Cupertino City Council
January 17, 2023

Tuesday, March 7, 2023 6:45 PM
Tuesday, March 21, 2023 6:45 PM
Tuesday, April 4, 2023 6:45 PM
Tuesday, April 18, 2023 6:45 PM
Tuesday, May 2, 2023 6:45 PM
Tuesday, May 16, 2023 6:45 PM
Tuesday, June 6, 2023 6:45 PM
Tuesday, June 20, 2023 6:45 PM
Wednesday, July 5, 2023 6:45 PM Moved due to July 4 Holiday Tuesday, July 18, 2023 6:45 PM
Tuesday, August 1, 2023 6:45 PM Cancelled
Tuesday, August 15, 2023 6:45 PM Cancelled
Tuesday, September 5, 2023 6:45 PM
Tuesday, September 19, 2023 6:45 PM
Tuesday, October 3, 2023 6:45 PM
Tuesday, October 17, 2023 6:45 PM
Tuesday, November 7, 2023 6:45 PM
Tuesday, November 21, 2023 6:45 PM
Tuesday, December 5, 2023 6:45 PM
Tuesday, December 19, 2023 6:45 PM
SECTION 3. The regular Council meeting scheduled for January 2, 2024 is cancelled. Council will consider a meeting schedule for 2024 at its January 16, 2024 meeting.

SECTION 4. With proper notice during the year, meetings may be cancelled or added as necessary pursuant to the Brown Act.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 17th day of January, 2023, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:
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Resolution No. 23-___

SIGNED:
________
Hung Wei, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
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CITY OF CUPERTINO
Agenda Item
23-11903 Agenda Date: 1/17/2023
Agenda #: 18.

Subject: Consider amending the 2023 Council Committee Assignments to designate a Council appointment to the Historical Society Advisory Council
Approve amendment to the 2023 Council Committee Assignments to designate Councilmember Moore as the primary and Councilmember Chao as the alternate to the Historical Society Advisory Council CITY OF CUPERTINO Page 1 of 1 Printed on 1/11/2023
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CITY COUNCIL STAFF REPORT
Meeting: January 17, 2023
Subject
Consider amending the 2023 Council Committee Assignments to designate a Council appointment to the Historical Society Advisory Council.

Recommended Action
Approve amendment to the 2023 Council Committee Assignments to designate Councilmember Moore as the primary and Councilmember Chao as the alternate to the Historical Society Advisory Council.

Description
The City Council serves on local and regional organizations as Councilmembers. The Mayor appoints Councilmembers to the standing committees annually. On December 20, 2022, Council approved the appointments of the 2023 Councilmember Committee Assignments. An amendment is necessary to designate Council representatives to the Historical Society Advisory Council. The Amended 2023 Council Committee Assignments (Attachment A) designates Councilmember Moore as the primary and Councilmember Chao as the alternate to the Advisory Council. Staff recommends approving the amendment to the 2023 Council Committee Assignments.

Fiscal Impact
There is no fiscal impact.

Sustainability Impact
There is no sustainability impact.
_____________________________________
Prepared by: Kirsten Squarcia, City Clerk
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A - Amended 2023 Council Committee Assignments Clean
B - Amended 2023 Council Committee Assignments Redline
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2023 Council Committees
Council Committees 2023 Representative 2022 Representative Meetings* Association of Bay Area Governments (ABAG) JR Fruen Jon Annually in April or May Sheila Mohan - Alt Alternate - Darcy Bay Area Metro Center Yerba Buena Conference Room375 Beale StreetSan Francisco, California JR Fruen Alternate - Liang
Liang Chao - Alt Jon 3-4 times a year
Alternate - Darcy
Sounty of Santa Clara, Board of Supervisors’ Chambers, County Government Center – 70 West Hedding Street, 1st Floor, San Jose, CA 951106:15pm Historical Society Advisory Council Kitty Moore 3rd Wednesday of the month at 4:30 p.m.

Liang Chao - Alt Cupertino Chamber of Commerce
(hybrid in-person/zoom if possible)
League of California Cities - Peninsula Division All All 2-3 times a year Dinner meetingsLocation is TBD
League of California Cities - Annual Conference Voting Delegates Mayor Darcy Annual Conference usually held in September Vice Mayor - Alt Alternate - Liang
Silicon Valley Regional Interoperability Authority (SVRIA) Kitty Moore Hung Every two months on the 4th Wednesday of the month Liang Chao - Alt Alternate - Jon Santa Clara PD
601 El Camino, Santa Clara
Santa Clara County Cities Association - Board of Directors Mayor Darcy Monthly on the 2nd Thursday of the Month Vice Mayor- Alt Alternate - Liang 7pm at Sunnyvale City Hall, West conference Room 456 W Olive Ave, Sunnyvale 94086
Santa Clara County Cities Association - City Selection Committee Mayor Darcy As needed and will be held before Board Meeting on 2nd Thursday of the Month Vice Mayor - Alt Alternate - Liang 6pm at Sunnyvale City Hall, West conference Room 456 W Olive Ave, Sunnyvale 94086
Santa Clara County Cities Association - Legislative Committee Hung Wei Darcy As needed JR Fruen - Alt Alternate - Liang 6pm at Sunnyvale City Hall, West conference Room 456 W Olive Ave, Sunnyvale 94086
County of Santa Clara Housing and Community Development Advisory Committee 534
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2023 Council Committees
Council Committees 2023 Representative 2022 Representative Meetings* Santa Clara County Unhoused Task Force
Completed in 2022
Darcy and Liang (CORRECTION: It was Darcy and Kitty)
Santa Clara County Library District Joint Powers Authority - Board of Directors Liang Chao Liang QuarterlySheila Mohan - Alt Alternate - Hung 1:30pm at Library Services & Support Center 1370 Dell Ave., Campbell, CA 95008
Santa Clara Valley Water Commission Kitty Moore Hung Quarterly on the 4th Wednesday of the Month Liang Chao - Alt Alternate - Jon Times and locations vary each month Santa Clara Valley Transportation Authority (PAC) JR Fruen Kitty Monthly on the 2nd Thursday of the MonthPolicy Advisory Committee Kitty Moore - Alt Alternate - Jon 4pm at VTA River Oaks Campus 3331 North First Street, Conference Room B-106
School Partnership and School Liaison Liang Chao Liang Quarterly(CUSD, FUHSD, De-Anza CC) JR Fruen- Alt Alternate/Second - Jon Quinlan Community Center(In 2022, includes CUSD 2x2 with primary and alternate West Valley Mayors and City Managers Mayor Darcy Monthly on the 4th Wednesday of the Month Vice Mayor - Alt Alternate - Liang 12pm
Location changes monthly
State Route 85 Corridor Policy Advisory Board Hung Wei Jon Quarterly on a Monday of the month selected JR Fruen - Alt Alternate - Hung 10am
Location changes each quarter
Silicon Valley Clean Energy Authority (SVCEA) JPA Sheila Mohan Jon Monthly on the 2nd Wednesday of the month Hung Wei - Alt Alternate - Hung 7pm
Cupertino Community Hall
Stevens Creek Corridor Transit Streering Committee Hung Wei Darcy JR Fruen - Alt
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2023 Council Committees
Council Committees 2023 Representative 2022 Representative Meetings* Audit Committee (City of Cupertino) Sheila Mohan and JR Fruen Darcy and Kitty Meets monthly, usually 4th Monday of month City Hall4pm-6pm in Conference Room A
Disaster Council (Cupertino) Liang Chao Liang Quarterly on 3rd Thursday of the Month Kitty Moore Alt Alternate - Darcy City Hall 2pm in EOC
Sister City Committees Kitty Moore and Sheila
Mohan Kitty and Liang As needed
City Hall
Community Engagement Plan (CEP) - Strategic Advisory Committee Liang Chao and Sheila Mohan Kitty and Liang As needed
Economic Development Committee No appointment DO NOT VOTE: Quarterly on the 2nd Wednesday of the Month On hold for now pending upcoming Council direction
City Hall10am in Conference Room A
Environmental Review Committee No appointment Kitty Monthly on the 1st and 3rd Thursday of the Month Alternate - Darcy City Hall
9:30am in Conference Room C
Fiscal Strategic Planning Committee No appointment DO NOT VOTE: Annually in April On hold for now pending upcoming Council direction
City Hall
Legislative Review Committee No appointment Kitty and Liang As needed *Mayor Recommended to serve for efficiency * City Hall * When in-person, otherwise by videoconference.
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2023 Council Committees
Council Committees 2023 Representative 2022 Representative Meetings* Association of Bay Area Governments (ABAG) JR Fruen Jon Annually in April or May Sheila Mohan - Alt Alternate - Darcy Bay Area Metro Center Yerba Buena Conference Room375 Beale StreetSan Francisco, California JR Fruen Alternate - Liang
Liang Chao - Alt Jon 3-4 times a year
Alternate - Darcy
Sounty of Santa Clara, Board of Supervisors’ Chambers, County Government Center – 70 West Hedding Street, 1st Floor, San Jose, CA 951106:15pm Historical Society Advisory Council Kitty Moore 3rd Wednesday of the month at 4:30 p.m.

