion of a day, for each worker paid less than the applicable prevailing wage rate, in addition to paying each worker the difference between the applicable wage rate and the amount actually paid.
Approved by City Attorney, dated 02/10/2025 Up to $75,000 Contract
10.2 Working Day. Pursuant to Labor Code section 1810, eight hours of labor consists of a legal day’s work. Pursuant to Labor Code section 1813, Contractor will forfeit to City as a penalty the sum of $25 for each day during which a worker employed by Contractor or any subcontractor is required or permitted to work more than eight hours during any one calendar day, or more than 40 hours per calendar week, unless such workers are paid overtime wages under Labor Code section 1815. All Work must be carried out during regular City working days and hours unless otherwise specified in Exhibit A or authorized in writing by City.
10.3 Payroll Records. Contractor and its subcontractors must maintain certified payroll records in compliance with Labor Code sections 1771.4, 1776 and 1812, and all implementing regulations promulgated by the Department of Industrial Relations (“DIR”). For each payroll record, Contractor and its subcontractors must certify under penalty of perjury that the information in the record is true and correct, and that it has complied with the requirements of Labor Code sections 1771, 1811, and 1815. Unless the Contract Price is under $25,000, Contractor must electronically submit certified payroll records to the Labor Commissioner as required under California law and regulations.
10.4 Apprentices. If the Contract Price is $30,000 or more, Contractor must comply with the apprenticeship requirements in Labor Code section 1777.5.
10.5 DIR Monitoring, Enforcement, and Registration. This Work is subject to compliance monitoring and enforcement by the DIR pursuant to Labor Code section 1725.5, and, subject to the exception set forth below, Contractor and any subcontractors must be registered with the DIR to perform public works projects. The registration requirements of Labor Code section 1725.5 do not apply if the Contract Price is for under $25,000.
11. Workers’ Compensation Certification. Under Labor Code section 1861, by signing this Contract, Contractor certifies as follows: “I am aware of the provisions of Labor Code section 3700 which require every employer to be insured against liability for workers’ compensation or to undertake selfinsurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work on this Contract.”
12. Termination.
12.1 Termination for Convenience. City reserves the right to terminate all or part of the Contract for convenience upon written notice to Contractor. Upon receipt of such notice, Contractor must:
immediately stop the Work, including under any terms or conditions that may be specified in the notice; comply with City’s instructions to protect the completed Work and materials; and use its best efforts to minimize further costs. In the event of City’s termination for convenience, Contractor waives any claim for damages, including for loss of anticipated profits from the Work. If City terminates the Contract for convenience, City will only owe Contractor payment for the Work satisfactorily performed before Contract termination, as well as five percent of the total value of the Work performed as of the date of notice of termination or five percent of the value of the Work yet to be completed, whichever is less, which is deemed to cover all overhead and profit to date.
12.2 Termination for Default. The City may terminate this Contract for cause for any material default. Contractor may be deemed in default for a material breach of or inability to perform the Contract, including Contractor’s refusal or failure to supply sufficient skilled workers, proper materials, or equipment to perform the Work within the Contract Time; refusal or failure to make prompt payment to its employees, subcontractors, or suppliers or to correct rejected work; disregard of laws, regulations, ordinances, rules, or orders of any public agency with jurisdiction over the Work; lack of financial capacity to complete the Work within the Contract Time; or responsibility for any other material breach of the Contract requirements. If City terminates the Contract for cause, City will only owe Contractor payment for the Work satisfactorily performed before Contract termination.
Approved by City Attorney, dated 02/10/2025 Up to $75,000 Contract
13. Dispute Resolution. Any dispute arising under or related to this Contract is subject to the dispute resolution procedures of Public Contract Code sections 9204 and 20104 et seq., which are incorporated by reference.
14. Waiver. A waiver by City of any breach of any term, covenant, or condition in this Contract will not be deemed a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, regardless of the character of any such breach.
15. Warranty. Contractor guarantees and warrants the Work and the materials used or provided for the Work for a period of one year, beginning upon City’s acceptance of the Work as complete (“Warranty Period”). During the Warranty Period, upon notice from the City of any defect in the Work or the materials, Contractor must, at its sole expense, promptly repair or replace the defective Work or materials, including repair or replacement of any other Work or materials that is or are displaced or damaged during the warranty work, excepting any damage resulting from ordinary wear and tear.
Contractor must provide City with all manufacturer warranties applicable to the Work and materials and assign such warranties to City to the extent assignable. Any manufacturer warranty is in addition to, and does not limit, Contractor’s obligations under this Section.
16. Worksite Conditions.
16.1 Clean and Safe. Contractor must maintain the Work site and staging and storage areas in a clean and neat condition and must ensure it is safe and secure. On a daily basis the Contractor must remove and properly dispose of debris and waste materials from the Work site.
16.2 Inspection. Contractor will make the Work accessible at all times for inspection by the City.
16.3 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, as identified by any federal, state, or local law or regulation. If Contractor encounters materials on the Work 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.
16.4 Utilities, Trenching and Excavation. As required by Government Code section 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. In performing any excavations or trenching work, Contractor must comply with all applicable operator requirements in Government Code sections 4216 through 4216.5. If the trenching or excavation extends deeper than four feet below the surface, then it must also comply with Public Contract Code section 7104.
17. Records. Unless otherwise specified in Exhibit A, Contractor must maintain and update a separate set of as-built drawings while the Work is being performed, showing changes from the Work as planned in Exhibit A, or any drawings incorporated into this Contract. The as-built drawings must be updated as changes occur, on a daily basis if necessary. Contractor will maintain complete and accurate records with respect to the Work and its cost. All records will be clearly identifiable. Contractor will allow a representative of City, during normal business hours, to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Contract. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Contract during the Contract Term, and for a period of three (3) years from the date of final payment under this Contract.
18. Conflicts of Interest. Contractor, its employees, subcontractors and agents, may not have, maintain or acquire a conflict of interest in relation to this Contract in violation of any City ordinance or policy or in violation of any California law, including under Government Code section 1090 et seq. and
Approved by City Attorney, dated 02/10/2025 Up to $75,000 Contract
under the Political Reform Act as set forth in Government Code section 81000 et seq. and its accompanying regulations. Any violation of this Section constitutes a material breach of the Contract.
