Cotati City Council
June 28, 2022

201 West Sierra Avenue, Cotati, CA 94931-4217  TELEPH ON E 7077924600  FAX 7957067 May 13, 2022
Re: Request for Bid Proposals for the Mosaic Wall Benches at Gravenstein Hwy Project Dear Contractor:

Introduction
The City of Cotati (City) invites contractor’s bid proposals interested in the Mosaic Wall Benches at Gravenstein Hwy Project. The project generally consists of the following:
 Fabrication and installation of benches into existing masonry wall at three (3) locations as shown on Project Plans.

Minimum Qualifications
Contractor must possess a California State Contractors License Class B License.

Submittal of Bid Proposals
The bid proposal, Construction Agreement (Minor), Project Plan set and technical specifications are attached. Please review the entire agreement carefully before submitting a proposal. All questions must be submitted to the City in writing via e-mail to [email protected]; verbal questions will not be answered. If any significant omissions or ambiguities in the agreement come to the City’s attention while the draft is under review by interested firms, the City will make a uniform written response to all parties. There will be no pre-bid meeting for this project.

The bid bond has been waived for this project.

Selection Procedure
Sealed bids will be received by the City’s Public Works/Engineering Department at 201 W.

Sierra Avenue, Cotati, CA 94931 until the hour of 3:00 p.m., on the 7th day of June 2022, at which time they will be publicly read aloud on the front steps of the City of Cotati City Hall.

Proposals that do not include all of the information requested cannot be adequately evaluated.

Selection will be based on the responsive and responsible bidder with the lowest total base bid.

The City reserves the right to waive minor bid irregularities.

May 12, 2022, page 2 of 2
Contacts
For additional information please contact Craig Scott, Director of Public Works, at 707-665- 3620 or [email protected].

Sincerely,
Craig A. Scott
Director of Public Works/City Engineer
cc: Mosaic Wall Benches at Gravenstein Hwy Project File

BIDDER’S CHECK LIST
Did You:
_____ Include with your bid properly completed, accurate copies of the following documents in the following order using the forms included in the bid package:
_____ Proposal and Schedule of Bid Prices that state the bid as intended? _____ Copies of each addendum issued signed and dated on behalf of the bidder?
_____ Contractor license information?
_____ List of subcontractors?

PROPOSAL

MOSAIC WALL BENCHES AT GRAVENSTEIN HIGHWAY PROJECT
For the City of Cotati, Sonoma County, California.

TO THE HONORABLE CITY COUNCIL OF THE CITY OF COTATI
The undersigned, as bidder, declares that it has carefully examined the work, the annexed proposed form of contract, and agrees that if this Proposal is accepted to contract with the City of Cotati, under the form of contract annexed hereto, to provide all the necessary tools, apparatus, and other means of accomplishing the work as specified in the contract in the manner and time herein prescribed, and in accordance with the requirements of the Public Works Department as therein set forth, and to take in full payment thereof the following prices of the work to be done completely performed to the satisfaction of the City of Cotati, to-wit:

Contractor’s Bid Proposal

MOSAIC WALL BENCHES AT GRAVENSTEIN HIGHWAY PROJECT
Base Bid
Item Item Estimated Unit of Unit Cost Total Cost
No. Description Quantity Measure (in figures) (in figures) Pocket Park Items
1 Mobilization 1 LS
2 Fabricate & install bench at
Location A 1 LS
3 Fabricate & install bench at
Location B 1 LS
4 Fabricate & install bench at
Location C 1 LS

Subtotal:

Total Base Bid: $
Dollars Written Amount

The undersigned further agrees to deliver and to complete the work within 20 Working Days, from the date of issuance by the Public Works Department, of instructions to proceed with the work; and within 10 Calendar Days of the date of mailing of the notice of award, to enter into and execute and provide to the City the necessary contract with the necessary bonds and other required documents.

Prime Contractor: ________________________________________________ License # ________________________ Expiration Date _________________ Contractor’s DIR Public Works Registration No:
___________________________
Contractor’s License number and expiration date are herein stated under penalty of perjury.

By: _______________________________
Title: _____________________________
Dated this ________ day of _____________________, 2022
Address:
___________________________________________________________ ___________________________________________________________ Phone No.: _____________________________________

CONTRACTOR LICENSE INFORMATION
The bidder acknowledges that a license is required for performance of the

MOSAIC WALL BENCHES AT GRAVENSTEIN HIGHWAY PROJECT
The bidder holds the following California Contractors License(s):

1. License No. ___________, Class _____, Expiration Date _____________ DIR Public Works Registration No. _____________________

2. License No. ___________, Class _____, Expiration Date _____________ DIR Public Works Registration No. _____________________

3. License No. ___________, Class _____, Expiration Date _____________ DIR Public Works Registration No. _____________________

LIST OF SUBCONTRACTORS
In accordance with the requirements of the Subletting and Subcontracting Fair Practices Act, California Public Contract Code Section 4100 and following, listed below are the name, business location, and the portion (type or trade) of the Project work to be subcontracted to each subcontractor that will perform a portion of the Project work (including special fabrication and installation of a portion of the work) valued in excess of one half of one percent of the total bid price. If the Project work includes construction of streets or highways, listed below are the name, business location, and the portion (type or trade) of the Project Work to be subcontracted to each subcontractor that will perform a portion of the Project work (including special fabrication and installation of a portion of the work) valued in excess of one half of one percent of the total Project bid price, or ten thousand dollars, whichever is greater. Also listed below are the proposed subcontract dollar amount and current California Contractor’s License Number(s) for each proposed subcontractor. Bids that fail to include complete proposed subcontractor information in accordance with this form and Public Contract Code Section 4100 and following may be deemed non-responsive.

In accordance with California Public Contract Code Section 4106, for any portion of the Project work with a value of more than one half of one percent of the total bid price for which no subcontractor is listed, or for which more than one subcontractor is listed, the bidder certifies by submission of its bid that the bidder is qualified to perform that portion of the Project work and that the bidder will perform that portion of the Project work with its own forces. The penalties listed in California Public Contract Code Section 4111 will apply to any substitution of another subcontractor for a subcontractor listed below except as permitted by the City in accordance with Section 4107 and following of the California Public Contract Code.

1. Subcontractor Name ____________________________________________ Business Location ______________________________________________ Trade ________________________________________________________ Subcontract Amount ____________________________________________ Current Contractor’s License No.(s) ________________________________ Subcontractor DIR Public Works Registration No. _____________________

2. Subcontractor Name ____________________________________________ Business Location ______________________________________________ Trade ________________________________________________________ Subcontract Amount ____________________________________________ Current Contractor’s License No.(s) ________________________________ Subcontractor DIR Public Works Registration No. _____________________

3. Subcontractor Name ____________________________________________ Business Location ______________________________________________ Trade ________________________________________________________ Subcontract Amount ____________________________________________ Current Contractor’s License No.(s) ________________________________ Subcontractor DIR Public Works Registration No. _____________________

PAYMENT/LABOR AND MATERIALS BOND
(NOTE: Bidders must use this form, use of any other bond form may render a bid non-responsive)
KNOW ALL MEN BY THESE PRESENTS:

WHEREAS the City Council of the City of Cotati has awarded to ________________________________________________________ (designated as the “PRINCIPAL”) a contract for the MOSAIC WALL

BENCHES AT GRAVENSTEIN HIGHWAY PROJECT
, which contract and all of the contract documents as defined therein (designated as the “Contract”) are hereby made a part hereof; and
WHEREAS, pursuant to California Civil Code Section 3247, the PRINCIPAL is required, before entering upon the performance of the Contract, to file a payment bond with and have such bond approved by the officer or public entity by whom the Contract is awarded; and
WHEREAS, pursuant to California Civil Code Section 3248, such payment bond must be in a sum not less than one hundred percent (100%) of the total amount payable by the terms of the Contract, and must satisfy the other requirements specified in that section; and
WHEREAS, the PRINCIPAL is required in accordance with the Contract to furnish a payment bond in connection with the Contract to secure payment of claims of laborers, mechanics and materialmen employed on work under the Contract in accordance with applicable law;
NOW, THEREFORE, THESE PRESENTS WITNESSETH:

That the PRINCIPAL and the undersigned
___________________________________________________________, as surety (designated as “SURETY”), an admitted surety insurer authorized to do business in the State of California are held and firmly bound unto all laborers, material men, and all other persons named in California Civil Code Section 3181 in the sum of _________________________________________ Dollars ($___________________), lawful money of the United States, being a sum not less than one hundred percent of the total amount payable by the terms of the Contract, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, or assigns, jointly and severally, by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH that if the PRINCIPAL or any of the PRINCIPAL’s subcontractors, or the heirs, executors, administrators, successors, or assigns of any, all, or either of them, shall fail to pay any persons named in California Civil Code Section 3181, or fail to pay for any labor,

materials, provisions, provender, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or fail to pay amounts due under the Unemployment Insurance Code with respect to such work or labor, or fail to pay for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the PRINCIPAL or any subcontractors of the PRINCIPAL pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work or labor, that the SURETY will pay for the same in an amount not exceeding the amount herein above set forth, and also, in case suit is brought upon this bond, will pay a reasonable attorney’s fee to be awarded and fixed by the Court; otherwise this obligation shall be void.

It is hereby expressly stipulated and agreed by the said Surety, for value received, that this bond shall inure to the benefit of any and all of the persons named in Section 3181 of the California Civil Code so as to give a right of action to them or their assigns in any suit brought upon this bond.

It is hereby further expressly stipulated and agreed by the said Surety, for value received, that no change, extension of time, alteration or addition to the terms of the Contract or the specifications or drawings accompanying the same or to any other part of the contract documents, as defined therein, shall in any manner affect the obligations of the SURETY on this bond, and SURETY does hereby waive notice of any such change, extension, alteration, or addition.

IN WITNESS WHEREOF, the above-bound parties have executed this instrument under their several seals this _________________ day of ____________________, 2022, the name and corporate seals of each corporate party being hereto affixed, and these presents duly signed by their undersigned representatives, pursuant to authority of their governing bodies. (Corporate Seal) PRINCIPAL ______________________________ By ______________________________________
(Acknowledgment) Title _____________________________________ (Corporate Seal)
SURETY _________________________________
By ______________________________________
(Attorneys-in-fact)
(Acknowledgment) Title _____________________________________ (NOTE TO SURETY COMPANY: A certified copy of unrevoked resolution of authority for the attorney-in-fact must be submitted with and attached to the executed bond.)

PERFORMANCE BOND
(NOTE: Bidders must use this form, use of any other bond form may render a bid non-responsive)

KNOW ALL MEN BY THESE PRESENTS:

WHEREAS the City Council of the City of Cotati has awarded to __________________________________________________________ (designated as the “PRINCIPAL”) a contract for the MOSAIC WALL BENCHES

AT GRAVENSTEIN HIGHWAY PROJECT
, which contract and all of the contract documents as defined therein (designated as the “Contract”) are hereby made a part hereof; and
WHEREAS, said PRINCIPAL is required under the terms of the Contract to furnish a bond for the faithful performance of the Contract.

NOW, THEREFORE, WE, the PRINCIPAL and
____________________________________ ___________________ as surety (designated as “SURETY”), an admitted surety insurer authorized to do business in the State of California, are held and firmly bound unto the City (designated as “OBLIGEE”), in the penal sum of ___________________________________ ________________________________ dollars ($__________________), lawful money of the United States for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, and administrators, and successors, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH that, if the above bound PRINCIPAL, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract and any alteration thereof made as therein provided, on his or their part to be kept and performed at the time and in the manner therein specified and in all respects according to their true intent and meaning, and shall defend, indemnify and save harmless the OBLIGEE, it’s officials, officers, employees, volunteers and agents, as therein stipulated, then this obligation shall become null and void, otherwise it shall be and remain in full force and virtue.

And the said SURETY, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract or to the work to be performed thereunder or to the specifications or the plans accompanying the same or to any other part of the contract documents, as defined therein, shall in any way affect said SURETY’s obligation on this bond, and the SURETY does hereby waive notice of any such change, extension of time, alteration or addition.

And the said SURETY, for value received, hereby stipulates and agrees that upon termination of the Contract for cause, the OBLIGEE reserves the right to refuse tender of the PRINCIPAL by the SURETY to complete the Contract work.

IN WITNESS WHEREOF, the above-bound parties have executed this instrument under their several seals this _________________ day of _____________________, 2022, the name and corporate seals of each corporate party being hereto affixed, and these presents duly signed by their undersigned representatives, pursuant to authority of their governing bodies. (Corporate Seal) PRINCIPAL ______________________________ By ______________________________________
(Acknowledgment) Title _____________________________________ (Corporate Seal)
SURETY _________________________________
By ______________________________________
(Attorneys-in-fact)
(Acknowledgment) Title _____________________________________ (NOTE TO SURETY COMPANY: A certified copy of unrevoked resolution of authority for the attorney-in-fact must be submitted with and attached to the executed bond.)

MAINTENANCE BOND
(NOTE: Bidders must use this form, use of any other bond form may render a bid non-responsive)
KNOW ALL MEN BY THESE PRESENTS:

WHEREAS the City Council of the City of Cotati has awarded to _______________________________________________________ (designated as the “PRINCIPAL”) a contract for the MOSAIC WALL

BENCHES AT GRAVENSTEIN HIGHWAY PROJECT
, which contract and all of the contract documents as defined therein (designated as the “Contract”) are hereby made a part hereof; and
WHEREAS, the PRINCIPAL is required under the terms of the Contract to furnish a bond for the correction of any defects due to defective materials or workmanship in the work performed under the Contract.

NOW, THEREFORE, we the PRINCIPAL and the undersigned
________________________________________________, as surety (designated as “SURETY”), an admitted surety insurer authorized to do business in the State of California, are held and firmly bound unto the City of Cotati, (designated as the “OBLIGEE”), in the penal sum of _____________________ ___________________________ Dollars ($__________), lawful money of the United States , being a sum not less than ten percent (10%) of the final Contract price, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns jointly and severally, firmly by these presents.

THE CONDITIONS OF THIS OBLIGATION ARE SUCH that if, during a maintenance period of one (1) year from the date of acceptance by the OBLIGEE of the contracted work, the PRINCIPAL upon receiving written notice of a need for repairs which are directly attributable to defective materials or workmanship, shall diligently take the necessary steps to correct said defects within five (5) Days from the date of said notice, then this obligation shall be null and void; otherwise it shall remain in full force and effect.

If any action shall be brought by the OBLIGEE upon this bond, a reasonable attorney’s fee, to be fixed by the Court, shall be and become a part of OBLIGEE’s judgment in any such action.

No right of action shall accrue on this bond to, or for the use of, any person or corporation other than the OBLIGEE named herein or the heirs, executors, administrator or successor of the OBLIGEE.

IN WITNESS WHEREOF, the above-bound parties have executed this instrument under their several seals this _________________ day of _____________________, 2022, the name and corporate seals of each

corporate party being hereto affixed, and these presents duly signed by their undersigned representatives, pursuant to authority of their governing bodies. (Corporate Seal) PRINCIPAL ______________________________ By ______________________________________
(Acknowledgment) Title _____________________________________ (Corporate Seal)
SURETY _________________________________
By ______________________________________
(Attorneys-in-fact)
(Acknowledgment) Title _____________________________________ (NOTE TO SURETY COMPANY: A certified copy of unrevoked resolution of authority for the attorney-in-fact must be submitted with and attached to the executed bond.)

TECHNICAL SPECIFICATIONS
1 MOBILIZATION

1.1 DESCRIPTION:

Work under this section shall include mobilization; furnishing, maintaining and removing sanitary restroom facilities; preparing pre-construction video and photos; and arranging for temporary use areas outside of public rightof-way as construction staging areas.

Sanitary restroom facilities shall be provided and maintained, by the Contractor, on the project site. The Contractor proposed locations for restroom facilities shall be reviewed with the Engineer prior to delivery and placement of the restroom facility.