Liang Chao - Alt Cupertino Chamber of Commerce
(hybrid in-person/zoom if possible)
League of California Cities - Peninsula Division All All 2-3 times a year Dinner meetingsLocation is TBD
League of California Cities - Annual Conference Voting Delegates Mayor Darcy Annual Conference usually held in September Vice Mayor - Alt Alternate - Liang
Silicon Valley Regional Interoperability Authority (SVRIA) Kitty Moore Hung Every two months on the 4th Wednesday of the month Liang Chao - Alt Alternate - Jon Santa Clara PD
601 El Camino, Santa Clara
Santa Clara County Cities Association - Board of Directors Mayor Darcy Monthly on the 2nd Thursday of the Month Vice Mayor- Alt Alternate - Liang 7pm at Sunnyvale City Hall, West conference Room 456 W Olive Ave, Sunnyvale 94086
Santa Clara County Cities Association - City Selection Committee Mayor Darcy As needed and will be held before Board Meeting on 2nd Thursday of the Month Vice Mayor - Alt Alternate - Liang 6pm at Sunnyvale City Hall, West conference Room 456 W Olive Ave, Sunnyvale 94086
Santa Clara County Cities Association - Legislative Committee Hung Wei Darcy As needed JR Fruen - Alt Alternate - Liang 6pm at Sunnyvale City Hall, West conference Room 456 W Olive Ave, Sunnyvale 94086
County of Santa Clara Housing and Community Development Advisory Committee 537
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2023 Council Committees
Council Committees 2023 Representative 2022 Representative Meetings* Santa Clara County Unhoused Task Force
Completed in 2022
Darcy and Liang (CORRECTION: It was Darcy and Kitty)
Santa Clara County Library District Joint Powers Authority - Board of Directors Liang Chao Liang QuarterlySheila Mohan - Alt Alternate - Hung 1:30pm at Library Services & Support Center 1370 Dell Ave., Campbell, CA 95008
Santa Clara Valley Water Commission Kitty Moore Hung Quarterly on the 4th Wednesday of the Month Liang Chao - Alt Alternate - Jon Times and locations vary each month Santa Clara Valley Transportation Authority (PAC) JR Fruen Kitty Monthly on the 2nd Thursday of the MonthPolicy Advisory Committee Kitty Moore - Alt Alternate - Jon 4pm at VTA River Oaks Campus 3331 North First Street, Conference Room B-106
School Partnership and School Liaison Liang Chao Liang Quarterly(CUSD, FUHSD, De-Anza CC) JR Fruen- Alt Alternate/Second - Jon Quinlan Community Center(In 2022, includes CUSD 2x2 with primary and alternate West Valley Mayors and City Managers Mayor Darcy Monthly on the 4th Wednesday of the Month Vice Mayor - Alt Alternate - Liang 12pm
Location changes monthly
State Route 85 Corridor Policy Advisory Board Hung Wei Jon Quarterly on a Monday of the month selected JR Fruen - Alt Alternate - Hung 10am
Location changes each quarter
Silicon Valley Clean Energy Authority (SVCEA) JPA Sheila Mohan Jon Monthly on the 2nd Wednesday of the month Hung Wei - Alt Alternate - Hung 7pm
Cupertino Community Hall
Stevens Creek Corridor Transit Streering Committee Hung Wei Darcy JR Fruen - Alt
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2023 Council Committees
Council Committees 2023 Representative 2022 Representative Meetings* Audit Committee (City of Cupertino) Sheila Mohan and JR Fruen Darcy and Kitty Meets monthly, usually 4th Monday of month City Hall4pm-6pm in Conference Room A
Disaster Council (Cupertino) Liang Chao Liang Quarterly on 3rd Thursday of the Month Kitty Moore Alt Alternate - Darcy City Hall 2pm in EOC
Sister City Committees Kitty Moore and Sheila
Mohan Kitty and Liang As needed
City Hall
Community Engagement Plan (CEP) - Strategic Advisory Committee Liang Chao and Sheila Mohan Kitty and Liang As needed
Economic Development Committee No appointment DO NOT VOTE: Quarterly on the 2nd Wednesday of the Month On hold for now pending upcoming Council direction
City Hall10am in Conference Room A
Environmental Review Committee No appointment Kitty Monthly on the 1st and 3rd Thursday of the Month Alternate - Darcy City Hall
9:30am in Conference Room C
Fiscal Strategic Planning Committee No appointment DO NOT VOTE: Annually in April On hold for now pending upcoming Council direction
City Hall
Legislative Review Committee No appointment Kitty and Liang As needed *Mayor Recommended to serve for efficiency * City Hall * When in-person, otherwise by videoconference.
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CITY OF CUPERTINO
Agenda Item
22-11873 Agenda Date: 1/17/2023
Agenda #: 19.

Subject: Consider approval of response to the 2022 Civil Grand Jury of Santa Clara County Report entitled “Show Me the Money: Financial Transparency Needed”
Approve the response to the 2022 Civil Grand Jury of Santa Clara County Report entitled “Show Me the Money: Financial Transparency Needed”
CITY OF CUPERTINO Page 1 of 1 Printed on 1/11/2023
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CITY ATTORNEY’S OFFICE

CITY HALL
10300 TORRE AVENUE• CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3195 • FAX: (408) 777- 3366
EMAIL: [email protected]
1 CITY COUNCIL STAFF REPORT
Meeting: January 17, 2023
Subject
Consider approval of response to the 2022 Civil Grand Jury of Santa Clara County Report entitled “Show Me the Money: Financial Transparency Needed”
Recommended Action
Approve the response to the 2022 Civil Grand Jury of Santa Clara County Report entitled “Show Me the Money: Financial Transparency Needed”
Background
On December 14, 2022, the 2022 Civil Grand Jury of Santa Clara County released a report regarding compliance with Government Code section 41004. Section 41004 provides: “Regularly, at least once each month, the city treasurer shall submit to the city clerk a written report and accounting of all receipts, disbursements, and fund balances. The city treasurer shall file a copy with the legislative body.” Section 41004 does not specify the manner in which the report is transmitted, except for the requirement that it be in writing.

The Grand Jury Report reviewed compliance with section 41004 for all cities in Santa Clara County. The Grand Jury final report is included as Attachment A.

Discussion
The Grand Jury investigated compliance with Government Code section 41004 and issued one finding and one recommendation regarding the City of Cupertino:

Finding 8
When the Civil Grand Jury began this investigation, the City of Cupertino was not in compliance with California Government Code section 41004. However, starting in March 2022, the City of Cupertino began producing treasurer’s reports compliant with Section 41004.
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2 Recommendation 8
The City of Cupertino should maintain compliance with California Government Code section 41004. Continued compliance is recommended.

Pursuant to California Penal Code section 933(c), the Grand Jury Report requests that the City of Cupertino respond to Finding 8 and Recommendation 8. The Grand Jury Report accurately reflects changes made to the City’s reporting process based on input from the Audit Committee.

A draft response letter for the City Council to consider is included as Attachment B. The proposed response indicates that Cupertino agrees with the finding and recommendation and will continue to comply with Government Code section 41004.

If approved by the City Council, the response letter will be submitted to the Presiding Judge of the Santa Clara County Superior Court before the response deadline.

Sustainability Impact
No sustainability impact.

Fiscal Impact
No fiscal impact.
_____________________________________
Prepared by: Christopher D. Jensen, City Attorney
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A - Civil Grand Jury of Santa Clara County Report
B – Draft Response Letter to Civil Grand Jury of Santa Clara County 542
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2022 Santa Clara County
Civil Grand Jury
December 14, 2022
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TABLE OF CONTENTS
GLOSSARY AND ABBREVIATIONS ...................................................................................... 2 SUMMARY ................................................................................................................................... 3 BACKGROUND ........................................................................................................................... 4 METHODOLOGY ....................................................................................................................... 5 INVESTIGATION ........................................................................................................................ 6 CONCLUSION ........................................................................................................................... 11 FINDINGS AND RECOMMENDATIONS ............................................................................. 12 REQUIRED RESPONSES ......................................................................................................... 15 APPENDIX ................................................................................................................................. 16 REFERENCES ............................................................................................................................ 19 544
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GLOSSARY AND ABBREVIATIONS
Government Code, Section
41004
California Government Code section 41004 states:
“Regularly, at least once each month, the city treasurer shall submit to the city clerk a written report and
accounting of all receipts, disbursements, and fund
balances. The city treasurer shall file a copy with the legislative body.”
Treasurer’s Reports The reports required by Government Code section 41004 may have various styles and titles. For purposes of this report, the Civil Grand Jury will refer to these reports throughout as "treasurer's reports."
Charter City Article XI, section 3(a) of the California Constitution authorizes the adoption of a city charter and provides that the charter has the force and effect of state law. Article XI, section 5(a), the "home rule" provision, grants to charter cities the ability to govern over "municipal affairs."
There are six charter cities in Santa Clara County: San José, Palo Alto, Santa Clara, Sunnyvale, Gilroy, and
Mountain View.

General Law City A general law city may only have a form of government authorized by state general law. A city that has not
adopted a charter is bound by the state’s general laws even with respect to municipal affairs.

There are nine general law cities and towns in Santa Clara County: Los Altos, Los Altos Hills, Los Gatos, Milpitas, Campbell, Monte Sereno, Cupertino, Saratoga and
Morgan Hill. The scope of this investigation is limited to general law cities.

GAAP Generally Accepted Accounting Principles: a set of accounting rules and standards established by the
accounting industry.
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SUMMARY
General law cities in California are required to comply with California Government Code section 41004 (Section 41004), which states, “at least once each month, the city treasurer shall submit to the city clerk a written report and accounting of all receipts, disbursements, and fund balances.

The city treasurer shall file a copy with the legislative body.” The benefit of the law is to ensure financial accountability and public transparency as well as to foster better fiscal affairs. Treasurer's reports provide city councils with timely and accurate financial information necessary to make reliable and sound decisions.

The 2022 Santa Clara County Civil Grand Jury (Civil Grand Jury) found that there is widespread noncompliance with this state requirement throughout Santa Clara County (County) by the general law cities. As of the date of this report, six of the nine general law cities1 in the County are noncompliant with this state law: Los Altos, Los Altos Hills, Los Gatos, Milpitas, Campbell, and Monte Sereno. Additionally, the City of Cupertino was initially noncompliant until the city took corrective action during the Civil Grand Jury’s investigation. The City of Saratoga and City of Morgan Hill were the only two cities compliant prior to the investigation.