19. Non-Discrimination. No discrimination will be made in the employment of persons under this Contract because of the race, color, national origin, ancestry, ethnicity, religion, gender, sexual orientation, age, disability, marital status, or any other protected class, of such person.
20. Independent Contractor. City and Contractor intend that Contractor will perform the Work under this Contract as an independent contractor. Contractor is solely responsible for its means and methods in performing the Work. Contractor customarily engages in the Work as part of its independently-established trade, occupation, and/or business, separately from its work for City. Contractor is not an employee of City and is not entitled to participate in health, retirement or any other employee benefits from City. The persons used by Contractor to provide the Work under this Contract will not be considered employees of City for any purposes whatsoever.
21. Other Contractors. City reserves the right to employ other contractors in connection with the Work.
22. Assignment of Unfair Business Practice Claims. Under Public Contract Code section 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. section 15) or under the Cartwright Act (Chapter 2 (commencing with section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials 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.
23. Notice. Any notice, billing, or payment required by or pursuant to the Contract documents must be made in writing, signed, dated and sent to the other party by personal delivery, U.S. Mail, or a reliable overnight delivery service. Notice is deemed effective upon delivery unless otherwise specified. Notice for each party must be given as follows:
For City: For Contractor:
City of Brentwood Name Robertson Industries Inc.
150 City Park Way Address: 2140 E. Cedar Street
Brentwood, CA 94513 City/St/Zip Tempe, AZ 85281
Phone: (925) 516-5444 Phone: (925) 303-8577
Attn: Brian Johnson, Park Maint. Sup. Attn: Adam Vance, Sales Rep.
Email: [email protected] Email: [email protected] Copy to: [email protected] Copy to: [email protected]
24. General Provisions.
24.1 Compliance with All Laws. Contractor will comply with all applicable federal, state, and local laws and regulations including, but not limited to, unemployment insurance benefits, FICA laws, conflict of interest laws, local ordinances, and those laws and regulations enacted in response to the COVID-19 pandemic. Work may only be performed by qualified and experienced workers who are not employed by the City and who do not have any contractual relationship with City, with the exception of this Contract.
24.2 Provisions Deemed Inserted. Every provision of law required to be inserted in the Contract is deemed to be inserted, and the Contract 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 will be deemed amended accordingly.
Approved by City Attorney, dated 02/10/2025 Up to $75,000 Contract
24.3 Assignment and Successors. Contractor may not assign its rights or obligations under this Contract, in part or in whole, without City’s written consent. This Contract is binding on Contractor’s and City’s lawful heirs, successors and permitted assigns.
24.4 Third Party Beneficiaries. There are no intended third party beneficiaries to this Contract.
24.5 Governing Law and Venue. This Contract will be governed by California law and venue will be in the Superior Court of Contra Costa County, and no other place.
24.6 Amendment. No amendment or modification of this Contract will be binding unless it is in a writing duly authorized and signed by the parties to this Contract.
24.7 Integration; Severability. This Contract and the Contract documents incorporated herein, including authorized amendments or change orders thereto, constitute the final, complete, and exclusive terms of the agreement between City and Contractor. If any provision of the Contract documents, or portion of a provision, is determined to be illegal, invalid, or unenforceable, the remaining provisions of the Contract documents will remain in full force and effect.
24.8 Signatures.
24.8.1 Counterparts. This Contract may be executed in two or more counterparts, each of which together will be deemed an original, but all of which together will constitute the same instrument.
24.8.2 Digital/Electronic Signatures. Using a City-approved method, this Contract may be executed through the use of digital or electronic signatures in accordance with Government Code Section
16.5. The presence of an electronic signature on this Contract will be construed as the parties’ consent to do business electronically.
24.9 Authorization. Each individual signing below warrants that he or she is authorized to do so by the party that he or she represents, and that this Contract is legally binding on that party. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporations Code section 313.
[Signatures are on the following page.]
Approved by City Attorney, dated 02/10/2025 Up to $75,000 Contract
The parties agree to this Contract as witnessed by the signatures below:
CONTRACTOR:
By:
Tom DiScipio
CEO/Vice President of Install Group
By:
William J. Stafford
CFO/Secretary/General Manager
CITY:
By:
Terrance Davis, Acting City Manager
ATTEST:
By:
Amanda McVey, City Clerk
APPROVED AS TO FORM:
By:
Thomas Lloyd Smith, City Attorney
667261 1000002700
CA Contractor License(s) # DIR Registration #
03/31/2027 06/30/2027
License Expiration Date(s) DIR Expiration Date
If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a Corporation, Contract must be signed by one corporate officer from each of the following two groups. *Group A. **Group B.
Chairman, Secretary,
President, or Assistant Secretary,
Vice-President CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.
Exhibit A: Scope of Work
Exhibit B: Bond Forms
END OF CONTRACT
Approved by City Attorney, dated 02/10/2025 Up to $75,000 Contract
Exhibit A
SCOPE OF WORK
Upon direction from City, Contractor agrees to perform the following work at the Veterans Park Universal Abilities Playground, 3841 Balfour Road, Brentwood, CA:
Approved by City Attorney, dated 02/10/2025 Bond Forms
Exhibit B
BOND FORMS
Approved by City Attorney, dated 02/10/2025 Payment Bond Payment Bond
The City of Brentwood (“City”) and Robertson Industries, Inc. (“Contractor”) have entered into a contract for installation of Re-Top (ReNew) Maintenance Surfacing for the Veterans Park Universal Abilities Playground (“Work”). The Contract is incorporated by reference into this Payment Bond (“Bond”).
1. General. Under this Bond, Contractor as principal and ___________________________, its surety (“Surety”), are bound to City as obligee for an amount not less than the Contract Price of $73,883.25, under California Civil Code Sections 9550, et seq., to ensure payment to authorized claimants. This Bond is binding on the respective successors, assigns, owners, heirs, or executors of Surety and Contractor.
2. Surety’s Obligation. If Contractor or any of its subcontractors fails to pay a person authorized in California Civil Code § 9100 to assert a claim against a payment bond, any amounts due under the Unemployment Insurance Code with respect to work or labor performed under the Contract; or any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the Contractor and its subcontractors under California Unemployment Insurance Code § 13020 with respect to the work and labor, then Surety will pay the obligation.