Just prior (ten calendar days maximum) to beginning work at the subject site, the contractor shall jointly with the Engineer photograph and videotape the project site in sufficient detail to show the existing site conditions, including but not limited to the proposed alignment, staging areas, routes of ingress and egress for hauling and delivering, and all other areas that the contractor believes are appropriate. Contractor shall provide copy of video(s) to the City engineer.

The Contractor shall arrange for and develop temporary construction staging areas for the storage and operation of construction equipment and supplies. The staging area shall be located outside of public right-of-way.

No staging of equipment or material will be permitted on any public rightof-way. The Contractor must obtain written permission from the property owners to use their property in any fashion and provide copy of permission to City engineer. All contractor, subcontractor, and supplier employees shall park at the temporary construction staging area only.

The Contractor shall submit a plan describing the construction staging areas to the Engineer for approval. The Contractor shall not permit any waste or damage to be done to the staging areas and shall maintain the areas in good condition, free of litter and debris. Upon completion of the work, the areas shall be restored to pre-construction or better condition, including the repair of any damaged pavement, curbs, markings, or other infrastructure components.

Mobilization shall include the obtaining of all permits, moving onto the site of all equipment, temporary buildings, if needed, and other construction facilities as required for the proper performance and completion of the work.

Mobilization shall include all staking & layout necessary to properly construct and install all improvements as described in these Technical Specifications and as shown on Project Plans.

1.2 ENVIRONMENTAL REQUIREMENTS:

The Contractor shall comply with all air pollution, water quality, and other environmental control rules, regulations, ordinances and statutes as apply to the project and the executing of the work performed pursuant to the Contract.

The Contractor shall implement construction site best management practices for the control of non-storm water and point discharges, and erosion and sediment control.

A Storm Water Pollution Control Program (WPCP) shall be required for the project.

The Contractor shall be required to implement temporary construction site best management practices (BMP's) in accordance with the Construction Site Best Management Practices (BMP's) Manual issued by the State of California, Department of Transportation. The temporary construction site best management practices required for this Contract shall include, but are not limited to:

A. Stockpile Management: Implement BMP's, as appropriate, for soil stabilization and sediment control as applicable to stockpile of various materials.

B. Mobile Operations: Implement BMP's, as appropriate, for the control of equipment fueling and maintenance, concrete
mixing and wash out, hauling and storage of materials. BMP's shall control the specific situations that mobile operations can create.

C. Wind Erosion Controls: Implement BMP's, as appropriate, for all disturbed soils on the project site that are subject to wind erosion when wind and dry conditions exist.

D. Tracking Controls: Implement BMP's, as appropriate, for the control of sediments and debris from the collection system.

E. Non-Storm Water and Waste Management and Materials Pollution Controls: Implement BMP's, as appropriate, to control the discharge of materials other than storm water to the storm water collection system.

The Contractor shall inspect BMPs regularly. Improperly installed, damaged or ineffective BMPs shall be corrected immediately.

1.3 DUST CONTROL:

Dust control shall conform to the provisions of the City of Cotati Specifications, Section 10, "Dust Control" of the Standard Specifications, and these requirements.

The Contractor shall maintain and operate construction equipment so as to minimize exhaust emissions of PM10 and other pollutants by means of the following:
a. Prohibition on idling motors of equipment that is not in use, and by trucks waiting in queues.
b. Implementation of specific maintenance programs (to reduce emissions) for equipment in frequent use during the
construction period.

1.4 MEASUREMENT AND PAYMENT:

The lump sum (LS) price paid for MOBILIZATION, including ENVIRONMENTAL REQUIREMENTS and DUST CONTROL shall be
considered as full compensation for mobilization as specified herein, including but not limited to notifications, project records and documents, obtaining all required permits, licenses, and paying all fees, developing construction schedule, moving on the site any equipment required for the operations, preparatory work, staking & layout, coordination and cooperation, project meeting, developing construction water supply, preconstruction video and photos, providing on-site sanitary facilities, developing a temporary construction staging area, subcontractor insurance and bonds, Contractor insurance and bonds, development, implementation and maintenance of a WPCP, demobilization and all other mobilization work, and no additional compensation shall be allowed therefor.
2 BENCHES AT MOSAIC WALLS

2.1 DESCRIPTION:

This work shall consist of furnishing and installation of three (3) benches at the locations indicated in the Project Plans.

Because the mosaic wall that benches are to attach to has been built, contractor will be required to provide shop drawings of proposed method of attachment to wall for City review & approval.

Additionally, contractor may provide alternative method of construction (ie boards to bracket) for City review & approval.

2.2 MATERIALS:

Benches shall be constructed of materials listed in Project Plans.

10.3 MEASUREMENT AND PAYMENT:

The contract unit price for Lump Sum (LS) for each of three locations, shall be considered full compensation for furnishing all materials, labor to fabricate and install benches as shown on the Project Plans.

PROJECT PLANS (4 SHEETS)

CONSTRUCTION AGREEMENT (MINOR)
[City use: this form is only for public works projects not subject to public bid requirements.]

MOSAIC WALL BENCHES AT GRAVENSTEIN HIGHWAY PROJECT
(Title of Project)
(Project Account Code No. _____________________)
THIS CONSTRUCTION AGREEMENT (“Agreement”) is entered into and effective as of the ____ day of _______________ in the year 2022, by and between the City of Cotati (“City” ) and _______________________________________ (“Contractor”) (collectively, “Parties”).

City and Contractor, in consideration of the mutual covenants hereinafter set forth, agree as follows:

ARTICLE 1. WORK
Contractor shall complete the work as described and/or depicted in Exhibit A (“Work”), attached hereto and incorporated by reference herein, upon the terms and conditions set forth herein.

ARTICLE 2. COMPLETION OF WORK
The Work shall be completed to the satisfaction of City within 20 working days of the construction start date.

ARTICLE 3. CONTRACT PRICE /PAYMENT
As full compensation in consideration of completion of the Work in accordance with the Contract Documents and in consideration of the fulfillment of all of the Contractor’s obligations under the Contract Documents, the City will pay the Contractor in lawful money of the United States the total price of $_________________ (the “Contract Price”) as specified in the Contractor’s completed Bid Schedule dated____________ , 2022, and attached to and incorporated in this agreement. Payment to the Contractor under this agreement will be for Work actually performed in accordance with the Contract Documents and will be made in accordance with the requirements of the Contract Documents and applicable law. The City will have no obligation to pay the Contractor any amount in excess of the Contract Price unless this agreement is first modified in accordance with its terms. The City’s obligation to pay the Contractor under this agreement is subject to and may be offset by charges that may apply to the Contractor under this agreement. Such charges include but are not limited to, charges for liquidated damages and/or substitute performance in accordance with the Contract Documents.

ARTICLE 4. INSURANCE
Contractor shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, Contractor’s agents, representatives and employees.

A. Minimum Scope of Insurance. Coverage shall be at least as broad as:

1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).

2. Insurance Services Office form number CA 0001 (ed. 12/90) covering automobile Liability, code 1 (any auto), or code 8, 9 if no owned auto.

3. Workers’ Compensation Insurance as required by the State of California and Employers’ Liability Insurance. If no employees are utilized, the Contractor shall sign a declaration as described in California Health and Safety Code Section 19825.

B. Minimum Limits of Insurance. Contractor shall maintain limits no less than:

1. General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

2. Automobile Liability: $2,000,000 per accident for bodily injury and property damage.

3. Employers Liability: $1,000,000 per accident for bodily injury or disease

4. Workers’ Compensation, Statutory Limits: $1,000,000 per accident for bodily injury or disease.

C. No Coverage Limitations or Restrictions. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the aforementioned specified minimum insurance coverage requirements and/or limits shall be available to the Additional Insureds (defined below). Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater.

D. Deductibles and Self-Insured Retentions (“SIR”). Any deductibles or SIR must be declared to and approved by the City and shall not reduce the limits of liability. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or SIR as respects the City, its officers, officials, employees and volunteers, or the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses. Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the City. City reserves the right to obtain a full certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of the right to so exercise later.