Based on responses from city officials, the Civil Grand Jury determined that there is a widespread misunderstanding among these general law cities in the County regarding Section 41004 reporting requirements. The Civil Grand Jury recommends that the noncompliant cities – Los Altos, Los Altos Hills, Los Gatos, Milpitas, Campbell, and Monte Sereno – comply with Section 41004. 1 The Town of Los Altos Hills and the Town of Los Gatos are general law cities. 546
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BACKGROUND
The State Legislature established the office of city treasurer by enactment of California Government Code, Title 4 - Government of Cities, Division 3 - Other Officers, Chapter 3 - City Treasurer. The statutory duties for city treasurers may generally be found in the following sections:

Section 41001: The city treasurer shall receive and safely keep all money the treasurer receives.

Section 41002: (a) The city treasurer shall comply with all laws governing the deposit and securing of public funds and the handling of trust funds in their possession; and (b) if the city has issued bonds, the city treasurer shall use a system of accounting and auditing that adheres to generally accepted accounting principles.

Section 41003: The city treasurer shall pay out money only on warrants signed by legally designated persons.

Section 41004: Regularly, at least once each month, the city treasurer shall submit to the city clerk a written report and accounting of all receipts, disbursements, and fund balances.

The city treasurer shall file a copy with the legislative body.

Pursuant to California Government Code section 36502, the city treasurer is an elective office.

California Government Code section 36508 and California Elections Code section 9222 permit cities to submit to the electors the question of whether the city treasurer position should be an appointive office. In that instance, the financial duties assigned by the state statutes to the city treasurer are transferred from an elected treasurer to an appointed officer if approved by the electorate. Only one general law city in the County, Morgan Hill, continues to have an elected city treasurer, who serves for four years. All other cities in the County have opted to assign city treasurer duties to senior administrative staff.
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METHODOLOGY
Upon receiving a complaint regarding Government Code section 41004 noncompliance in Cupertino, the Civil Grand Jury decided to expand the investigation to review all nine general law cities in the County: Los Altos, Los Altos Hills, Los Gatos, Milpitas, Campbell, Monte Sereno, Cupertino, Saratoga, and Morgan Hill. From March to August 2022, the Civil Grand Jury began the process by polling these Cities to determine if they produced treasurer’s reports.

The Civil Grand Jury took the following steps:

• Contacted a total of 22 officials across nine cities who were responsible for tasks relevant to the topic of this report.
• Reviewed relevant sections of the California Government Code, California Elections Code, and examined the ordinances, policies, and memos of each city relevant to their city treasurer duties.

• Reviewed published city council and city committee agendas relevant to Section 41004. • Reviewed other relevant city documents, including but not limited to financial audits, city organizational charts, and relevant job descriptions.
• Verified the six most recent treasurer’s reports of each city, if submitted.

The Civil Grand Jury inspected the contents of each report to verify the inclusion of the required elements: monthly disbursements, receipts, and fund balances. The Civil Grand Jury also determined whether the reports were published at least once each month to be compliant with Section 41004.

It should be noted that most cities do not call their report “Treasurer’s Report.” Appendix A provides links to examples of compliant Section 41004 reports, showcasing variations in terms of report name, style, layout, and appearance.

The Civil Grand Jury used the 2011-2012 Solano County Civil Grand Jury report entitled “City Treasurer Functional Review” as a reference for this report. 548
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INVESTIGATION
All interviews and email correspondence were designed to determine if general law cities complied with Section 41004. To be deemed compliant, a city must produce a financial document at least once each month that details all of the following: monthly disbursements, receipts, and fund balances – and must be filed with the legislative body. Six months of reports were requested to verify an existing track record. Data collection and verification took place from March to July 2022.

The results of this investigation are depicted in Table 1 below.

Table 1. Section 41004 Compliance Among Nine General Law Cities City/Town Compliant Noncompliant
Los Altos X
Los Altos Hills X
Los Gatos X
Milpitas X
Campbell X
Monte Sereno X
Cupertino X*
Saratoga X
Morgan Hill X
*During the investigation, Cupertino started complying with Section 41004.

There are a number of reasons for cities’ noncompliance:
• Some cities were under the impression that the Section 41004 mandate was a discretionary guideline.
• Others adopted the practice of other cities that did not produce the requisite monthly reports.

However, the primary error among the cities was that they produced abbreviated reports that omitted required information such as receipts, disbursements, and fund balances. Some of the deficient reports lacked substance, with abbreviated information presented without context or details.

The Civil Grand Jury believes there is no fiscal impact involved in complying with Section 41004.

Outside resources should not be required since existing staff already make some financial reports, collect this type of data, and should be able to produce treasurer’s reports. Therefore, each of the deficient cities can be compliant with minimal effort or burden. 549
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Noncompliant Cities and Towns
Los Altos
The City of Los Altos does not have an elected city treasurer. Further, the Los Altos Municipal Code does not specifically state which official performs the duties of a city treasurer. Los Altos Municipal Code Section 2.01.060, however, provides that the city manager is the administrative head of the city and is specifically empowered “keep the council at all times fully advised as to the financial condition and needs of the city.” In the City of Los Altos, monthly treasurer’s reports are not prepared and submitted to the city clerk in accordance with Section 41004.

At the time of the Civil Grand Jury inquiry in June 2022, the City of Los Altos did not submit any treasurer’s reports. According to the City of Los Altos, Government Code section 37208 indemnified them from the Section 41004 mandate. However, the language of Government Code Section 37208 refers to payroll warrants or checks and makes no mention of the reporting required by Section 41004, which requires a report of “receipts, disbursements and general fund balances.” Moreover, the language of Government Code Section 37208 neither excuses a city from complying with Section 41004 nor makes any reference to Section 41004.

Further, the city erroneously noted that its Generally Accepted Accounting Principles (GAAP) policy on financial reporting excused noncompliance with Section 41004 reporting requirements.

In 2015, the city adopted a “Financial Policy” that reads in part, “The city’s accounting and financial reports are to be maintained in accordance with GAAP.” GAAP accounting does not address the Section 41004 mandated requirements.
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The Civil Grand Jury determined that the City of Los Altos does not produce treasurer’s reports and thus is noncompliant.

Los Altos Hills
The Town of Los Altos Hills does not have an elected city treasurer. The town’s Municipal Code is silent on who performs the duties of the treasurer; however, the Civil Grand Jury learned that the treasurer responsibilities fall to the director of administrative services.

The Civil Grand Jury received monthly treasurer’s reports in June 2022. Upon inspection, however, they contained only disbursements and lacked receipts as well as fund balances; thus the reports are incomplete and noncompliant.

Los Gatos
The Town of Los Gatos does not have an elected city treasurer. The town’s Municipal Code Section 2.30.035 delegates the responsibility of the treasurer and the ability to assign those duties to the town manager. The director of finance is responsible for the town’s financial matters. The Town of Los Gatos produces quarterly reports, not monthly reports as required by Section 41004.

While the disbursements, receipts, and fund balances are in the reports, they must be published at least once each month to comply with Section 41004. Because the production intervals are quarterly, the Town of Los Gatos is not in compliance.

Milpitas
The City of Milpitas does not have an elected city treasurer. Milpitas Municipal Code section VI1-3.02 vests the duties of a city treasurer with the city manager, who is empowered to appoint a city treasurer pursuant to Section VI-1-3.04. In the City of Milpitas, the finance director produces weekly disbursement reports, quarterly receipt and investment reports for the general and special districts’ funds, and annual reports for all other reporting.

At the time of inquiry in June 2022, the Civil Grand Jury noted well-prepared reports. However, the frequency of report submission does not meet Section 41004 criteria, which requires monthly reports. Reports showing all receipts, disbursements, and fund balances must be filed with the city clerk at least once each month. Due to submission infrequency, the City of Milpitas is not in compliance.

Campbell
In November of 2010, voters in the City of Campbell approved Measure O, which changed the office of the city treasurer (and city clerk) from an elected to an appointed office. The City of 551
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Campbell’s Municipal Code is silent on who has officially assumed those duties.2 The Civil Grand Jury learned that the city’s finance director has the responsibilities of a treasurer and oversees the preparation of financial reports. The reports are prepared by the accounting clerk, reviewed by the finance manager and the finance director, and approved by the city manager for inclusion in the council packet.

At the time of inquiry in June 2022, 21 reports were submitted. The submitted documents had no payroll records and accounts payable balances with paid or disbursed funds. Additionally, the required information was not published at least once each month.

The City of Campbell’s submitted reports do not comply with Section 41004 because disbursements, receipts, and balances are not filed at least once each month.

Monte Sereno
The City of Monte Sereno does not have an elected city treasurer. The Monte Sereno Municipal Code section 2.04.010 designates the city manager as the director of finance and tasks the city manager with “performing all duties of City treasurer as set forth in Government Code sections 41000 et seq.” At the time of inquiry in June 2022, six treasurer’s reports were received by the Civil Grand Jury. While the reports did contain the required fund balances, the receipts and disbursements were not compliant with the Section 41004 requirement.

Compliant Cities
Cupertino
The City of Cupertino does not have an elected city treasurer. The City of Cupertino’s Municipal Code section 2.24.030 states:

The treasurer shall make monthly reports which conform to the requirements of Government Code Section 41004. Said reports shall be delivered to the City Council, city manager and made available for review by such other persons who may so request.