3. Beneficiaries. This Bond inures to the benefit of any of the persons named in California Civil Code § 9100, so as to give a right of action to those persons or their assigns in any suit brought upon this Bond. Contractor must promptly provide a copy of this Bond upon request by any person with legal rights under this Bond.
4. Duration. If Contractor promptly makes payment of all sums for all labor, materials, and equipment furnished for use in the performance of the Work required by the Contract, in conformance with the time requirements set forth in the Contract and as required by California law, Surety’s obligations under this Bond will be null and void. Otherwise, Surety’s obligations will remain in full force and effect.
5. Waivers. Surety waives any requirement to be notified of alterations to the Contract or extensions of time for performance of the Work under the Contract. Surety waives the provisions of Civil Code §§ 2819 and 2845. City waives the requirement of a new bond for any supplemental contract under Civil Code Section 9550. Any notice to Surety may be given in the manner specified in the Contract and delivered or transmitted to Surety as follows:
Attn:
Address:
City/State/Zip:
Phone:
Fax:
Email:
6. Law and Venue. This Bond will be governed by California law, and venue for any dispute pursuant to this Bond will be 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.
[Signatures on following page.]
Approved by City Attorney, dated 02/10/2025 Payment Bond
7. Effective Date; Execution. This Bond is entered into and is effective on __________, 20__.
SURETY:
Business Name
s/
Name/Title
(Attach Acknowledgment with Notary Seal and Power of Attorney) CONTRACTOR:
Robertson Industries, Inc.
s/
Name/Title
s/
Name/Title
APPROVED BY CITY:
s/ _______________________________________________
Terrance Davis, Acting City Manager
END OF PAYMENT BOND
Approved by City Attorney, dated 2/10/2025 Performance Bond
Performance Bond
The City of Brentwood (“City”) and Robertson Industries, Inc. (“Contractor”) have entered into a contract for installation of Re-Top (ReNew) Maintenance Surfacing for the Veterans Park Universal Abilities Playground (“Work”). 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 the Contract Price of $73,883.25 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 sections 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 Work, 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 that Contractor is in default under the Contract, time being of the essence, Surety must act within seven calendar days of receipt of the notice 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 services 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. Notice to Surety must be given or made in writing and sent to the Surety via personal delivery, U.S. Mail, or a reliable overnight delivery service. Notice is deemed effective upon delivery unless otherwise specified. Notice for the Surety must be given as follows:
Attn: ______________________________________________________ Address: __________________________________________________ City/State/Zip: ______________________________________________
Approved by City Attorney, dated 2/10/2025 Performance Bond
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 Superior Court of Contra Costa County, and no other place. Surety will be responsible for City’s attorneys’ fees and costs in any action to enforce the provisions of this Bond.
9. Effective Date; Execution. This Bond is entered into and effective on ____________________, 20___.
SURETY:
___________________________________
Business Name
s/__________________________________ ______________________________ Date
___________________________________
Name, Title
(Attach Acknowledgment with Notary Seal and Power of Attorney) CONTRACTOR:
___________________________________
Robertson Industries, Inc.
s/__________________________________ ______________________________ Date
___________________________________
Name, Title
APPROVED BY CITY:
City of Brentwood
s/______________________________ ______________________________ Terrance Davis, Acting City Manager Date
END OF PERFORMANCE BOND
CITY COUNCIL AGENDA ITEM NO. D.14
09/21/2026
SUBJECT: Award of contract for Oak Meadow Park Playground Replacement; amend the FY 2026/27 – 2030/31 Capital Improvement Program; and amend the FY 2026/27 Operating Budget
DEPARTMENT: Parks and Recreation
STAFF: E. Harith Aleem Jr., Director of Parks and Recreation Aaron Wanden, Parks Maintenance Manager
Brian Johnson, Parks Maintenance Supervisor
TITLE/RECOMMENDATION
Adopt a Resolution (1) approving a contract with Park Associates Inc. dba Park Planet for the purchase and installation of playground equipment for Oak Meadow Park Playground Replacement, CIP Project No. 352-52445 (“Project”) in the amount of $372,414.75, and authorizing the City Manager or designee to execute the contract, and related documents, and to approve and execute amendments and change orders in an aggregate amount not to exceed the 10% contingency of $37,241.48, for a total contract authorization not to exceed amount of $409,656.23, (2) amending the FY 2026/27 – 2030/31 Capital Improvement Program (CIP) and (3) amending the FY 2026/27 Operating Budget to provide an additional $18,157 in funding for the Project from the Parks and LLAD Replacement Fund.
The Project is categorically exempt from the California Environmental Quality Act (CEQA), pursuant to Section 15302 of the CEQA Guidelines, because the proposed Project would remove the existing play structure, and replace it with a new play structure at the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced.
FISCAL IMPACT
If approved, award of this contract with Park Associates dba Park Planet (“Park Planet”) would be in the amount of $372,414.75 plus funding authorization for a 10% contingency amount of $37,241.48, for a total funding authorization not to exceed amount of $409,656.23 for the Project.
Funding for the Project, is included in the 2026/27 – 2030/31 CIP with an approved budget of $395,000.
CITY COUNCIL AGENDA ITEM NO. D.14
09/21/2026
The proposed contract amount plus contingency is $18,157 higher than the amount in the budget, therefore, staff recommends amending the 2026/27 – 2030/31 CIP and amending the FY 2026/27 Parks and Landscape and Lighting Assessment District (LLAD) Replacement Fund Operating Budget to provide an additional $18,157 for the Project.
CIP budget sheet Project funding and expenditure amendments recommended in this action are as follows:
Project
Expenditures Original Budget
2026/27
Amended Budget Difference
Legal $3,000 $3,000 $0
Planning and Design $500 $500 $0
Construction $391,500 $409,657 $18,157
Total Project Budget $395,000 $413,157 $18,157
The proposed Parks and LLAD Replacement Fund Operating Budget amendment is as follows:
Project Funding Original Budget
2026/27
Amended Budget Difference
Replacement – Parks
& LLAD
$395,000 $413,157 $18,157
Total Project Budget $395,000 $413,157 $18,157
The Parks and LLAD Replacement Fund has sufficient cash balance available for this replacement.