E. Other Insurance Provisions. The Commercial General Liability and Automobile Liability policies are to contain, or be endorsed to contain, the following provisions:

1. The City, its officers, officials, employees and volunteers (“Additional Insureds”) are to be covered as insureds as respects: liability arising out of work or operations as performed by or on behalf of the Contractor; or automobiles owned, leased, hired or borrowed by the Contractor.

2. The Additional Insured coverage under Contractor’s policy shall be “primary and non-contributory” and will not seek contribution from the City’s insurance or selfinsurance, and shall be at least as broad as CG 20 01 04 13.

3. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, unless thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City.

4. The Workers’ Compensation endorsement shall contain a Waiver of Subrogation against the City. The Contractor shall provide to the City an endorsement from the Workers’ Compensation insurer, if any, agreeing to waive all rights of subrogation against the City for injuries to employees of the Insured resulting from work for the City or use of the City’s premises or facilities.

5. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City (if agreed to in a written contract or agreement) before the City’s own insurance or self-insurance shall be called upon to protect City as a named insured.

F. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.

G. Verification of Coverage. Contractor shall furnish the City with original certificates and amendatory endorsements effective coverage required by this clause. The endorsements

should be on forms provided by the City or on other than the City’s forms provided those endorsements conform to the City’s requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time.

H. Subcontractors. Contractor agrees to include with all subcontractors in their subcontract the same requirements and provisions of this Agreement, including the indemnity and insurance requirements, to the extent they apply to the scope of a subcontractor’s work.

Subcontractors hired by Contractor agree to be bound to Contractor and City in the same manner and to the same extent as Contractor is bound to City under this Agreement.

Subcontractors shall further agree to include these same provisions with any subsubcontractor. A copy of these indemnity and insurance provisions will be furnished by Contractor to a subcontractor on request. Contractor shall require all subcontractors to provide a valid certificate of insurance and the required endorsements included in their agreement prior to commencement of any Work and Contractor shall provide proof of compliance to City.

ARTICLE 5. BONDS/CONTRACTOR’S GUARANTEE
A. A labor and materials (payment) bond is __X__ required / not required for this Agreement. If required for this Agreement, before beginning the Work, Contractor shall provide a labor and materials bond in the amount of one hundred percent (100%) of the Contract Price, and which conforms with the requirements of Civil Code section 3248, as may be amended from time to time.

B. A performance bond is __X__ required / _ not required for this Agreement. If required for this Agreement, before beginning the Work, Contractor shall provide a performance bond in the amount of one hundred percent (100%) of the Contract Price to guarantee faithful performance of the Work.

5. Contractor shall guarantee the Work to be free of defects in material and workmanship for a period of one (1) year following the City’s acceptance of the Work (“Contractor’s Guarantee”). As part of Contractor’s Guarantee, Contractor agrees to make, at Contractor’s own expense, any repairs or replacements made necessary by defects in material or workmanship which become evident within the one-year guarantee period.

The Contractor’s Guarantee is effective regardless of whether or not a maintenance bond is required by the City for this Agreement.

6. A maintenance bond is __X__ required / _ not required for this Agreement. If required for this Agreement, prior to acceptance of the Work, Contractor shall provide a maintenance bond in the amount of ten percent (10%) of the Contract Price as a security for the Contractor’s Guarantee. The maintenance bond shall remain in force for one (1) year following the City’s acceptance of the Work.

7. Any and all bonds required for this Agreement shall be in a form acceptable to the General Counsel. Any such bond must be issued by a corporate surety which is an admitted surety insurer in the State of California. Any bond signed by an agent must be accompanied by a certified copy of such agent’s authority to act. If the surety on any bond provided by Contractor is declared a bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the Work is located, Contractor shall, within seven (7) days thereafter, substitute another bond and surety in accordance with the requirements set forth herein.

ARTICLE 6. CONTRACT DOCUMENTS
The contract documents which comprise the entire agreement between City and Contractor consist of this Agreement and exhibits thereto and the following (“Contract Documents”):
 City-approved drawings and specifications for the Work; o Project Plans, applicable sheets from Downtown Specific Plan Area Revitalization 2015 [four (4) sheets, by Omni-Means and Firma Design Group].
o Technical Specifications
o Current City of Cotati Standard Plans and Construction Specifications and current Caltrans Standard Specifications and Plans
 Any written amendment or change order approved by the City after the effective date of this Agreement;
 Payment Bond, Performance Bond and Maintenance Bond pursuant to Article 5 of this Agreement;
 Certificate of Insurance and Endorsement;
 W-9;
 Business License
The Contract Documents may only be amended by prior written authorization of the City Engineer, or his/her designee.

ARTICLE 7. LIQUIDATED DAMAGES
A. City and Contractor recognize that time is of the essence of this Agreement and that the City will suffer financial loss if the Work is not completed within the time specified in Article 2 herein, plus any extensions previously authorized in writing by the Executive Director or his/her designee. It is and will be difficult and/or impossible to ascertain and determine the actual damage which City will sustain in the event of and by reason of Contractor’s failure to fully perform the Work or to fully perform all of its contract obligations that have accrued by the time for completion as specified in Article 2 herein and/or as specified for completion of any scheduled operations or works described in the Contract Documents. It is agreed in accordance with California Government Code Section 53069.85, as may be amended from time to time, that Contractor will forfeit and pay to

City liquidated damages in the sum of $250 per day for each and every calendar day that expires after the time for completion specified in Article 2 herein and/or as specified for completion of any scheduled operations or works described in the Contract Documents except as otherwise provided by extension of time previously authorized in writing by the Executive Director or his/her designee. It is further understood and agreed in accordance with California Government Code Section 53069.85 that the liquidated damages sum specified in this provision is not manifestly unreasonable under the circumstances existing at the time this contract was made, and that City may deduct liquidated damages sums in accordance with this provision from any payments due or that may become due to Contractor.

B. Liquidated damages will continue to accrue at the stated rate until final completion of the Work. Accrued liquidated damages may be deducted by City from amounts due or that become due to Contractor for performance of the Work. Liquidated damages may not be waived or reduced by City unless expressly waived or reduced in writing by the Executive Director or his/her designee.

ARTICLE 8. PREVAILING WAGES
A. Pursuant to California Labor Code Section 1771, Contractor and any subcontractor shall pay all workers employed in execution of the Work in accordance with the general rate of per diem wages specified for each craft, classification, or type of worker needed to execute the Work. Copies of the prevailing rates of per diem wages are on file at the Recording Secretary’s office, and shall be made available to any interested party on request.

B. Contractor is required to pay all applicable penalties and back wages in the event of violation of prevailing wage law, and Contractor and any subcontractor shall fully comply with California Labor Code Section 1775, which is incorporated by this reference as though fully set forth herein.

C. Contractor and any subcontractor shall maintain and make available for inspection payroll records as required by California Labor Code Section 1776, which is incorporated by this reference as though fully set forth herein. Contractor is responsible for ensuring compliance with this section.

D. Contractor and any subcontractor shall fully comply with California Labor Code Section 1777.5, concerning apprentices, which is incorporated by this reference as though fully set forth herein. Contractor is responsible for ensuring compliance with this section.

E. In accordance with California Labor Code Section 1810, eight (8) hours of labor in performance of the Work shall constitute a legal day’s work under this Agreement.

Contractor and any subcontractor shall pay workers overtime pay as required by California Labor Code Section 1815. Contractor and any subcontractor shall, as a penalty to the City, forfeit twenty-five dollars ($25) for each worker employed in the execution of the contract by the respective contractor or subcontractor for each calendar day during which the worker

is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation so the provisions of Article 3 of Chapter 1 of Part 7, Division 2 of the California Labor Code, which is incorporated by this reference as though fully set forth herein.