Until 2022, no staff member for the City of Cupertino had been preparing and delivering a monthly treasurer’s report to the Cupertino City council. However, during the Civil Grand Jury's 2 The City of Campbell’s Municipal Code does not appear to have been updated. The City of Campbell’s Municipal Code section 2.08.010 still states that the elected officers shall be those designated by general laws, which includes a city treasurer. Further, the code has other references to an elected city treasurer. (See Sections 2.16.040 [city treasurer compensation] and 2.16.010 [establishment of salaries].) 552
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investigation, the belated monthly treasurer’s reports for January and February 2022 were published and placed on the Cupertino Audit Committee agenda.

The Civil Grand Jury recognizes the action taken by the City of Cupertino as soon as it was brought to their attention. The City of Cupertino is now compliant with Section 41004 as of March 2022, despite the stated history of not submitting the required reports.

Saratoga
The City of Saratoga does not have an elected city treasurer. The City of Saratoga Municipal Code section 2-20.035 states that the city manager shall serve as the city treasurer and be responsible for “other duties and responsibilities as required by law to be performed by the City Treasurer.” Thus, the city manager is responsible for the preparation and submission of monthly treasurer’s reports.

The Civil Grand Jury verified in June 2022 that regular monthly treasurer’s reports are filed with the City of Saratoga and are fully compliant with Section 41004. These reports can also be found by the public on the city’s website. An example is shown in Appendix A.

Morgan Hill
The City of Morgan Hill has an elected city treasurer. The treasurer, in conjunction with the finance director, prepares the treasurer’s reports.

The Civil Grand Jury verified in June 2022 that regular monthly treasurer’s reports are produced.

The reports contain all the required components of disbursements, receipts, and fund balances.

Thus, the City of Morgan Hill is compliant with Section 41004. A compliant Morgan Hill treasurer’s report is shown in Appendix A.
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CONCLUSION
Within the County, there is widespread noncompliance with California Government Code section 41004 by the general law cities. The Civil Grand Jury commends the cities of Saratoga and Morgan Hill for being in full compliance and notes the City of Cupertino’s quick action to become compliant. The Civil Grand Jury recommends that the noncompliant cities of Los Altos, Los Altos Hills, Los Gatos, Milpitas, Campbell, and Monte Sereno comply with Section 41004. This is to be done by producing treasurer’s reports at least once each month containing the required disbursements, receipts, and fund balance information. The benefit of implementing this recommendation overshadows any limited cost impact since existing staff could compile the report. In short, there is great benefit in producing these reports, as they improve financial transparency to the residents of the cities.
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FINDINGS AND RECOMMENDATIONS
It is recommended that noncompliant cities start producing treasurer’s reports as required by law.

Some cities produce abbreviated information that does not include requisite financial information as defined in state Government Code section 41004. Some cities produce requisite reports, but not on a monthly basis.

Finding 1
The City of Los Altos is not submitting monthly treasurer’s reports in compliance with California Government Code section 41004.

Recommendation 1
The City of Los Altos should comply with Government Code section 41004 by submitting monthly treasurer’s reports that include monthly disbursements, receipts, and fund balances and by filing those reports with the city. This recommendation should be implemented by March 15, 2023.

Finding 2
The City of Los Altos does not produce treasurer’s reports in compliance with California Government Code section 41004. The reason provided for non-compliance was that the City of Los Altos’ financial policy does not require the preparation and submission of treasurer’s reports.

It is an erroneous belief that internal policies excuse compliance with Government Code section 41004.

Recommendation 2
The City of Los Altos should amend its financial policy to require that monthly treasurer’s reports be prepared and submitted in accordance with California Government Code section 41004 by March 15, 2023.

Finding 3
The Town of Los Altos Hills produces monthly treasurer’s reports but the content of those reports lacks monthly disbursements, receipts, and fund balances required by California Government Code section 41004.

Recommendation 3
The Town of Los Altos Hills should update their existing monthly reports to include monthly disbursements, receipts, and fund balances by March 15, 2023.

Finding 4
The Town of Los Gatos produced reports that contain the required content but does not produce the treasurer’s reports on a monthly basis as required by California Government Code section 41004.
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Recommendation 4
The Town of Los Gatos should produce its reports on a monthly basis to comply with California Government Code section 41004 by March 15, 2023.

Finding 5
The City of Milpitas does not produce monthly treasurer’s reports as required by California Government Code section 41004.

Recommendation 5
The Civil Grand Jury recommends that the City of Milpitas comply with California Government Code section 41004 by producing monthly treasurer’s reports that include monthly disbursements, receipts, and fund balances by March 15, 2023.

Finding 6
The City of Campbell does not produce monthly treasurer’s reports as required by California Government Code section 41004.

Recommendation 6
The City of Campbell should comply with California Government Code section 41004 by producing monthly treasurer’s reports that include monthly disbursements, receipts, and fund balances by March 15, 2023.

Finding 7
The City of Monte Sereno does not produce monthly treasurer’s reports as required by California Government Code section 41004.

Recommendation 7
The City of Monte Sereno should comply with California Government Code section 41004 by producing monthly treasurer’s reports that include monthly disbursements, receipts, and fund balances by March 15, 2023.

Finding 8
When the Civil Grand Jury began this investigation, the City of Cupertino was not in compliance with California Government Code section 41004. However, starting in March 2022, the City of Cupertino began producing treasurer’s reports compliant with Section 41004.

Recommendation 8
The City of Cupertino should maintain compliance with California Government Code section 41004. Continued compliance is recommended.
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Finding 9
The Civil Grand Jury commends the City of Saratoga for producing monthly treasurer’s reports that include disbursements, receipts, and fund balances. The City of Saratoga is in full compliance with California Government Code section 41004.

Recommendation 9
No recommendation.

Finding 10
The Civil Grand Jury commends the elected city treasurer for producing monthly treasurer’s reports that include monthly disbursements, receipts, and fund balances. The City of Morgan Hill is in full compliance with California Government Code section 41004.

Recommendation 10
No recommendation.
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REQUIRED RESPONSES
Pursuant to California Penal Code section 933(b) et seq. and California Penal Code section 933.05, the Civil Grand Jury requests responses from the following governing bodies:

Responding Agency Findings Recommendations
City of Los Altos 1, 2 1, 2
Responding Agency Findings Recommendations
Town of Los Altos Hills 3 3
Responding Agency Findings Recommendations
Town of Los Gatos 4 4
Responding Agency Findings Recommendations
City of Milpitas 5 5
Responding Agency Findings Recommendations
City of Campbell 6 6
Responding Agency Findings Recommendations
City of Monte Sereno 7 7
Responding Agency Findings Recommendations
City of Cupertino 8 8
Responding Agency Findings Recommendations
City of Saratoga 9
Responding Agency Findings Recommendations
City Treasurer of Morgan Hill 10
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APPENDIX A: EXAMPLES OF COMPLIANT TREASURER’S

REPORTS
On the following pages are two examples of monthly treasurer’s reports that contain the required disbursements, receipts, and starting and ending fund balances and are therefore compliant with California Government Code section 41004. They are included to show that there are various names and formats that the reports may take. Following the examples are links to the full reports for ease of access.
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Example 1. Page 3 of 7 from Saratoga August 2022 Treasurer’s Report https://legistarwebproduction.s3.amazonaws.com/uploads/attachment/pdf/1578630/Treasurer_Report_for_August_ 2022.pdf
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Example 2. Page 12 of 21 from Morgan Hill March 2022 Financial and Investment Report https://www.morgan-hill.ca.gov/DocumentCenter/View/40944/March-2022-Financial-andInvestment-Report-PDF 561
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REFERENCES
Bibliography
Campbell City Council meetings: December 7, 2021-June 7, 2022. Regular agenda item from the Finance Department, titled Approving Bills and Claims. https://campbellca.gov/AgendaCenter/ (Accessed November 28, 2022).

Campbell City Council meeting: February 1, 2022. Regular agenda item from the Finance Department, titled Investment Report – Quarter Ending December 2021. https://campbellca.gov/AgendaCenter/ (Accessed November 28, 2022).

Campbell City Council meeting: May 3, 2022. Regular agenda item from the Finance Department, titled Investment Report – Quarter Ending March 2022. https://campbellca.gov/AgendaCenter/ (Accessed November 28, 2022).

Campbell City Council meetings: December 7, 2021 – June 7, 2022. Regular agenda item from the Finance Department, titled Monthly Investment Transactions Report. https://campbellca.gov/AgendaCenter/ (Accessed November 28, 2022).

Campbell City Council meeting: April 25, 2022, Study Session Meeting of the Campbell City Council. https://campbellca.gov/AgendaCenter/ (Accessed November 28, 2022).

City of Cupertino, A- Payments to Chamber Jan 2015- Mar 2022. Report, 2022. https://cupertino.legistar.com/ (Accessed November 28, 2022).

City of Cupertino Administrative Services Department Finance Division, Fiscal Year 2019-2020 Comprehensive Annual Financial Report. https://cupertino.legistar.com/ (Accessed November 28, 2022).

City of Cupertino, Audit Committee meeting, May 23, 2022. https://cupertino.legistar.com/MeetingDetail.aspx?ID=923553&GUID=0C41F4A6-93D2-4B90- AAEB-7E5FF0F1EF8C&Search= (Accessed November 28, 2022).

City of Cupertino, B- Festivals – City Fees Waived & City Expenses. Report, 2022. https://cupertino.legistar.com/ (Accessed November 28, 2022).

Cupertino City Council meeting, April 21, 2022: March 2022 Report of City-wide Fund Balances/Net Position. http://cupertino.legistar.com/ (Accessed November 28, 2022).