BACKGROUND
Oak Meadow Park contains a primary playground that was constructed in 2006. The existing playground consists of swings and climbing structures designed for children ages 5-12. At approximately 20 years old, the existing playground has reached the end of its useful service life.
Due to its location adjacent to an elementary school, the playground experiences heavy daily use and is showing significant signs of wear and tear. Playground features exhibit deterioration, fading from prolonged exposure to the elements, and overall
CITY COUNCIL AGENDA ITEM NO. D.14
09/21/2026
aging. The existing components are now considered outdated and need replacement to better serve the community. The replacement is also intended to bring the playground equipment and safety surfacing into conformance with current accessibility and Consumer Product Safety Commission guidelines.
Pursuant section 3.2.4 of the Purchasing Policy, services costing over $50,000 per vendor, per agreement, per fiscal year require three written quotes. On April 14, 2026, staff solicited conceptual playground proposals and quotations from three qualified vendors that included Ross Recreation (LSI), Specified Play Equipment Co. (SPEC), and Park Planet.
By May 29, 2026, staff had received three quotes and conceptual playground plans from Ross Recreation (LSI), SPEC, and Park Planet.
On June 10, 2026, staff met with the Park Playground Ad-Hoc Subcommittee, consisting of Commissioners Sandra Myers and Catherine Velasco, to review each of three conceptual playground designs. Following the Committee’s evaluation, staff requested that Park Planet revise its proposal to incorporate several recommendations made by the Committee. These revisions included:
- Adding monkey bars.
- Replacing the flat disk-style swing with traditional belt swings. - Including an ADA-accessible swing.
- Incorporating shade coverage over the swing area.
Following the meeting, staff also expressed concerns regarding the proposed woodlike slat enclosure surrounding the primary play structure. While aesthetically pleasing, staff determined that the design could limit visibility for parents and public safety personnel. Staff requested that Park Planet explore an alternative that would improve sightlines while maintaining child safety.
In response, Park Planet submitted a revised conceptual plan that replaced the woodlike slats with a mesh-style barrier system. The revised design maintained the necessary fall protection while significantly improving visibility into the play area.
Staff distributed the updated concept to the Committee for preview prior to a followup meeting.
On June 24, 2026, staff met again with the Committee to review the revised playground concept. The Committee expressed support for the updated design but requested additional shade coverage over the main play structure. Specifically, the
CITY COUNCIL AGENDA ITEM NO. D.14
09/21/2026
Committee suggested either a solid roof system or wider roof slats to provide greater protection from the sun.
Park Planet submitted a final revision featuring wider roof slats in a vibrant blue color scheme, providing an increased shade while maintaining the playground’s aesthetic.
Staff forwarded the revised concept to the Committee, which indicated support for presenting the design to the full Park and Recreation Commission (“Commission”) for consideration.
On July 23, 2026, the Commission approved by a 4-1 vote the revised conceptual plan submitted by Park Planet and recommended that the City Council select Park Planet for the Project. Park Planet’s current quote for the Project is $372,414.75.
It is the Commission’s recommendation to purchase the playground apparatus from Park Planet and to have Park Planet install the equipment, as the conceptual plans provided by Park Planet were the most inclusive. The estimated cost for the installation component of this procurement would generally be subject to public bidding because it exceeds $75,000. However, because it is in the public interest to have the Park Planet equipment installed by Park Planet, this limited installation scope may be awarded to Park Planet without public bidding based on the common law exception to public bidding. This common law exception may be applied where it is practically impossible to obtain what is required by public bidding. The common law exception applies here because playground equipment vendors do not all provide identical playground elements, and a standard set of specifications for playground equipment cannot be obtained.
Estimated delivery of the play equipment from the manufacturer is 8-10 weeks from the date of order. The estimated time for completion of this Project is Spring 2027.
CITY COUNCIL STRATEGIC INITIATIVE
Not Applicable.
PREVIOUS ACTION
Previous Action by the City Council is included on Attachment 1.
DATE OF NOTICE
Not Applicable.
CITY COUNCIL AGENDA ITEM NO. D.14
09/21/2026
ENVIRONMENTAL DETERMINATION
The Project is exempt from the California Environmental Quality Act (CEQA), pursuant to Section 15302 of the CEQA Guidelines, because the proposed Project would remove the existing play structure, and replace it with a new play structure at the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced.
ALTERNATIVE OPTION(S)
Alternative options to the staff recommendation:
1. Do not approve staff’s recommendation. Not approving staff’s recommendation would delay the park playground replacement.
2. The City Council could direct staff to evaluate a different vendor or revise the conceptual plan and return the matter for Council consideration; however, this would delay the Project and potentially affect the Project budget.
3. Continue the item with direction for staff to return with additional information.
ATTACHMENT(S)
1. Previous Action
2. Resolution
3. Contract
4. Conceptual Plan/Quote (Final)
5. Conceptual Plan/Quotes Received (May 29, 2026)
6. FY 26/27 CIP Sheet - Amended
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 26, 2026, by Resolution No. 2026-44, the City Council adopted the 2026/27 – 2030/31 Capital Improvement Program (CIP).
On June 23, 2026, by Resolution No. 2026-65, the City Council adopted the 2026/27 – 2027/28 Operating Budget.
RESOLUTION NO. 2026-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
BRENTWOOD (1) APPROVING A CONTRACT WITH PARK
ASSOCIATES INC. DBA PARK PLANET FOR THE PURCHASE AND
INSTALLATION OF PLAYGROUND EQUIPMENT FOR OAK
MEADOW PARK PLAYGROUND REPLACEMENT, CIP PROJECT NO.