ARTICLE 9. INDEMNIFICATION
To the fullest extent allowed by law, Contractor shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and volunteers (collectively, “Indemnitees”) from and against any and all liability, loss, damage, claims, suits, actions, arbitrations proceedings, administrative proceedings, regulatory proceedings, civil penalties and fines, expenses and costs (including, without limitation, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature, whether actual, alleged or threatened, arising out of or in connection with Contractor’s performance of the Services or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the sole negligence or willful misconduct of City.

The Contractor’s obligation to defend and indemnify shall not be excused because of the Contractor’s inability to evaluate Liability or because the Contractor evaluates Liability and determines that the Contractor is not liable to the claimant. The Contractor must respond within thirty (30) days to the tender of any claim for defense and indemnity by the City, unless this time has been extended by the City. If the Contractor fails to accept or reject a tender of defense and indemnity within thirty (30) days, in addition to any other remedy authorized by law, so much of the money due the Contractor under and by virtue of this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made of the claim or suit for damages, or until the Contractor accepts or rejects the tender of defense, whichever occurs first.

With respect to third party claims against the Contractor, , the Contractor waives any and all rights of any type to express or implied indemnity against the Indemnitees.

Notwithstanding the forgoing, to the extent this Agreement is a "construction contract" as defined by California Civil Code Section 2783, as may be amended from time to time, such duties of Contractor to indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.

Notwithstanding the foregoing, to the extent that this Agreement includes design professional services under Civil Code Section 2782.8, as may be amended from time to time, such duties of Contractor to indemnify shall only be to the full extent permitted by Civil Code Section 2782.8.

If any term of portion of this section is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, said section shall be interpreted to allow the broadest indemnity permitted by law.

The obligation to defend and indemnify set forth here is binding on the successors, assigns or heirs of Contractor and shall survive the termination or completion of this Agreement or this section or final payment to the fullest extent and duration allowed by law.

The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement.

ARTICLE 10. DISCLAIMER CONCERNING LABOR CODE SECTION 6400 Contractor understands and agrees that with respect to performance of the Work, and notwithstanding any provision in this Agreement to the contrary, Contractor, and/or its privities, including, without limitation, subcontractors, suppliers and other engaged by Contractor in the performance of the Work shall be “employers” for purposes of California Labor Code Section 6400 and related provisions of law, and that neither City nor its officials, officers, employees, agents, volunteers or consultants shall be “employers” pursuant to California Labor Code Section 6400.

ARTICLE 11. TERMINATION
Notwithstanding any other provision set forth herein, City may terminate or suspend this Agreement immediately for cause. Cause for immediate termination or suspension shall include, but not be limited to, any breach of this Agreement by Contractor, including, without limitation, a breach of any of Contractor’s covenants, representations or guarantees provided herein. Upon receipt of notice of termination or suspension, Contractor shall immediately stop all work in progress under this Agreement. Without limiting the generality of the foregoing, City may terminate this Agreement if Contractor fails to perform the Work within the time specified in Article 2, or any written extension thereof. If City terminates this Agreement for cause, City may undertake to have the Work completed by its own workforce or by substitution of contractor, and Contractor shall be liable to City for any excess cost incurred by City as a result. In the event of such termination, Contractor shall be entitled to payment for all Work performed to date of termination to the extent such services were actually performed in accordance with this Agreement. Upon termination, any and all of City’s documents or materials provided to Contractor and any and all of Contractor’s documents and materials prepared for or relating to this Agreement shall be delivered to the City as soon as possible, but not later than ten (10) days after the cessation of the Work.

ARTICLE 12. CONTRACTOR CLAIMS
Contractor Claims shall comply with Exhibit B, Dispute Resolution Document.

ARTICLE 13. INDEPENDENT CONTRACTOR
It is understood and agreed that in the performance of this Agreement, Contractor (including its employees and agents) is acting in the capacity of an independent contractor, and not as an agent

or employee of the City. Contractor has full control over the means and methods of performing said services and is solely responsible for its acts and omissions, including the acts and omissions of its employees and agents.

ARTICLE 14. LICENSES/PERMITS
Contractor represents that Contractor has all licenses, permits, or qualifications of whatsoever in nature, which are legally required for Contractor to perform the Work. Contractor shall, at Contractor’s sole cost and expense, keep in effect at all times during the term of this Agreement, any such licenses, permits or qualifications. Contractor is required to possess a current Class B license.

ARTICLE 15. INSPECTION
All Work done and materials furnished, if any, shall be subject to inspection and approval by the City.

ARTICLE 16. SUBCONTRACTORS
Contractor must obtain the City’s prior written consent for subcontracting any Work pursuant to this Agreement, including safety orders under Title 8 of California Code of Regulations. Any such subcontractor shall comply, to the extent applicable, with the terms and conditions of this Agreement. Any agreement between Contractor and a subcontractor pursuant to this Agreement shall provide that the subcontractor procure and maintain insurance coverage as required herein and which shall name City as an additional insured.

ARTICLE 17. COMPLIANCE WITH LAWS/NON-DISCRIMINATION
Contractor shall comply with all applicable local, state and federal laws, regulations and ordinances in the performance of this Agreement. Contractor shall not discriminate in the provision of service or in the employment of persons engaged in the performance of this Agreement on account of race, color, national origin, ancestry, religion, gender, marital status, sexual orientation, age, physical or mental disability in violation of any applicable local, state or federal laws or regulations.

ARTICLE 18. NOTICES
All notices required or permitted by this Agreement, including notice of change of address, shall be in writing and given by personal delivery or sent postage prepaid and addressed to the parties intended to be notified, as set forth herein. Notice shall be deemed given as of the date of delivery in person or as of the date deposited in any post office or post office box regularly maintained by the United States Postal Service, unless otherwise stated herein. Notice shall be given as follows:

City: Attn: Craig A. Scott
City of Cotati
201 West Sierra Avenue
Cotati, California 94931-4217
Telephone: (707) 792-4600
Contractor: Name: _____________________________________________ Address: ___________________________________________
Telephone: __________________________________________
ARTICLE 19. GOVERNING LAW/VENUE
This Agreement shall be construed and its performance enforced under California law. Venue shall be in the Superior Court of the State of California in the County of Sonoma.

ARTICLE 20. NON-WAIVER
The City’s failure to enforce any provision of this Agreement or the waiver of any provision in a particular instance shall not be construed as a general waiver of any part of such provision. The provision shall remain in full force and effect.

ARTICLE 21. THIRD PARTY BENEFICIARIES
The Parties do not intend, by any provision of this Agreement, to create in any third party any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party.

ARTICLE 22. ASSIGNMENT
No assignment in transfer in whole or in party of this Agreement shall be made without the prior written consent of City.

ARTICLE 23. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise enforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.

ARTICLE 24. HEADINGS
The headings of the sections and exhibits of this Agreement are inserted for convenience only.

They do not constitute part of this Agreement and are not to be used in its construction.

IN WITNESS WHEREOF, City and Contractor have caused this Agreement to be executed the day and year first above written.

FOR CITY OF COTATI FOR CONTRACTOR
By
Damien O’Bid Name:

City Manager Title:

Taxpayer I.D. No.: _______________
Recommended for Approval: Recommended for Approval:

Angela Courter Craig A. Scott
Director of Administrative Services Director of Public Works/City Engineer APPROVED AS TO FORM:
__________________________________
John Bakker
City Attorney

EXHIBIT B
DOCUMENT 00 73 83

DISPUTE RESOLUTION
ARTICLE 1 ― APPLICABLE STATUTES

1.01 Reference Public Contract Code section 9204(b) setting forth procedures for that apply to all claims by contractors in connection with public works. Reference Public Contract Code section 9204(f)(2) providing that a public entity may prescribe additional reasonable and equitable terms regarding actions or procedures to be taken by the parties.