Cupertino City Council meeting April 21, 2022: March 2022 Report of City-wide Receipts, Disbursements, and Cash Balances Cash Investments. http://cupertino.legistar.com/ (Accessed November 28, 2022).
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Cupertino City Council meeting, April 25, 2022. Administrative Services Department, Audit Committee Staff Report for March, 2022. https://cupertino.legistar.com/ (Accessed November 28, 2022).

Cupertino City Council meeting, May 3, 2022. City Manager’s Office, City Council Staff Report. https://cupertino.legistar.com/ (Accessed November 28, 2022).

Cupertino City Council meeting, May 19, 2022. Amended Agenda of the Cupertino City Council. https://cupertino.legistar.com/ (Accessed November 28, 2022).

Cupertino Office of the City Clerk, Notice of Adjournment of the May 17, 2022. Notice, May 17, 2022. https://cupertino.legistar.com/ (Accessed November 28, 2022).

Cupertino, Payment Register. Report, December 21, 2021. http://cupertino.legistar.com/ (Accessed November 28, 2022).

Cupertino, Resolution NO. 22-015. Resolution, 2022. http://cupertino.legistar.com/ (Accessed November 28, 2022).

City of Lancaster, Excerpt from A Quick Summary for the Press and Researchers, https://www.cityoflancasterca.org/home/showpublisheddocument/10103/635775792210230000 (Accessed November 28, 2022).

Los Altos City Council meetings, January, 2022 – May, 2022. Monthly Disbursement Listing. https://www.losaltosca.gov/calendar/month?field_microsite_tid=2131&field_microsite_tid_1=Al l (Accessed November 28, 2022).

Los Altos City Council meeting, May 24, 2022. Quarterly Investment Portfolio Report – Quarter Ended March 31, 2022. https://www.losaltosca.gov/citycouncil/page/city-council-meeting-155 (Accessed November 28, 2022).

Los Altos City Council meeting, March 8, 2022. Quarterly Investment Portfolio Report – Quarter Ended December 31, 2021. https://mccmeetingspublic.blob.core.usgovcloudapi.net/losaltoscameet-419c5823741c494d9706451908d3061f/ITEM-Attachment-001- 0979a9a16c5c4dc898b8e8d7d4d4a6e1.pdf (Accessed November 28, 2022).

Los Gatos Town Council meeting, February 15, 2022. Second Quarter Investment Report (October through December 2021) for Fiscal Year 2021/22.
https://mccmeetings.blob.core.usgovcloudapi.net/losgatos-pubu/MEET-Packet94e86df454424b8b95ccc3f6eff96e41.pdf (Accessed November 28, 2022).

Los Gatos Town Council meeting, May 17, 2022. Third Quarter Investment Report (January through March 2022) for Fiscal Year 2021/22
https://mccmeetings.blob.core.usgovcloudapi.net/losgatos-pubu/MEET-Packet997ea555609c4af9b94eeb28b34fc7e3.pdf (Accessed November 28, 2022).

Monte Sereno City Council meetings: December 28, 2021 – June 3, 2022. Regular agenda item from the Finance Department submitting the monthly Treasurer’s Report. https://montesereno.civicweb.net (Accessed November 28, 2022). 563
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City of Morgan Hill Finance Division, Monthly Financial and Investment Reports. March 31, 2022. https://www.morgan-hill.ca.gov/DocumentCenter/View/40944/March-2022-Financial-andInvestment-Report-PDF (Accessed November 28, 2022).

City of Saratoga Administrative Services, Treasurer’s Report for the Month Ended August 31, 2022. Final Report, October 5, 2022. https://legistarwebproduction.s3.amazonaws.com/uploads/attachment/pdf/1578630/Treasurer_Report_for_August_ 2022.pdf (Accessed November 28, 2022).

Solano County 2011-2012 Grand Jury, City Treasurer Functional Review. Final Report, January 12, 2012. https://solano.courts.ca.gov/wp-content/uploads/2020/01/111227-City-TreasurerFinal.pdf (Accessed November 28, 2022).

California Government Code Sections 34000 – 45345.

Los Gatos Municipal Code 2.30.035.

Milpitas Municipal Code VI-1-3.04.

Interviews
Interviews were conducted with 16 individuals between April 25, 2022, and June 16, 2022. 564
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This report was ADOPTED by the 2022 Santa Clara County Civil Grand Jury on this 14th day of December, 2022.
______________________________
Karen Enzensperger
Foreperson
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January 18, 2023
Honorable Beth McGowen
Presiding Judge (2023)
Superior Court of California
County of Santa Clara
191 North First Street
San José, CA 95113
RE:   Civil Grand Jury Report
Dear Judge McGown:

Pursuant to California Penal Code section 933 et seq., please find enclosed the City of Cupertino’s response to the 2022 Santa Clara County Civil Grand Jury Report, “Show Me the Money: Financial Transparency Needed.” The City Council approved the City’s response to the Grand Jury Report on January 17, 2023. The approved City response is enclosed for your review. Thank you for your consideration
Sincerely,

Pamela Wu
City Manager
Enclosure
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CITY OF CUPERTINO RESPONSE TO THE FINDINGS AND RECOMMENDATIONS OF THE 2022 SANTA CLARA COUNTY CIVIL GRAND JURY REPORT, “SHOW ME THE MONEY:

FINANCIAL TRANSPARENCY NEEDED”
Finding 8
When the Civil Grand Jury began this investigation, the City of Cupertino was not in compliance with California Government Code section 41004. However, starting in March 2022, the City of Cupertino began producing treasurer’s reports compliant with Section 41004.

Response: Agree. The City is presently in compliance with Government Code section 41004.

Recommendation 8
The City of Cupertino should maintain compliance with California Government Code section 41004. Continued compliance is recommended.

Response: Agree. The City will continue to comply with Government Code section 41004.
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CITY OF CUPERTINO
Agenda Item
22-11855 Agenda Date: 1/17/2023
Agenda #: 20.

Subject: Status update on the 6th Cycle Housing Element update Receive the report on the status of the Housing Element update and the next steps identified in this report to expedite the Housing Element review process
CITY OF CUPERTINO Page 1 of 1 Printed on 1/11/2023
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CITY COUNCIL STAFF REPORT
Meeting: January 17, 2023
Subject
Status update on the 6
th Cycle Housing Element update.

Recommended Action
Receive the report on the status of the Housing Element update and the next steps identified in this report to expedite the Housing Element review process.

Discussion
Draft Housing Element: Current Status
On November 15, 2022, the City Council unanimously voted (5-0-0) to direct staff to make the draft Housing Element available for public review and comment for a period of at least 30 days, as required by State law (Government Code, section 65585(b)(1)), prior to submitting the draft Housing Element to the California Department of Housing and Community Development (HCD), the State agency with oversight authority for Housing Element update compliance. Per the Council’s direction, the draft Housing Element was made available for public comment on November 18, with the comment period ending on December 23, 2022, a comment period of 36 days. During this time, the City received written comments (Attachment A) from approximately 20 individuals and organizations. As further required by State law, staff is now in the process of reviewing and responding to the comments received since beginning the Housing Element update. Once the responses to comments have been prepared, the draft Housing Element can then be submitted to HCD for comment. HCD’s typical review period takes 90 days. State law requires that comments received on the draft Housing Element must be reviewed for a minimum of 10 days from the close of the comment period prior to the draft Housing Element being submitted to HCD for its review.

The draft Housing Element that was made available for public comment on November 18 was prepared as an “administrative draft” and provided to staff by the City’s original consultant (EMC Planning) in mid-October, shortly before termination of their contract with the City. An administrative draft is a first draft document that is intended for further review, editing and refinement with City Staff’s input prior to the document being made available for public review.

However, on November 15, Council, consistent with staff’s recommendation, elected to release the administrative draft for public review. The purpose of this decision was to expedite the 569
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2 lengthy and often iterative HCD review and certification process, the first step of which is HCD’s 90-day review of the City’s draft Housing Element.

At the conclusion of HCD’s 90-day review, cities typically receive a response from HCD in the form of a detailed comment letter. Having received the comment letter, cities are then in a better position to address HCD’s concerns, as opposed to speculating as to what those concerns may be in advance.

Staff is presently working on the draft Housing Element and responses to comments received with the urban planning consulting firm, PlaceWorks, under a contract through the City Manager’s office. Staff is also working with PlaceWorks on a revised and refined scope of work and new agreement that would include finalizing the updated Housing Element, completing an environmental impact report (EIR), and work related to the necessary zoning and land use changes to accommodate the new housing units identified in the draft Housing Element sites inventory. Staff anticipates the proposed agreement with PlaceWorks to be brought to Council on February 7, 2023. Preparation of an EIR will be a critical path for the project. It is estimated that the EIR process will take 9 to 12 months. The City Council is the legislative body required to certify EIRs, it is staff’s goal to have the EIR certified in conjunction with approval of the Housing Element.