352-52445 (“PROJECT”) IN THE AMOUNT OF $372,414.75, AND
AUTHORIZING THE CITY MANAGER OR DESIGNEE TO EXECUTE
THE CONTRACT AND RELATED DOCUMENTS, AND TO APPROVE
AND EXECUTE AMENDMENTS AND CHANGE ORDERS IN AN
AGGREGATE AMOUNT NOT TO EXCEED THE 10% CONTINGENCY
OF $37,241.48, FOR A TOTAL CONTRACT AUTHORIZATION NOT
TO EXCEED AMOUNT OF $409,656.23; (2) AMENDING THE FY
2026/27 – 2030/31 CAPITAL IMPROVEMENT PROGRAM (CIP);
AND (3) AMENDING THE FY 2026/27 OPERATING BUDGET TO
PROVIDE AN ADDITIONAL $18,157 IN FUNDING FOR THE
PROJECT FROM THE PARKS AND LLAD REPLACEMENT FUND
WHEREAS, in 2006, Oak Meadow Park was constructed and included a main playground footprint consisting of swings and a climbing structure for the 5-12 year age group; and
WHEREAS, the Oak Meadow Park main play structure and climbing apparatus are due to be replaced based on the industry standards of 15-20 years warranty period and life expectancy for play structures of this type; and WHEREAS, staff solicited quotes on April 14, 2026 for the Oak Meadow Park Playground Replacement CIP Project No. 352-52445 (“Project”), from three different vendors, and three concept plans with quotes were received on May 29, 2026; and WHEREAS, on May 26, 2026, by Resolution No. 2026-44, the City Council adopted the 2026/27 – 2030/31 Capital Improvement Program (CIP); and WHEREAS, during the month of June 2026, Park Playground Ad Hoc Subcommittee members Commissioners Sandra Myers and Catherine Velasco worked with staff to review conceptual plans submitted by three separate vendors that included Ross Recreation (LSI), Specified Play Equipment Co. (SPEC), and Park Associates Inc. dba Park Planet; and
WHEREAS, on June 23, 2026, by Resolution No. 2026-65, the City Council adopted the 2026/27 – 2027/28 Operating Budget; and
WHEREAS, on June 24, 2026, Parks and Recreation staff met with the Park Playground Ad-Hoc Subcommittee to review the proposed revisions to the conceptual designs submitted; and
WHEREAS, staff worked with vendors and requested changes that included adding monkey bars, replacing modern swing equipment with more traditional swings and incorporating shade coverage over the swing area; and WHEREAS, on July 23, 2026, the Park and Recreation Commission voted 4-1 to approve the conceptual plans submitted by Park Associates Inc. dba Park Planet and recommended that the City Council award a contract with Park Associates Inc. dba Park Planet for the playground replacement Project at Oak Meadow Park; and WHEREAS, staff recommends amending the 2026/27–2030/31 Capital Improvement Program (CIP) to include increase the Project budget by $18,157, from $395,000 to $413,157, which consists of an increase in the construction budget from $391,500 to $409,657; and
WHEREAS, staff recommends amending the FY 2026/27–2030/31 Operating Budget to provide an additional $18,157 in funding for the Project from the Parks and LLAD Replacement Fund; and
WHEREAS, the installation component of the Project would generally be subject to public bidding because it exceeds $75,000, however, the limited installation scope may be awarded without public bidding based on the common law exception where competitive bidding would be impracticable or would not produce an advantage to the City because it is practically impossible to obtain what is required by public bidding as playground equipment vendors do not all provide identical playground elements, and a standard set of specifications for playground equipment cannot be obtained; and
WHEREAS, the Project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15302 of the CEQA Guidelines, because the proposed Project would remove the existing play structure, and replace it with a new play structure at the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brentwood hereby:
1. Approves a contract with Park Associates Inc. dba Park Planet for the purchase and installation of playground equipment for Oak Meadow Park Playground Replacement, CIP Project No. 352-52445, in the amount of $372,414.75, and authorizes the City Manager or his designee to execute the contract and related documents in a form approved by the City Attorney;
2. Authorizes the City Manager or designee to approve and execute amendments and change orders in an aggregate amount not to exceed the 10% contingency of $37,241.48, provided that the total contract amount does not exceed $409,656.23;
3. Amends the 2026/27 – 2030/31 Capital Improvement Program to increase the Project budget from $395,000 to $413,157, as detailed in the FY 26/27 CIP Sheet – Amended; and
4. Amends the FY 2026/27 Operating Budget to increase funding for the Project by $18,157 from the Parks and LLAD Replacement Fund.
5. Finds that the Project is categorically exempt from CEQA pursuant to State CEQA Guidelines Section 15302 and directs staff to file a Notice of Exemption following adoption of this resolution.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 21st day of September 2026 by the following vote:
CONTRACT DOCUMENTS
FOR
OAK MEADOW PARK PLAYGROUND
REPLACEMENT PROJECT
CIP PROJECT NO. 352-52445
Approved by:
E. Harith Aleem Jr.
Parks and Recreation Director
Signature Date
LOCATION MAP
City of Brentwood
i
TABLE OF CONTENTS
Contract.......................................................................................................................................... 4 Recitals ........................................................................................................................................... 4 Payment Bond................................................................................................................................ 9 Performance Bond ...................................................................................................................... 11 General Conditions ..................................................................................................................... 13 Article 1 - Definitions................................................................................................................... 13 Definitions.................................................................................................................................. 13 Article 2 - Roles and Responsibilities ....................................................................................... 15
2.1 City ................................................................................................................................ 15
2.2 Contractor...................................................................................................................... 16
2.3 Subcontractors .............................................................................................................. 18
2.4 Coordination of Work..................................................................................................... 19
2.5 Submittals...................................................................................................................... 20
2.6 Shop Drawings .............................................................................................................. 20 Article 3 - Contract Documents.................................................................................................. 21
3.1 Interpretation of Contract Documents ........................................................................... 21
3.2 Order of Precedence ..................................................................................................... 22
3.3 For Reference Only ....................................................................................................... 22
3.4 Current Versions ........................................................................................................... 22
3.5 Conformed Copies ........................................................................................................ 22
3.6 Ownership. .................................................................................................................... 23 Article 4 - Bonds, Indemnity, and Insurance ............................................................................ 23
4.1 Payment and Performance Bonds ................................................................................ 23
4.2 Indemnity....................................................................................................................... 23
4.3 Insurance....................................................................................................................... 23 Article 5 - Contract Time ............................................................................................................. 26
5.1 Time is of the Essence .................................................................................................. 26
5.2 Schedule Requirements................................................................................................ 26
5.3 Delay and Extensions of Contract Time........................................................................ 28
5.4 Liquidated Damages ..................................................................................................... 31 Article 6 - Contract Modification ................................................................................................ 31
6.1 Contract Modification..................................................................................................... 31
6.2 Contractor Change Order Requests ............................................................................. 33
6.3 Adjustments to Contract Price....................................................................................... 33
6.4 Unilateral Change Order ............................................................................................... 34
6.5 Non-Compliance Deemed Waiver................................................................................. 34 Article 7 - General Construction Provisions............................................................................. 34
7.1 Permits, Fees, Business License, and Taxes ............................................................... 34
7.2 Temporary Facilities ...................................................................................................... 35
7.3 Noninterference and Site Management ........................................................................ 35
7.4 Signs.............................................................................................................................. 36
7.5 Project Site and Nearby Property Protections. ............................................................. 36