1.02 Reference California Government Code Section 930.2 which provides: “The governing body of a local public entity may include in any written agreement to which the entity, its governing body, or any board or employee thereof in an official capacity is a party, provisions governing the presentation, by or on behalf of any party thereto, of any or all claims arising out of or related to the agreement and the consideration and payment of such claims.” ARTICLE 2 ― INTERPRETATION AND EFFECT

2.01 The procedures provided in this Document 00 73 83 are mandatory. Contractor must comply with these procedures prior to filing a Government Code Claim with the City in form prescribed by Government Code section 910. A failure or refusal by Contractor pursue diligently and exhaust, as to any Disputed Work or Claim, the required administrative procedures set forth in this Document 00 73 83, shall operate as a waiver of the Disputed Work and Claim and a bar to further judicial process.

2.02 This Document 00 73 83 shall not be interpreted to supersede or limit procedures within the Contract Documents for administration of the Work, including but not limited to, procedures regarding changes to the Contract Documents, changes from conditions indicated in the Contract Documents, changes in the Contract Times, Liquidated Damages, differing site conditions and utility conflicts, testing and inspections, quality control completion and close out of the Contract. Contractor must complete all such contract procedures.

2.03 Notwithstanding the pendency of contract administration procedures or disputes procedures set forth herein, Contractor at all times shall prosecute the Work in accordance with the Contract Documents, and for disputed Work, in accordance with the Contract Documents as determined and directed by Owner.

2.04 It is the intention of this Document 00 73 83 that disputes, protests, claims and disagreements however denominated, between the parties arising under and by virtue of the Contract, be brought to the attention of Owner at the earliest possible time in order that the matters may be resolved by negotiation, if possible, or other appropriate action promptly taken.

ARTICLE 3 ― DEFINITIONS

3.01 For purposes of this Document 00 73 83, the following Definitions shall apply:
.A “Disputed Work” - Work that Contractor contends is outside the scope of the Contract Documents or in violation of the terms of the Contract Documents, resulting from any decision, determination, order, direction, instruction, notice, action, or omission of Owner being otherwise incorrect or improper. Disputed Work includes any claims or potential claims regarding loss of

productivity, delays, impacts, arising or occurring during the Work, that Contractor may assert resulted from acts or omissions of Owner that were outside the requirements of the Contract Documents.
.B “Good Faith Negotiations” means the successive, tiered negotiations of Disputed Work, each with increasing levels of documentation and substantiation, starting at the Project level and escalating to the Authorized Representative level, then the Executive level, prior to Contractor filing a Final Claim.
.C “Claim” or “statutory claim” is defined in Public Contract Code section 9104, and means “a separate demand by the contractor sent by registered mail or certified mail with return receipt requested, for one or more of the following:
.1 A time extension, including, without limitation, for relief from damages or penalties for delay assessed by a public entity under a public works contract. .2 Payment by the public entity of money or damages arising from work done by, or on behalf of, the contractor pursuant to the contract for a public work and payment for which is not otherwise expressly provided or to which the claimant is not otherwise entitled. .3 Payment of an amount that is disputed by the public entity.” .D Final Claim means the certified Final Claim prepared and submitted by Contractor if Good Faith Negotiations fail to result in settlement of the claim.

ARTICLE 4 ― REQUIREMENTS OF GOOD FAITH NEGOTIATIONS

4.01 Introduction
.A At any time during the Good Faith Negotiations defined in this Article 4, Contractor may serve a statutory claim pursuant to Public Contract Code section 9204. Upon receipt of a claim pursuant to that section, the Owner will conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall provide Contractor a written statement identifying what portion of the claim is disputed and what portion is undisputed. Upon receipt of a claim, Owner and Contractor may, by mutual agreement, extend the time period provided in this subdivision. Contractor shall furnish reasonable documentation to support the claim. .B Notwithstanding the service of a statutory claim, Contractor must comply with the Good Faith Negotiations procedures defined in this Article 4. Failure to so comply shall operate as a waiver of Contractor’s claims.

4.02 Notification of Disputed Work Required.
.A Contractor shall promptly, and before commencing Disputed Work, notify Owner’s Authorized Representative in writing before proceeding with such Work. Contractor’s written notification shall state the objection and the basis of the objection (“Disputed Work”). .B If Contractor proceeds with the Disputed Work without complying with the written notice requirement, Contractor will be deemed to have assented that the Work is within the Contract’s requirements, and shall waive its rights to further right to a protest or Claim. .C Contractor shall provide written notice of Disputed Work concurrently with Contractor’s incurring any costs it may claim are the responsibility of Owner.

4.03 Contemporaneous Records
.A Beginning with the first day on which any Disputed Work is performed, and each following Day, Contractor shall maintain detailed hourly records of labor, construction equipment, and services, and itemized records of materials and equipment used each Day in the performance of the Disputed Work. Such records must be of a form acceptable to Owner,

shall be signed by Contractor, copies provided to Owner daily, and are subject to verification by Owner.

4.04 Initial Substantiation (within ten (10) Days after Contractor’s first knowledge of the Disputed Work.)
.A Within ten (10) Days after Contractor’s first knowledge of the Disputed Work, Contractor shall provide Owner with a written statement of dispute (“Dispute”) that includes a preliminary cost proposal for the Disputed Work stating clearly and in detail its objection and reasons for contending the Disputed Work is outside or in breach of the requirements of Contract Documents. The preliminary cost proposal must provide a good faith preliminary estimate of the labor (workers, crews), equipment and/or materials involved, and a corresponding good faith preliminary estimate of cost. It is the responsibility of Contractor to substantiate that the Disputed Work is in fact a change from the base scope of Work. .B The written Dispute must identify the subcontractors, vendors, suppliers affected, if any, sufficient for Owner to visit the Site to inspect the work and/or conduct a telephonic interview of the persons involved, and/or to photograph the work in question. Contractor shall provide by email digital photographs of the Disputed Work and provide Owner with contact information for all involved subcontractors and/or suppliers of any tier to facilitate prompt “in person” review at the next job site meeting.

4.05 First Negotiation: At Project Level. (No later than twenty-one (21) Days after Contractor’s first knowledge of the Dispute).
.A The written notice and preliminary cost proposal for Disputed Work must be placed, by Contractor, as either a specific discussion item on the Agenda for the next weekly meeting, or to occur immediately before or following the weekly meeting. Both Owner and Contractor shall then make a good-faith effort to review the Disputed Work. It is expected that discussions will occur no later than twenty-one (21) Days after Contractor’s first knowledge of the Dispute.

4.06 Updated Dispute Substantiation (no later than thirty (30) days of Contractor’s first knowledge of Disputed Work).
.A In the event negotiations at the next job site meeting do not result in resolution of the Dispute, and in any event no later than thirty (30) days of Contractor’s first knowledge of Disputed Work, Contractor must update its Dispute (“Updated Dispute”) to meet the following requirements.
.B Contractor shall submit the Updated Dispute documentation in the following format:
.1 Introduction and Issue Identification
.2 Background
.3 Chronology
.4 Contractor's Position (Reason for City’s potential liability) .5 Supporting documentation of merit
.6 Supporting documentation of damages
.7 Schedules (if appropriate)
.8 Productivity exhibits (if appropriate)
.C Contractor shall explain, cite by reference to Contract Documents and documents from the Project record and/or submit photocopies of documents supporting the merit of its position. .D Contractor shall explain, cite by reference to, and/or submit photocopies of documents supporting damages. Contractor must submit substantial supporting documentation with this Updated Dispute documentation; categories and amounts not identified and justified, will be

deemed waived. Contractor may not assert, subsequently, new or different categories or amounts of damages.

4.07 Second Negotiation: At Project Representative Level. (No later than forty-five (45) Days after Contractor’s first knowledge of the Dispute).
.A If Owner and Contractor do not resolve the Disputed Work at their first meeting, then Contractor shall submit its Updated Dispute and shall calendar the matter for discussion with Contractor’s Representative and Owner’s Representative to occur within twenty (20) Days of the weekly meeting and no later than forty-five (45) Days after Contractor’s first knowledge of the Dispute.
.B Owner’s Representative will consider the information provided by Contractor and from Owner’s resources, and will provide a decision in writing. If Contractor disputes the written decision, then Contractor’s remedy is to file a Notice of Potential Claim meeting the requirements below.
.C If for any reason Owner should fail to act or provide a decision on a Dispute or Updated Dispute, all within the required forty-five (45) Days, then the Dispute and Updated Dispute shall be deemed denied by Owner’s Representative on the forty-sixth (46th) Day.