Next Steps/Estimated Timeline
At present, a Sites Inventory has been approved, extensive community outreach has been completed and the draft Housing Element has been made available for public review and comment. The upcoming steps necessary to complete and certify the Housing Element are as follows (see Figure 1, below, for a graphic representation):
1) Submit the Draft Housing Element to HCD for their review and comment. This will be done by January 31, 2023;
2) HCD’s initial review period is 90 days. During the latter part of this review period (60-70 days into the 90-day period), prior to receiving HCD’s comment letter, City staff and PlaceWorks will meet with HCD to discuss their main issues and the changes that will be necessary to make the draft Housing Element a certifiable document. It is estimated that HCD’s review will be completed by the end of April 2023;
3) Once HCD’s formal comment letter is received by the City, staff and PlaceWorks will make any necessary changes to the draft Housing Element, including addressing comments received from the public. The time involved to revise the draft is variable, depending on the extent of the changes that will be needed, but is estimated at 30-60 days; 4) The revised draft Housing Element will then be presented to the City’s Housing Commission, Planning Commission and City Council for their review and comment. Additional review of the revised Draft Housing Element by HCD may be necessary (this would take up to 60 days). It is estimated that the review of the revised draft by the Housing Commission, Planning Commission and City Council will take two to four months and could occur between July and October 2023; 570
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3 5) The City Council is the local legislative body that adopts the Housing Element. The Housing Element must then be certified by HCD and found compliant with state law. The City expects to adopt its Housing Element by December 2023.
6) An EIR will need to be prepared for the adoption of the Housing Element to enable the zoning land use changes necessary to accommodate the additional housing units and housing density to comply with the City’s RHNA. Preparation of an EIR is a critical path for the project and is estimated to take 9 to 12 months. The EIR will be progressing on a separate but concurrent track with the Housing Element update. Staff expects to have the initial work on the EIR begin in February, with the Notice of Preparation (NOP), the first step in the EIR process, being released late in the month. It is staff’s goal to have the EIR certified in conjunction with approval of the Housing Element in order to be in compliance with State housing laws. Staff will provide regular updates on the progress of both the Housing Element update and the EIR processes.

Figure 1: Upcoming Steps Roadmap
Prepared by: Luke Connolly, Acting Community Development Director Reviewed by: Christopher Jensen, City Attorney
Michael Woo, Assistant City Attorney
Approved for submission by: Pamela Wu, City Manager
Attachment A: Comments received on the Draft Housing Element We are here
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1 Cyrah Caburian
From: City of Cupertino Planning Dept.

Sent: Tuesday, November 29, 2022 7:53 AM
To: Luke Connolly; Piu Ghosh (she/her)
Subject: FW: Request to be added to the housing elements sites Follow Up Flag: Follow up
Flag Status: Flagged
FYI/From Planning Inbox:

Cyrah Caburian
Administrative Assistant
Community Development
[email protected]
(408) 777-1374
From: Daisy Zuniga
Sent: Monday, November 28, 2022 4:01 PM
To: City Council <[email protected]>; City of Cupertino Planning Dept. <[email protected]> Subject: Request to be added to the housing elements sites CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Honorable Mayor, Vice mayor, City Council and Planning Department, My family and I will be the new owner of 11041 Stevens Canyon Rd by the end of Nov 2022. It is a property with 19 acres that we believe could allow for 4 homes, an engineer previously identified that 3 with a General Plan Amendment.

The intention currently is to build these homes for family members to all live nearby. If possible, we would like to be added to the Housing Element Site Selection, pending of course all necessary requirements.

Thank you for your consideration,
Daisy Zuniga (daughter)
Victor & Hortencia Zuniga (Dad & Mom)
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1 Cyrah Caburian
From: City of Cupertino Planning Dept.

Sent: Tuesday, December 6, 2022 1:46 PM
To: Luke Connolly
Cc: Piu Ghosh (she/her)
Subject: FW: Housing Element Update question - Site 11a: South Blaney Attachments: HEU_Draft_ 10787 S. Blaney Ave.pdf
Follow Up Flag: Follow up
Flag Status: Flagged
From Planning General inbox:

Cyrah Caburian
Administrative Assistant
Community Development
[email protected]
(408) 777-1374
From: Blake Wellen
Sent: Tuesday, December 6, 2022 1:33 PM
To: City of Cupertino Planning Dept. <[email protected]> Subject: Housing Element Update question - Site 11a: South Blaney CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Greetings, Cupertino Planning.

The captioned property, 3.23 Acres at 10787 S. Blaney Ave (et al), is listed in the recent Housing Element Update draft; Target Number of Housing Units: 98 units; HEU Proposes “minimum of 30 dwelling units per acre”. - If the “minimum density is proposed at 30 du/ac, what would the maximum density be? - Could a proposed project, that aligns with the proposed updates and standards, be 100% residential? Or would there need to be a mixed use component? Kindly,
Blake Wellen
Bella Vista Land Advisors
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B4-31 EMC Planning Group Inc.

Site 11a: South Blaney
Address: 10787 S. Blaney Ave (et al)
Target Number of Housing Units: 98 units
Description: The South Blaney 11a site is located in the South Blaney Neighborhood, which is a mix of single- and multi-family housing and commercial uses located immediately north of Bollinger Road. Existing uses on the site include commercial structures. Neighboring uses include commercial and single-family uses. This site has been targeted for rezoning to P(CGRes), which would allow a total of 98 units built at a minimum of 30 dwelling units per acre.

There are no existing units on the site; the number of net new units would be 98 units.

Constraints: Rezoning required
Figure B4-23, South Blaney (Site 11a), shows an aerial view of the South Blaney 11a site.

Figure B4-23 South Blaney (Site 11a)
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1 Cyrah Caburian
From: City of Cupertino Planning Dept.

Sent: Tuesday, December 6, 2022 3:27 PM
To: Luke Connolly
Cc: Piu Ghosh (she/her)
Subject: FW: Housing Element Update question - Site 08c: Monta Vista South Attachments: HEU_Draft_ 21710 Regnart Road (et al).pdf
Follow Up Flag: Follow up
Flag Status: Flagged
From Planning General inbox:

Cyrah Caburian
Administrative Assistant
Community Development
[email protected]
(408) 777-1374
From: Blake Wellen
Sent: Tuesday, December 6, 2022 1:55 PM
To: City of Cupertino Planning Dept. <[email protected]> Subject: Housing Element Update question - Site 08c: Monta Vista South CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Greetings, Cupertino Planning.

The captioned property, 1.5 Acres at 21710 Regnart Road (et al), is listed in the recent Housing Element Update draft; Target Number of Housing Units: 23 units; HEU Proposes “minimum of 15 dwelling units per acre”. - If the “minimum density is proposed at 15 du/ac”, what would the maximum density be? Kindly,
Blake Wellen
Bella Vista Land Advisors

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B4 Vacant and Available Sites
B4-24 EMC Planning Group Inc.

Site 08c: Monta Vista South
Address: 21710 Regnart Road (et al)
Target Number of Housing Units: 23
Description: The Monta Vista South 08c Site is located in the Monta Vista South Neighborhood, which is predominantly defined by single-family residential homes and located immediately east of the foothills. Existing uses on the site include one single-family home and open space. Neighboring uses include single-family homes.

This site has been targeted for rezoning to R1-5, which would allow a total of 23 units built at a minimum of 15 dwelling units per acre. There is one (1) existing unit on the site that would be lost; the number of net new units would be 22 units.

Constraints: Rezoning required
Figure B4-18, Monta Vista South Site (Site 08c), shows an aerial view of the Monta Vista South 08c site.

Figure B4-18 Monta Vista South Site (Site 08c)
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1 Cyrah Caburian
From: Housing
Sent: Tuesday, December 20, 2022 1:01 PM
To: Luke Connolly
Cc: Kerri Heusler
Subject: FW: Public Comment response to City of Cupertino Draft Housing Element Follow Up Flag: Follow up
Flag Status: Flagged
Hi Luke,
Forwarding your way from the Housing inbox:

Cyrah Caburian
Administrative Assistant
Community Development
[email protected]
(408) 777-1374
From: J Shearin
Sent: Tuesday, December 20, 2022 11:43 AM
To: Housing <[email protected]>
Subject: Public Comment response to City of Cupertino Draft Housing Element CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Honorable Cupertino City Council, Planning Commissioners, and Planning Staff:

I write today in response to the draft Housing Element for our city. I see several areas of concern in this draft, including that it is clearly not ready for public review. The draft includes many areas of cross-outs and red highlighting which is puzzling for a draft ready to be shared with the public. It is not clear if staff plans to update these areas further or why the older information was included. In B1-8, cut and pasted information was not updated, as the city name listed is “Larkspur” instead of Cupertino.

The greatest concern I have with this draft is in the overall process to create the Housing Element, especially the required community outreach to reach the Housing Element goals. The Housing Element lists several forms of community outreach including surveys, Community Workshops, and online mapping. Unfortunately, these community outreach actions did not drive the final Cupertino Housing Element to (per AFFH), “address significant disparities in housing needs and in access to opportunity.” The Community Workshops were listening sessions, wherein those who most need housing (renters, students, young adults, the unhoused) had a chance to tell their stories for other community members to greater understand their needs. Though on the surface these sessions appeared to bring marginalized viewpoints into the process, in practice the input did not influence the final Housing Element. Stated needs from these underserved communities were not incorporated when choosing locations, densities, or heights of the new housing sites.

One of the Cupertino Housing Element Strategy Team members, all of whom are Single-Family Homeowners (SFHO) and proponents of the group Better Cupertino, a group known for its anti-growth stance, led the site determination sessions. The input from the public at the meetings came overwhelmingly from SFHO and those who are longtime residents (generally 20 years+), especially those who speak often at City Council meetings. 577
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2 The Housing Site meetings did not focus on the unmet housing needs of those wishing or struggling to live in Cupertino, but instead centered the needs and wants of those who can already afford to live here.

Furthermore, input from the online survey also skewed toward homeowners. 68% of survey respondents own their own home, while the vast majority of respondents (77%) live in single family homes. 94% of people who answered the survey already live in Cupertino. The output from this survey clearly does not capture those underserved by the current housing situation in Cupertino. Using it to guide the ultimate Housing Element plan for Cupertino will naturally result in building housing where current homeowners want it, instead of where it could most benefit those who need it.

One further overall concern regarding the Housing Element is the reliance on “pipeline” projects to fulfill Cupertino’s share of the regional housing need. One of these projects, the Hamptons, has had an approved plan to expand their current apartment complex for over six years but has yet to take any steps toward doing so. It would be surprising if they did build the expansion as doing so would be a loss of all income from current tenants during a long construction phase. A bigger concern for the community is that it would remove that housing with the displacement of those tenants during that period. This displacement would cause a further housing shortage (albeit temporary) for Cupertino—the exact opposite of what the Housing Element is supposed to address.