7.6 Materials and Equipment............................................................................................... 37
7.7 Substitutions.................................................................................................................. 37
7.8 Testing and Inspection .................................................................................................. 38
7.9 Project Site Conditions and Maintenance ..................................................................... 39
7.10 Instructions and Manuals .............................................................................................. 41
7.11 As-built Drawings .......................................................................................................... 41
7.12 Existing Utilities ............................................................................................................. 41
7.13 Notice of Excavation...................................................................................................... 42
7.14 Trenching and Excavations of Four Feet or More......................................................... 42
7.15 Trenching of Five Feet or More..................................................................................... 42
7.16 New Utility Connections ................................................................................................ 43
7.17 Lines and Grades. ......................................................................................................... 43
ii
7.18 Historic or Archeological Items...................................................................................... 43
7.19 Environmental Control................................................................................................... 43
7.20 Noise Control................................................................................................................. 44
7.21 Mined Materials. ............................................................................................................ 44 Article 8 - Payment ...................................................................................................................... 44
8.1 Schedule of Values ....................................................................................................... 44
8.2 Progress Payments ....................................................................................................... 44
8.3 Adjustment of Payment Application .............................................................................. 44
8.4 Early Occupancy. .......................................................................................................... 45
8.5 Retention ....................................................................................................................... 45
8.6 Payment to Subcontractors and Suppliers.................................................................... 46
8.7 Final Payment ............................................................................................................... 46
8.8 Release of Claims ......................................................................................................... 47
8.9 Warranty of Title ............................................................................................................ 47 Article 9 - Labor Provisions........................................................................................................ 47
9.1 Discrimination Prohibited............................................................................................... 47
9.2 Labor Code Requirements ............................................................................................ 47
9.3 Prevailing Wages .......................................................................................................... 47
9.4 Payroll Records ............................................................................................................. 48
9.5 Labor Compliance ......................................................................................................... 48 Article 10 - Safety Provisions..................................................................................................... 48
10.1 Safety Precautions and Programs ................................................................................ 48
10.2 Hazardous Materials ..................................................................................................... 49
10.3 Material Safety .............................................................................................................. 49
10.4 Hazardous Condition..................................................................................................... 49
10.5 Emergencies ................................................................................................................. 50 Article 11 - Completion and Warranty Provisions.................................................................... 50
11.1 Final Completion ........................................................................................................... 50
11.2 Warranty........................................................................................................................ 50
11.3 Use Prior to Final Completion ....................................................................................... 51
11.4 Substantial Completion ................................................................................................. 52 Article 12 - Dispute Resolution .................................................................................................. 52
12.1 Claims............................................................................................................................ 52
12.2 Claims Submission........................................................................................................ 53
12.3 City’s Response ............................................................................................................ 54
12.4 Meet and Confer............................................................................................................ 55
12.5 Mediation and Government Code Claims ..................................................................... 55
12.6 Tort Claims .................................................................................................................... 56
12.7 Arbitration ...................................................................................................................... 56
12.8 Burden of Proof and Limitations.................................................................................... 56
12.9 Legal Proceedings......................................................................................................... 56
12.10 Other Disputes .............................................................................................................. 56 Article 13 - Suspension and Termination.................................................................................. 56
13.1 Suspension for Cause ................................................................................................... 56
13.2 Suspension for Convenience ........................................................................................ 57
13.3 Termination for Default.................................................................................................. 57
13.4 Termination for Convenience ........................................................................................ 58
13.5 Actions Upon Termination for Default or Convenience................................................. 59 Article 14 - Miscellaneous Provisions ....................................................................................... 60
14.1 Assignment of Unfair Business Practice Claims ........................................................... 60
14.2 Provisions Deemed Inserted ......................................................................................... 60
14.3 Waiver ........................................................................................................................... 60
14.4 Titles, Headings, and Groupings................................................................................... 60
14.5 Statutory and Regulatory References ........................................................................... 60
14.6 Survival.......................................................................................................................... 60 Conceptual Plans/Quote ............................................................................................................. 61
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Oak Meadow Park Playground Replacement CA 9-5-24 CONTRACT CIP Project No. 352-52445 Page 4
Contract
This public works contract (“Contract”) is entered into by and between the City of Brentwood (“City”) and Park Planet, a division of Park Associates, Inc., a California Corporation (“Contractor”), for work on the Oak Meadow Park Playground Replacement Project, CIP Project No. 352-52445 (“Project”)
Recitals
A. City staff requested quotes and conceptual plans from multiple vendors for the purchase and installation of playground equipment.
B. Contractor submitted a price quote dated August 24,, 2026 to the City in response to its request for quotes and conceptual plans (identified as Quote No. Q26-3142, “Quote”), offering to sell and install the equipment and related materials for the Project.
C. The total amount of the Quote is $372,414.75, including labor, materials, shipping, and taxes.
D. The Quote attaches and includes a 5-page detailed list of items to be provided, and the work to be completed by Contractor, along with 5 pages of images depicting the play equipment components and drawing details for the Project.
Agreement
The parties agree as follows:
1. Award of Contract. Contractor has submitted a Quote to construct the Project in response to the City’s request for quote and conceptual plans to construct the Project. On September 21, 2026, the Brentwood City Council authorized award of this Contract to Contractor based on the Quote for the amount set forth in Section 4, below.
2. Contract Documents. The Contract Documents incorporated into this Contract include and are comprised of all of the documents listed below. The definitions provided in Article 1 of the General Conditions apply to all of the Contract Documents, including this Contract.