4.08 Notice of Potential Claim (no later than fifty-five (55) Days after Contractor’s first knowledge of the Dispute).
.A If, after receiving Owner’s Representative’s decision, Contractor disagrees with it or still considers the Disputed Work required of it to be outside the requirements of the Contract Documents, then Contractor shall so notify Owner in writing within ten (10) Days after receiving the decision by submitting a Notice of Potential Claim (“NOPC”) stating that it will issue a formal claim.

4.09 Third Negotiation: Meeting of Executives.
.A Upon receipt of Contractor’s NOPC, Contractor and Owner shall negotiate the claim between and among the Contractor’s Representative and Owner’s Representative. Negotiations in response to the NOPC will not extend the time to file the Formal Claim.

4.10 FINAL CLAIM AND CERTIFICATION (Within seventy-five (75) Days of Contractor’s first knowledge of a Dispute, or within thirty (30) Days of Owner’s written decision on Contractor’s Dispute and Updated Dispute.)
.A Within seventy-five (75) Days of Contractor’s first knowledge of a Dispute, or within thirty (30) Days of Owner’s written decision on Contractor’s Dispute and Updated Dispute, Contractor shall file with Owner its formal claim(s), in the form specified in this Document 00 72 83. For each NOPC Contractor intends to pursue as a formal claim, Contractor shall include all arguments, justification, cost or estimates, schedule analysis, and detailed documentation supporting Contractor’s position.

Contractor is encouraged to designate its Final Claim and Certification as its statutory claim. .B Claim Documentation. Contractor’s Claim documentation shall conform to generally accepted auditing standards (GAAS). Contractor shall submit the Claim in the following format:
.1 Introduction
.2 General Background Discussion
.3 Summary of Issues and Damages
.4 Index of Issues
.5 For Each Issue (Begin each issue on a new page)

.a Background
.b Chronology
.c Contractor's Position (Reason for City’s potential liability) .d Supporting Documentation of Merit
.e Supporting Documentation of Damages
.f Schedules (if appropriate)
.g Productivity exhibits (if appropriate)
.C Contractor shall explain, cite by reference to, and/or submit photocopies of, documents supporting the merit of its position. Supporting documentation may include, but not be limited to, General Conditions, General Requirements, Technical Specifications, Drawings, correspondence, conference notes, Shop Drawings and other Submittals, Submittal Logs, survey books, inspection reports, delivery schedules, test reports, daily reports, subcontracts, fragmentary Critical Path method schedules, photographs, technical reports, Requests for Information, field instructions, and other related records necessary to support the merit of Contractor's position.
.D Contractor shall explain, cite by reference to, and/or submit photocopies of, documents supporting damages. Supporting documentation may include, but not be limited to, any or all documents related to the preparation and submission of the Bid; Subcontractor, Supplier or vendor files and cost records; certified payroll reports, materials, equipment, and construction equipment and services costs; purchase orders; invoices; project as-planned and as-built costs; Subcontractor and Supplier payment documentation; quantity reports; other related records; general ledger and any other accounting materials necessary to support the Contractor's position.

4.11 CLAIMS SHALL BE CALCULATED IN THE SAME MANNER AS CHANGE ORDERS PER SECTION 01 26 00 (CONTRACT MODIFICATION PROCEDURES). NO SPECIAL,

INCIDENTAL OR CONSEQUENTIAL DAMAGES MAY BE CLAIMED, REQUESTED OR RECOVERED.

ARTICLE 5 ― SUBCONTRACTOR CLAIMS.

5.01 Contractor shall require each Subcontractor, sub-Subcontractor and supplier to comply with the claims procedure set forth in this Document 00 73 83 to provide Contractor with timely notice and documentation of all claims. Contractor shall present as its claims, all Subcontractor, subSubcontractor and supplier claims of any type, and prove them under the terms of the Contract Documents. Owner shall not be directly liable to any Subcontractor, any supplier, or any other person or organization, or to any surety for or employee or agent of any of them, for damages or extra costs of any type arising out of or resulting from the Project.

ARTICLE 6 ― WRITTEN DECISION AND ACTION ON CLAIMS

6.01 Time frames and procedures Decisions on statutory claims and formal claims follow the same procedures stated In Public Contract Code Section 9104:
.A “Upon receipt of a claim pursuant to this section, the public entity to which the claim applies shall conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall provide the claimant a written statement identifying what portion of the claim is disputed and what portion is undisputed. Upon receipt of a claim, a public entity and a contractor may, by mutual agreement, extend the time period provided in this subdivision. .B If the public entity needs approval from its governing body to provide the claimant a written statement identifying the disputed portion and the undisputed portion of the claim, and the governing body does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a claim sent by registered mail or certified mail, return receipt requested, the public entity shall have up to three days following the next duly publicly noticed

meeting of the governing body after the 45-day period, or extension, expires to provide the claimant a written statement identifying the disputed portion and the undisputed portion. .C If the claimant disputes the public entity’s written response, or if the public entity fails to respond to a claim issued pursuant to this section within the time prescribed, the claimant may demand in writing an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand in writing sent by registered mail or certified mail, return receipt requested, the public entity shall schedule a meet and confer conference within 30 days for settlement of the dispute.
.D Within 10 business days following the conclusion of the meet and confer conference, if the claim or any portion of the claim remains in dispute, the public entity shall provide the claimant a written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement.

Any disputed portion of the claim, as identified by the contractor in writing, shall be submitted to nonbinding mediation, with the public entity and the claimant sharing the associated costs equally. The public entity and claimant shall mutually agree to a mediator within 10 business days after the disputed portion of the claim has been identified in writing. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator. If mediation is unsuccessful, the parts of the claim remaining in dispute shall be subject to applicable procedures outside this section. .E For purposes of this section, mediation includes any nonbinding process, such as neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this section. .F Unless otherwise agreed to by the public entity and the contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced.
.G Failure by the public entity to respond to a claim from a contractor within the time periods described in this subdivision or to otherwise meet the time requirements of this section shall result in the claim being deemed rejected in its entirety. A claim that is denied by reason of the public entity’s failure to have responded to a claim, or its failure to otherwise meet the time requirements of this section, shall not constitute an adverse finding with regard to the merits of the claim or the responsibility or qualifications of the claimant. .H Amounts not paid in a timely manner as required by the negotiations required under Public Contract Code section 9204 shall bear interest at 7 percent per annum.” ARTICLE 7 ― CLAIM UPDATES AND WAIVER

7.01 Claim Updates Required. If Disputed Work persists longer than a single calendar month, then for each quarter until the Disputed Work ceases, Contractor shall submit to Owner a document titled “Claim Update” that shall update and quantify all elements of the Claim as completely as possible. Contractor’s failure to submit a Claim Update or to quantify costs every quarter shall result in waiver of the Claim for that period. Claims or Claim Updates stating that damages, total damages (direct and indirect), schedule impact and/or any time extension will be determined at a later date shall not comply with this subparagraph and shall result in Contractor waiving its claim(s). Contractor shall also maintain a continuing “claims log” that shall list all outstanding claims and their value, and provide such log to Owner quarterly.

7.02 Waiver. If the initially required notice of Dispute, Updated Dispute, Notice of Potential Claim

and Final Claim, are not issued within the time period required herein, or if Contractor proceeds with the disputed Work without first having given the notice of the Disputed Work, Contractor shall be deemed to have waived its rights to further claim on the specific issue.

ARTICLE 8 ― GOVERNMENT CODE SECTION 930.2

8.01 The procedures, negotiations, record keeping, documentation and Final Claim, if negotiation efforts prove unsuccessful, as required in this Document 00 73 83, are intended to constitute a mandatory administrative remedy and part One of a two-step claim procedure by agreement under California Government Code Section 930.2. Step One is compliance with the Good Faith Negotiations and Claim Requirements. Step Two is filing a Government Code Section 910 Claim in with the City following statutory procedures and identifying Claims submitted, negotiated and not settled.