Thank you for considering my feedback during this Public Comment period. I wish you success in crafting a Housing Element that addresses the needs of all residents, current and future.

Sincerely,
Jennifer Shearin
Cupertino resident
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1 Cyrah Caburian
From: Housing
Sent: Tuesday, December 20, 2022 4:31 PM
To: Luke Connolly
Subject: FW: Notice of Release: Draft Housing Element
Follow Up Flag: Follow up
Flag Status: Flagged
From Housing inbox:

Cyrah Caburian
Administrative Assistant
Community Development
[email protected]
(408) 777-1374
From: S B
Sent: Saturday, November 26, 2022 10:38 AM
To: Cupertino City Manager's Office <[email protected]>; Housing <[email protected]> Subject: Fwd: Notice of Release: Draft Housing Element
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

To the city manager and the housing department ,
thank you for giving us access to this document. Glad it was out out for review, before submitting it.

A few quick comments on this document, (1) there is no easy way to navigate through the document. It feels like the good old days when you had to print everything. Most consultants know to put links into the document, I’m surprised this came through without the links.
(2) Also there are places where it says city to fill out, not sure how much time the city had to review this document, but those paragraphs have not been filled out.

I was wondering if a final review of this document was completed before it was put out for review to the residents Regards
Sashi
Sent from my iPhone
Begin forwarded message:

From: City of Cupertino <[email protected]> Date: November 18, 2022 at 1:45:37 PM PST
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1 Cyrah Caburian
From: Housing
Sent: Tuesday, December 20, 2022 4:32 PM
To: Luke Connolly
Subject: FW: Housing Element Review
Follow Up Flag: Follow up
Flag Status: Flagged
From Housing inbox:

Cyrah Caburian
Administrative Assistant
Community Development
[email protected]
(408) 777-1374
-----Original Message-----
From: Jenny Griffin
Sent: Tuesday, November 29, 2022 3:15 PM
To: Housing <[email protected]>
Cc:

Subject: Housing Element Review
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Planning for the Housing Element,
The RHNA numbers given to the cities in California were calculated incorrectly and are too high To begin with. These numbers used created error that was propagated along the whole Housing Element process resulting in massive amounts of statistical error. These RHNA numbers should never Have even been used in the first place. The whole process was flawed from the beginning and Should have been halted immediately. The whole process for this cycle is flawed and highly questionable.

Thank you.

Sincerely,
Jennifer Griffin
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1 Cyrah Caburian
From: Housing
Sent: Tuesday, December 20, 2022 4:33 PM
To: Luke Connolly
Subject: FW: Housing Element resident input by Yuko Shima Follow Up Flag: Follow up
Flag Status: Flagged
From Housing inbox:

Cyrah Caburian
Administrative Assistant
Community Development
[email protected]
(408) 777-1374
From: Yuko Shima
Sent: Tuesday, December 20, 2022 2:20 PM
To: Housing <[email protected]>
Subject: Housing Element resident input by Yuko Shima
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

The City of Cupertino
Dear Mr. Luke Connolly
Acting Community Development Director
Hi, I'm Yuko Shima, a Cupertino resident.

I would like to request an addition to the housing element draft.

Today is 12/20/2022 Monday.

I would like to request a housing for 12 beds for homeless individuals in Cupertino.

Thank you so much!
Yuko Shima
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1 Cyrah Caburian
From: Housing
Sent: Tuesday, December 20, 2022 4:33 PM
To: Luke Connolly
Subject: FW: Housing Element resident input by Yuko Shima Follow Up Flag: Follow up
Flag Status: Flagged
From Housing inbox:

Cyrah Caburian
Administrative Assistant
Community Development
[email protected]
(408) 777-1374
From: Yuko Shima
Sent: Tuesday, December 20, 2022 2:20 PM
To: Housing <[email protected]>
Subject: Housing Element resident input by Yuko Shima
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

The City of Cupertino
Dear Mr. Luke Connolly
Acting Community Development Director
Hi, I'm Yuko Shima, a Cupertino resident.

I would like to request an addition to the housing element draft.

Today is 12/20/2022 Monday.

I would like to request a housing for 12 beds for homeless individuals in Cupertino.

Thank you so much!
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2 Yuko Shima
President
God's Promise
God's Promise | Humanitarian Outreach
| Cupertino
God's Promise is a California nonprofit organization
providing humanitarian assistance to those living on the street by offering temporary shelter, 24/7-bathroom,
warm shower, meals, clothing, a daytime resting place,
transportation services, and other services to save lives and restore lives.
www.godspromisehumanitarianoutreach.org
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1 Cyrah Caburian
From: Housing
Sent: Tuesday, December 20, 2022 4:34 PM
To: Luke Connolly
Subject: FW: Housing Element resident input by Yuko Shima Follow Up Flag: Follow up
Flag Status: Flagged
From Housing inbox:

Cyrah Caburian
Administrative Assistant
Community Development
[email protected]
(408) 777-1374
From: Yuko Shima
Sent: Tuesday, December 20, 2022 2:27 PM
To: Housing <[email protected]>
Subject: Re: Housing Element resident input by Yuko Shima CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

The City of Cupertino
Dear Mr. Luke Connolly
Acting Community Development Director
Hi, I'm Yuko Shima.

A local homeless housing shelter is necessary.

I have seen and talked to at least five homeless individuals near around Target and Marina grocery store in Cupertino.

One person is alcoholic and sleeping on the ground with beer cans on the ground. He is a white man, his hand is black.
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2 Another is probably a homeless veteran who never took a shower for more than 2 months at least. He said he wants to trim his beard but he refused to take a ride to a San Jose shelter. He was willing to go to a place if if was local. He could only mumble. He could not speak fluently.

There is another who he says he can't sleep housed after his father passed away in his house. So he keeps himself sleeping under the sky.

All three people need medical care.

And I hope city will take part in saving lives of individuals like them. It is better to be humane than cold.

Yuko Shima
President
God's Promise
God's Promise | Humanitarian Outreach
| Cupertino
God's Promise is a California nonprofit organization
providing humanitarian assistance to those living on the street by offering temporary shelter, 24/7-bathroom,
warm shower, meals, clothing, a daytime resting place,
transportation services, and other services to save lives and restore lives.
www.godspromisehumanitarianoutreach.org
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1 Cyrah Caburian
From: Housing
Sent: Wednesday, December 21, 2022 8:57 AM
To: Luke Connolly
Subject: FW: Feedback on Draft Housing Element
Follow Up Flag: Follow up
Flag Status: Flagged
From Housing inbox:

Cyrah Caburian
Administrative Assistant
Community Development
[email protected]
(408) 777-1374
From: Randal Salvatore
Sent: Tuesday, December 20, 2022 4:52 PM
To: Housing <[email protected]>
Subject: Feedback on Draft Housing Element
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Cupertino has an overcrowding problem, not a housing problem. A government should not and cannot force residents to downsize. This solution of adding more and more housing is not a scalable solution. Eventually, homes will be the size of jail cells.

Continuing to add more and more homes and apartments vastly lowers the quality of life. The local crime rate rises directly with density. More law enforcement will be needed, and more severe law enforcement events will result. More water will be needed, yet the government is forcing water reductions per person even when the same number of people live in the city.

Traffic will further reduce the standard of living. These cute “solutions” that cities have tried by shutting down roads are now found to make people drive double the distance to get from point A to point B (compared to how they would get there when the roads were open). Schools are becoming over-burdened, parks are overcrowded and less desirable. Safety is degraded. Cleanliness of streets declines.

If I wanted to live in a dirty, overcrowded, unsafe, environment, I would move to San Francisco, but this is exactly the reason I don’t live in San Francisco. Please, don’t force Cupertino residents to suffer the uncomfortable, overcrowded, high-traffic, high-crime, dirty environment as we have seen in the many already existing, overcrowded cities. 589
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2 Sincerely,
Randal Salvatore, Ph.D.

Cupertino resident
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1 Cyrah Caburian
From: Housing
Sent: Wednesday, December 21, 2022 8:57 AM
To: Luke Connolly
Subject: FW: Housing Element Comments
Follow Up Flag: Follow up
Flag Status: Flagged
From Housing inbox:

Cyrah Caburian
Administrative Assistant
Community Development
[email protected]
(408) 777-1374
From: Sashi Begur
Sent: Tuesday, December 20, 2022 4:54 PM
To: Cupertino City Manager's Office <[email protected]>; Housing <[email protected]> Cc: City Clerk <[email protected]>; Kitty Moore <[email protected]>; Liang Chao <[email protected]>
Subject: Housing Element Comments
To the city manager and Acting Director of Community Development, The following is my feedback on the document
Some positive points about the document:
(1) Very pleased to see that the pipeline projects have been taken into consideration. City council’s jurisdiction is only up to approving projects, they have no control over the timeline for building these projects. Not taking the pipeline projects into consideration does not make any sense, very happy to see that this has been considered. (2) It is very nice to see that the projects suggested are distributed all over the city, often when development occurs only on one side of the city, the amenities and services such as parks and schools become compromised. We don't want to create multiple Cupertinos, we want to have one city and one city that has to bear the burden of the RHNA requirements, even if that happens to be in my backyard. (3) Last but not the least, I am very glad we have the opportunity to review this document, seeking your customer's (Cupertino’s residents specifically) input is very critical and kudos to you for doing this, A few ideas that we may consider with other cities in our county, to improve the buffer for the middle income level. (1) Apply a vacancy tax. This way the much needed housing is used up as it should be, and not have rents and house prices rising while apartments and homes are staying vacant. Especially those that qualify for the middle income category. Anyone in the middle income category can benefit from this. (2) Apartment owners receive a tax rebate or some other incentive so that they offer 10%, of the available apartments to middle income essential service personnel that work in each city, at a discounted rate.