2.1 Contract;
2.2 Payment and Performance Bonds;
2.3 General Conditions;
2.4 Special Conditions
2.5 Quote (and attachments thereto)
2.6 Change Orders, if any;
2.7 Notice of Award; and
2.8 Notice to Proceed
3. Contractor’s Obligations. Contractor will perform all of the Work required for the Project, as specified in the Contract Documents. Contractor must provide, furnish, and supply all things necessary and incidental for the timely performance and completion of the Work, including all necessary labor, materials, supplies, tools, equipment, transportation, onsite facilities, and utilities, unless otherwise specified in the Contract Documents. Contractor must use its best efforts to diligently prosecute and complete the Work in a professional and expeditious manner and to meet or exceed the performance standards required by the Contract Documents.
Oak Meadow Park Playground Replacement CA 9-5-24 CONTRACT CIP Project No. 352-52445 Page 5
4. Payment. As full and complete compensation for Contractor’s timely performance and completion of the Work in strict accordance with the terms and conditions of the Contract Documents, City will pay Contractor $372,414.75 (“Contract Price”) for all of Contractor’s direct and indirect costs to perform the Work, including all labor, materials, supplies, equipment, taxes, insurance, bonds and all overhead costs, in accordance with the payment provisions in the General Conditions.
5. Time for Completion. Contractor will fully complete the Work for the Project, meeting all requirements for a Final Completion date of June 30, 2027 (“Contract Time”). By signing below, Contractor expressly waives any claim for delayed early completion.
6. Liquidated Damages. As further specified in Section 5.4 of the General Conditions, if Contractor fails to complete the Work within the Contract Time, City will assess liquidated damages in the amount of $500 per day for each day of unexcused delay in achieving Final Completion, and such liquidated damages may be deducted from City’s payments due or to become due to Contractor under this Contract.
7. Labor Code Compliance.
7.1 General. This Contract is subject to all applicable requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code, including requirements pertaining to wages, working hours and workers’ compensation insurance, as further specified in Article 9 of the General Conditions.
7.2 Prevailing Wages. This Project is subject to the prevailing wage requirements applicable to the locality in which the Work is to be performed for each craft, classification or type of worker needed to perform the Work, including employer payments for health and welfare, pension, vacation, apprenticeship and similar purposes. Copies of these prevailing rates are available online at http://www.dir.ca.gov/DLSR.
7.3 DIR Registration. City may not enter into the Contract with a bidder without proof that the bidder and its Subcontractors are registered with the California Department of Industrial Relations to perform public work pursuant to Labor Code § 1725.5, subject to limited legal exceptions.
8. Workers’ Compensation Certification. Pursuant to Labor Code § 1861, by signing this Contract, Contractor certifies as follows: “I am aware of the provisions of Labor Code § 3700 which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work on this Contract.”
9. Conflicts of Interest. Contractor, its employees, Subcontractors, and agents may not have, maintain, or acquire a conflict of interest in relation to this Contract in violation of any City ordinance or requirement, or in violation of any California law, including Government Code § 1090 et seq., or the Political Reform Act, as set forth in Government Code § 81000 et seq. and its accompanying regulations. Any violation of this Section constitutes a material breach of the Contract.
10. Independent Contractor. Contractor is an independent contractor under this Contract and will have control of the Work and the means and methods by which it is performed. Contractor and its Subcontractors are not employees of City and are not entitled to participate in any health, retirement, or any other employee benefits from City.
Oak Meadow Park Playground Replacement CA 9-5-24 CONTRACT CIP Project No. 352-52445 Page 6
11. Notice. Any notice, billing, or payment required by or pursuant to the Contract Documents must be made in writing, signed, dated, and sent to the other party by personal delivery, U.S.
Mail, a reliable overnight delivery service, or by email as a PDF file. Notice is deemed effective upon delivery, except that service by U.S. Mail is deemed effective on the second working day after deposit for delivery. Notice for each party must be given as follows:
City of Brentwood Contractor
Name/Title Brian Johnson
Project Manager
Gary Kimbrough
Territory Manager
Address 150 City Park Way 415 Elm Street
City/State/Zip Brentwood, CA 94513 Red Bluff, CA 96080
Phone 925-516-5444 530-410-5436
Fax 925-516-5447
Email [email protected] [email protected]
12. General Provisions.
12.1 Assignment and Successors. Contractor may not assign its rights or obligations under this Contract, in part or in whole, without City’s written consent. This Contract is binding on Contractor’s and City’s lawful heirs, successors and permitted assigns.
12.2 Third Party Beneficiaries. There are no intended third party beneficiaries to this Contract.
12.3 Governing Law and Venue. This Contract will be governed by California law and venue will be in the Contra Costa County Superior Court, and no other place.
Contractor waives any right it may have pursuant to Code of Civil Procedure § 394, to file a motion to transfer any action arising from or relating to this Contract to a venue outside of Contra Costa County, California.
12.4 Amendment. No amendment or modification of this Contract will be binding unless it is in a writing duly authorized and signed by the parties to this Contract.
12.5 Integration. This Contract and the Contract Documents incorporated herein, including authorized amendments or Change Orders thereto, constitute the final, complete, and exclusive terms of the agreement between City and Contractor.
12.6 Severability. If any provision of the Contract Documents is determined to be illegal, invalid, or unenforceable, in whole or in part, the remaining provisions of the Contract Documents will remain in full force and effect.
12.7 Iran Contracting Act. If the Contract Price exceeds $1,000,000, Contractor certifies, by signing below, that it is not identified on a list created under the Iran Contracting Act, Public Contract Code § 2200 et seq. (the “Act”), as a person engaging in investment activities in Iran, as defined in the Act, or is otherwise expressly exempt under the Act.
12.8 Authorization. Each individual signing below warrants that he or she is authorized to do so by the party that he or she represents, and that this Contract is legally binding on that party. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporations Code § 313.
Alternatively, the Contractor may attach a resolution of the corporation, certified by
Oak Meadow Park Playground Replacement CA 9-5-24 CONTRACT CIP Project No. 352-52445 Page 7
the secretary or assistant secretary under corporate seal, empowering the officer(s) signing the Contract to bind the corporation.
12.9 Digital/Electronic Signatures. Using a City-approved method, this Contract may be executed through the use of digital or electronic signatures in accordance with Government Code Section 16.5. The presence of an electronic signature on this Contract will be construed as the Parties’ consent to do business electronically.
[Signatures are on the following page.]