8.02 Should Contractor fail to timely comply with the procedures set forth in this Document 00 73 83, Contractor may have rights to apply for consideration of late claims following the procedures in Government Code Section 930.4 This Document 00 73 83 defines the limits of authority of Owner’s representative to consider late claims and the basis therefore.

ARTICLE 9 ― WAIVER AND SUBSTANTIAL COMPLIANCE

9.01 If Contractor fails to comply with this Document 07 73 83 as to any claim or Disputed Work, then Contractor shall waive its rights to such claim. All claim(s), Disputed Work items or issue(s) not raised in a timely notice, timely notice of potential claim and then timely claim submitted under this Document 00 73 83, may not be asserted in any subsequent arbitration (if subsequently agreed), litigation or legal action, and any award (or portion thereof), judgment or verdict contrary to this preclusion shall be vacated to the extent contrary.

9.02 Contractor may request an extension of time to comply with the claims procedure herein, but must do so in advance of time periods expiring and Owner must give its approval in writing (which approval may be withheld in Owner’s discretion.) As to any other feature of the claim procedure herein (and its claims waiver feature), it may not be waived or altered absent a written Change Order signed by both parties and accepted as to form by their legal counsel (for the Owner, the City of Cotati.)

9.03 Owner in its sole discretion, may consider Contractor’s substantial compliance with the required initial notice and written Dispute, provided Contractor demonstrates good faith and a manifest lack of prejudice to Owner from late written notice, for example, contemporaneous Owner/Contractor discussions and review of Disputed Work with full opportunity to investigate and verify costs and work performed. Under no circumstances may substantial compliance by considered when the required written notice is more than twenty-one (21) calendar days late.

9.04 Owner shall not be deemed to waive or alter any provision under this Document 00 73 83, if at Owner’s sole discretion, a claim is administered in a manner not in accord with this Document 00 73 83.

9.05 Compliance with the foregoing shall not be a prerequisite to any Claim that is based solely on differences in measurement or errors of computations as to Contract quantities.

ARTICLE 10 ― CLAIMS UNDER $375,000

10.01 The provision of Public Contract Code §20104 set seq. relating to the resolution of construction claims of three hundred seventy-five thousand dollars ($375,000) or less which arise between a contractor and a local agency are hereby incorporated in this Contract and are

italicized for ease of use.

10.02 Documentation that is necessary to substantiate Claims submitted pursuant to this section must comply with the format requirements set forth in this Document 00 73 83. .A Claims for $375,000 or below, as provided by Public Contract Code - §20104 (a)-(d), Application of article; provisions included in plans and specifications:
(a)(1) This article applies to all public works claims of three hundred seventy-five thousand dollars ($375,000) or less which arise between a contractor and local agency. (2) This article shall not apply to any claims resulting from a contract between a contractor and a public agency when the public agency has elected to resolve any disputes pursuant to Article 7.1 (commencing with §10240) of Chapter 1 of Part 2. (b)(1) "Public work" means "public work contract" as defined in Section 1101 but does not include any work or improvement contracted for by the state or the Regents of the University of California.
(2) “Claim” means a separate demand by the contractor for (A) a time extension, (B) payment of money or damages arising from work done by, or on behalf of, the contractor pursuant to the contract for a public work and payment of which is not otherwise expressly provided for or the claimant is not otherwise entitled to, or (C) an amount the payment of which is disputed by the local agency.
(c) The provisions of this article or a summary thereof shall be set forth in the plans or specifications for any work which may give rise to a claim under this article. (d) This article applies only to contracts entered into on or after January 1, 1991. .B Claims for $375,000 or below, as provided by Public Contract Code - §20104.2 (a)-(f), Claims, requirements, tort claims excluded:

For any claim subject to this article, the following requirements apply:
(a) The claim shall be in writing and include the documents necessary to substantiate the claim. Claims must be filed on or before the date of Final Payment. Nothing in this subdivision is intended to extend the time limit or supersede notice requirements otherwise provided by contract for the filing of claims. (b)(1) For claims of less than fifty thousand dollars ($50,000), the local agency shall respond in writing to any written claim within 45 days of receipt of the claim, or may request, in writing, within 30 days of receipt of the claim, any additional documentation supporting the claim or relating to defenses to the claim the local agency may have against the claimant.
(2) If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of the local agency and the claimant. (3) The local agency's written response to the claim, as further documented, shall be submitted to the claimant within 15 days after receipt of the further documentation or within a period of time no greater than that taken by the claimant in producing the additional information, whichever is greater.
(c)(1) For claims of over fifty thousand dollars ($50,000) and less than or equal to three hundred seventy-five thousand dollars ($375,000), the local agency shall respond in writing to all written claims within 60 days of receipt of the claim, or may request, in writing, within 30 days of receipt of the claim, any additional documentation supporting the claim or relating to defenses to the claim the local agency may have against the claimant.

(2) If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of the local agency and the claimant. (3) The local agency’s written response to the claim, as further documented, shall be submitted to the claimant within 30 days after receipt of the further documentation, or within a period of time no greater than that taken by the claimant in producing the additional information or requested documentation, whichever is greater. (d) If the claimant disputes the local agency's written response, or the local agency fails to respond within the time prescribed, the claimant may so notify the local agency, in writing, either within 15 days of receipt of the local agency's response or within 15 days of the local agency's failure to respond within the time prescribed, respectively, and demand an informal conference to meet and confer for settlement of the issue in dispute. Upon a demand, the local agency shall schedule a meet and confer conference within 30 days for settlement of the dispute.
(e) Following the meet and confer conference, if the claim or any portion remains in dispute, the claimant may file a claim as provided in Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code. For purposes of those provisions, the running of the period of time within which a claim must be filed shall be tolled from the time the claimant submits his or her written claim pursuant to subdivision (a) until the time that claim is denied as a result of the meet and confer process, including any period of time utilized by the meet and confer process.
(f) This article does not apply to tort claims and nothing in this article is intended nor shall be construed to change the time periods for filing tort claims or actions specified by Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code. .C Claims for $375,000 or below, as provided by Public Contract Code - § 20140.4(a)-(c), pertaining to Civil action procedures; mediation and arbitration; trial de novo; witnesses:

The following procedures are established for all civil actions filed to resolve claims subject to this article:
(a) Within 60 days, but no earlier than 30 days, following the filing or responsive pleadings, the court shall submit the matter to nonbinding mediation unless waived by mutual stipulation of both parties. The mediation process shall provide for the selection within 15 days by both parties of a disinterested third person as mediator, shall be commenced within 30 days of the submittal, and shall be concluded within 15 days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court or by stipulation of both parties. If the parties fail to select a mediator within the 15-Day period, any party may petition the court to appoint the mediator.
(b)(1) If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1141.11 of that code. The Civil Discovery Act (Title 4 commencing with Section 2016.010 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration.
(2) Notwithstanding any other provision of law, upon stipulation of the parties, arbitrators appointed for purposes of this article shall be experienced in construction law, and, upon stipulation of the parties, mediators and arbitrators shall be paid necessary and reasonable hourly rates of pay not to exceed their customary rate, and such fees and expenses shall be paid equally by the parties, except in the case of arbitration where the

arbitrator, for good cause, determines a different division. In no event shall these fees or expenses be paid by state or city funds.
(3) In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, any party who after receiving an arbitration award requests a trial de novo but does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, pay the attorney's fees of the other party arising out of the trial de novo.
(c) The court may, upon request by any party, order any witnesses to participate in the mediation or arbitration process.
.D Claims for $375,000 or below, as provided by Public Contract Code - §20140.6 (a)-(b), Payment on undisputed portion of claim; interest on arbitration awards or judgments:
(a) No local agency shall fail to pay money as to any portion of a claim which is undisputed except as otherwise provided in the contract.
(b) In any suit filed under Section 20104.4, the local agency shall pay interest at the legal rate on any arbitration award or judgment. The interest shall begin to accrue on the date the suit is filed in a court of law.

END OF DOCUMENT 00 73 83

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