Oak Meadow Park Playground Replacement CA 9-5-24 CONTRACT CIP Project No. 352-52445 Page 8
The parties agree to this Contract as witnessed by the signatures below:
CITY: Approved as to form:
s/_______________________________ s/__________________________________ Terrance Davis, Acting City Manger Thomas Lloyd Smith, City Attorney Date: ___________________________ Date: ______________________________ Attest:
s/_______________________________
Amanda McVey, City Clerk
Date: ___________________________
CONTRACTOR: Park Planet, a division of Park Associates, Inc. s/_______________________________ Seal:
_________________________________
Name, Title
Date: ____________________________
Second Signature (See Section 12.8):
s/_______________________________
_________________________________
Name, Title
Date: ____________________________
#959805 4/30/2027
Contractor’s California License Number(s) and Expiration Date(s) #1000423561 6/30/2027
Department of Industrial Relations (DIR) Number and Expiration Date(s)
END OF CONTRACT
Oak Meadow Park Playground Replacement CA 02-26-24 PAYMENT BOND CIP Project No. 352-52445 Page 9
Payment 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 Oak Meadow Park Playground Replacement Project, CIP Project No. 352-52445 (“Project”). The Contract is incorporated by reference into this Payment Bond (“Bond”).
1. General. Under this Bond, Contractor as principal and ____________________________, its surety (“Surety”), are bound to City as obligee in an amount not less than $372,414.75, under California Civil Code § 9550 et seq., to ensure payment to authorized claimants. This Bond is binding on the respective successors, assigns, owners, heirs, or executors of Surety and Contractor.
2. Surety’s Obligation. If Contractor or any of its Subcontractors fails to pay a person authorized in California Civil Code § 9100 to assert a claim against a payment bond, any amounts due under the Unemployment Insurance Code with respect to work or labor performed under the Contract, or any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of Contractor and its Subcontractors under California Unemployment Insurance Code § 13020 with respect to the work and labor, then Surety will pay the obligation.
3. Beneficiaries. This Bond inures to the benefit of any of the persons named in California Civil Code § 9100, so as to give a right of action to those persons or their assigns in any suit brought upon this Bond. Contractor must promptly provide a copy of this Bond upon request by any person with legal rights under this Bond.
4. Duration. If Contractor promptly makes payment of all sums for all labor, materials, and equipment furnished for use in the performance of the Work required by the Contract, in conformance with the time requirements set forth in the Contract and as required by California law, Surety’s obligations under this Bond will be null and void. Otherwise, Surety’s obligations will remain in full force and effect.
5. Waivers. Surety waives any requirement to be notified of alterations to the Contract or extensions of time for performance of the Work under the Contract. Surety waives the provisions of Civil Code §§ 2819 and 2845. City waives the requirement of a new bond for any supplemental contract under Civil Code § 9550. Any notice to Surety may be given in the manner specified in the Contract and sent to Surety as follows:
Attn: _____________________________________________________ Address: __________________________________________________ City/State/Zip: ______________________________________________ Phone: ___________________________________________________ Email: ____________________________________________________
6. Law and Venue. This Bond will be governed by California law, and venue for any dispute pursuant to this Bond will be in the Contra Costa County Superior Court, and no other place.
Surety will be responsible for City’s attorneys’ fees and costs in any action to enforce the provisions of this Bond.
[Signatures are on the following page.]
Oak Meadow Park Playground Replacement CA 02-26-24 PAYMENT BOND CIP Project No. 352-52445 Page 10
7. Effective Date; Execution. This Bond is entered into and is effective on __________, 2026.
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/ __________________________________ ______________________________ Terrance Davis, Acting City Manager Date
END OF PAYMENT BOND
Oak Meadow Park Playground Replacement CA 02-26-24 PERFORMANCE BOND CIP Project No. 352-52445 Page 11
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 Oak Meadow Park Playground Replacement Project, CIP Project No. 352-52445 (“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 $372,414.75 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: __________________________________________________
Oak Meadow Park Playground Replacement CA 02-26-24 PERFORMANCE BOND CIP Project No. 352-52445 Page 12
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 ____________________, 2026.
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/ __________________________________ ______________________________ Terrance Davis, Acting City Manager Date
END OF PERFORMANCE BOND
Oak Meadow Park Playground Replacement CA 02-26-24 GENERAL CONDITIONS CIP Project No. 352-52445 Page 13
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
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the basis for the modification to the amount requested. City may also deduct or withhold from payment otherwise due based upon any of the circumstances and amounts listed below. Sums withheld from payment otherwise due will be released when the basis for that withholding has been remedied and no longer exists.
(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
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securities for the retention withheld by City. Any escrow agreement entered into pursuant to this provision must fully comply with Public Contract Code § 22300 and will be subject to approval as to form by City’s legal counsel. If City exercises its right to draw upon such securities in the event of default pursuant to section (7) of the statutory Escrow Agreement for Security Deposits in Lieu of Retention, pursuant to subdivision (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
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Article 12, the date of Final Payment is deemed to be the date that City acts to release undisputed retention as final payment to Contractor, or otherwise provides written notice to Contractor of Final Payment or that no undisputed funds remain available for Final Payment due to offsetting withholdings or deductions pursuant to Section 8.3, Adjustment of Payment Application. If the amount due from Contractor to City exceeds the amount of Final Payment, City retains the right to recover the balance from Contractor or its sureties.
8.8 Release of Claims. City may, at any time, require that payment of the undisputed portion of any progress payment or Final Payment be contingent upon Contractor furnishing City with a written waiver and release of all claims against City arising from or related to the portion of Work covered by those undisputed amounts subject to the limitations of Public Contract Code § 7100. Any disputed amounts may be specifically excluded from the release.
8.9 Warranty of Title. Contractor warrants that title to all work, materials, or equipment incorporated into the Work and included in a request for payment will pass over to City free of any claims, liens, or encumbrances upon payment to Contractor.
Article 9 - Labor Provisions
9.1 Discrimination Prohibited. Discrimination against any prospective or present employee engaged in the Work on grounds of race, color, ancestry, national origin, ethnicity, religion, sex, sexual orientation, age, disability, or marital status is strictly prohibited. Contractor and its Subcontractors are required to comply with all applicable Laws prohibiting discrimination, including the California Fair Employment and Housing Act (Govt. Code § 12900 et seq.), Government Code § 11135, and Labor Code §§ 1735, 1777.5, 1777.6, and 3077.5.
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.