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2 staff. I do not believe that school district administrative staff qualify for this. Also, the assumption here is that the household income falls into the category of middle income level, and qualification is not based upon an individual’s income if married, or not based upon occupation.
(3) For middle income essential services personnel, like teachers, police and fireman, an option of rent to buy with some incentives to sellers, must also be considered. Also, the assumption here is that the household income falls into the category of middle income level, and qualification is not based upon an individual’s income if married, or not based upon occupation.

Now the changes to be made to the document:

Chapter 4:
(1) Page 4-1 Section 4.2, Under the paragraph “RHNA Summary”, second sentence has a typo there are only four income categories not five as stated in the document (2) Page 4-2 Table 4-2 There is no purpose to unless it is filled out, given the tight schedule, perhaps it makes more sense to remove the table unless the information is readily available (3) Page 4-3 Table 4-3 Add a NOTE to make it clear that the ADUs are not accounted for in the total. So, if the ADUs are added, the percentage is much better than 117%.

Appendix B4
(1) Section B4.1 Introduction is the same as the introduction for Chapter 4, with the exception that the words RHNA and HCD have been expanded. Since this report is for HCD, I think this whole section must be removed, with the Appendix starting at the Site Inventory. It is referenced in Chapter 4 that the site selection will be provided in Appendix B, so the appendix can start at the site selection and repeating everything serves no purpose (2) Section B4.2 Page B4-3 In the section titled “Overview of Selected Sites”, The 3rd paragraph, bullet (4) is unnecessary, this is not about schools, we are not building housing for filling the schools, we are building housing because HCD believes we need it. So, there is no need for this sentence.

This sentence is copied below for your reference:
“(4) The housing Element should include new housing sites that could support the City’s public schools and help counteract declining enrollment trends that are occurring city and county wide."

(3) Page B4-4 3rd Paragraph on the page This paragraph is incorrect and therefore needs to be removed. The first two lines are the controversial statements. The reasons for it being unnecessary are the following:
(a) HCD has not stipulated that the housing element cannot consist of pipeline units. (b) HCD has not stipulated that the Very Low Income, Low income and Moderate Income RHNA requirements have to be met through pipeline projects either.
(c) Also the city meets all the RHNA requirements in all categories. For the Moderate income level we do not meet the HCD “recommended” buffer. The HCD requirements is 755 and we have allocated 769 as Moderate Income Level units.

This is not including the 60 ADU units, which would make our allotted number increase to 829. (d) the obvious grammatical error in the first sentence The paragraph is copied below for your reference:
“Due to the significant amount of pipeline and units, the City is already exceeding its RHNA for the Low and abovemoderate income categories for the 2023-2031 planning period. The city, however, was unable to meet its Very Low and moderate income RHNA requirements through the pipeline projects. Additionally, HCD recommends a “buffer” of between 15-30% additional units be included in the sites inventory for each of the below market rate income categories ( Very low, Low and Moderate incomes) in accordance with the State “No Net loss” Law.

(4) Page B4-5 the paragraph under the Figure B4-1 is not relevant to the Figure, nor does it contain any information that makes sense. This paragraph would also be removed for the following reasons:
(a) The three areas listed in the paragraph are not shown in the picture. 592
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3 (b) the number provided are incorrect - Stelling gateway/homestead should be 339 not 440, south de Anza should be 471 not 462.
(c) Providing a statistic of 71% of the 2090 recommend units, is unnecessary, it is not clear where did the 2090 recommended units come from?

(5) Page B4-91 the ADUs have not been added into the totals, a NOTE needs to be added to clarify that should these ADUs be added the percentage would be much better than 117% regards
Sashi
Sashi Begur
Parks and Recration Commission Vice Chair
[email protected]
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1 Cyrah Caburian
From: Housing
Sent: Wednesday, December 21, 2022 8:57 AM
To: Luke Connolly
Subject: FW: Housing Element Comments
Follow Up Flag: Follow up
Flag Status: Flagged
From Housing inbox:

Cyrah Caburian
Administrative Assistant
Community Development
[email protected]
(408) 777-1374
From: S B
Sent: Tuesday, December 20, 2022 4:59 PM
To: Cupertino City Manager's Office <[email protected]>; Housing <[email protected]> Cc: City Clerk <[email protected]>; Kitty Moore <[email protected]>; Liang Chao <[email protected]>
Subject: Re: Housing Element Comments
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

To the city manager and Acting Director of Community Development, The following is my feedback on the document
Some positive points about the document:
(1) Very pleased to see that the pipeline projects have been taken into consideration. City council’s jurisdiction is only up to approving projects, they have no control over the timeline for building these projects. Not taking the pipeline projects into consideration does not make any sense, very happy to see that this has been considered. (2) It is very nice to see that the projects suggested are distributed all over the city, often when development occurs only on one side of the city, the amenities and services such as parks and schools become compromised. We don't want to create multiple Cupertinos, we want to have one city and one city that has to bear the burden of the RHNA requirements, even if that happens to be in my backyard. (3) Last but not the least, I am very glad we have the opportunity to review this document, seeking your customer's (Cupertino’s residents specifically) input is very critical and kudos to you for doing this, A few ideas that we may consider with other cities in our county, to improve the buffer for the middle income level. 594
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2 (1) Apply a vacancy tax. This way the much needed housing is used up as it should be, and not have rents and house prices rising while apartments and homes are staying vacant. Especially those that qualify for the middle income category. Anyone in the middle income category can benefit from this. (2) Apartment owners receive a tax rebate or some other incentive so that they offer 10%, of the available apartments to middle income essential service personnel that work in each city, at a discounted rate.

My definition of middle income essential services personnel, are teachers, firefighters, police and some essential city staff. I do not believe that school district administrative staff qualify for this. Also, the assumption here is that the household income falls into the category of middle income level, and qualification is not based upon an individual’s income if married, or not based upon occupation.
(3) For middle income essential services personnel, like teachers, police and fireman, an option of rent to buy with some incentives to sellers, must also be considered. Also, the assumption here is that the household income falls into the category of middle income level, and qualification is not based upon an individual’s income if married, or not based upon occupation.

Now the changes to be made to the document:

Chapter 4:
(1) Page 4-1 Section 4.2, Under the paragraph “RHNA Summary”, second sentence has a typo there are only four income categories not five as stated in the document (2) Page 4-2 Table 4-2 There is no purpose to unless it is filled out, given the tight schedule, perhaps it makes more sense to remove the table unless the information is readily available (3) Page 4-3 Table 4-3 Add a NOTE to make it clear that the ADUs are not accounted for in the total. So, if the ADUs are added, the percentage is much better than 117%.

Appendix B4
(1) Section B4.1 Introduction is the same as the introduction for Chapter 4, with the exception that the words RHNA and HCD have been expanded. Since this report is for HCD, I think this whole section must be removed, with the Appendix starting at the Site Inventory. It is referenced in Chapter 4 that the site selection will be provided in Appendix B, so the appendix can start at the site selection and repeating everything serves no purpose (2) Section B4.2 Page B4-3 In the section titled “Overview of Selected Sites”, The 3rd paragraph, bullet (4) is unnecessary, this is not about schools, we are not building housing for filling the schools, we are building housing because HCD believes we need it. So, there is no need for this sentence.

This sentence is copied below for your reference:
“(4) The housing Element should include new housing sites that could support the City’s public schools and help counteract declining enrollment trends that are occurring city and county wide."

(3) Page B4-4 3rd Paragraph on the page This paragraph is incorrect and therefore needs to be removed. The first two lines are the controversial statements. The reasons for it being unnecessary are the following:
(a) HCD has not stipulated that the housing element cannot consist of pipeline units. (b) HCD has not stipulated that the Very Low Income, Low income and Moderate Income RHNA requirements have to be met through pipeline projects either.
(c) Also the city meets all the RHNA requirements in all categories. For the Moderate income level we do not meet the HCD “recommended” buffer. The HCD requirements is 755 and we have allocated 769 as Moderate Income Level units.

This is not including the 60 ADU units, which would make our allotted number increase to 829. (d) the obvious grammatical error in the first sentence The paragraph is copied below for your reference:
“Due to the significant amount of pipeline and units, the City is already exceeding its RHNA for the Low and abovemoderate income categories for the 2023-2031 planning period. The city, however, was unable to meet its Very Low and moderate income RHNA requirements through the pipeline projects. Additionally, HCD recommends a “buffer” of 595
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3 between 15-30% additional units be included in the sites inventory for each of the below market rate income categories ( Very low, Low and Moderate incomes) in accordance with the State “No Net loss” Law.

(4) Page B4-5 the paragraph under the Figure B4-1 is not relevant to the Figure, nor does it contain any information that makes sense. This paragraph would also be removed for the following reasons:
(a) The three areas listed in the paragraph are not shown in the picture. (b) the number provided are incorrect - Stelling gateway/homestead should be 339 not 440, south de Anza should be 471 not 462.
(c) Providing a statistic of 71% of the 2090 recommend units, is unnecessary, it is not clear where did the 2090 recommended units come from?

(5) Page B4-91 the ADUs have not been added into the totals, a NOTE needs to be added to clarify that should these ADUs be added the percentage would be much better than 117% regards
Sashi
PS; to my feedback you received from an earlier Email, it was accidentally sent from my Cupertino email. I am providing this input as a Cupertino resident and not in any other capacity. City Clerk please make a note of it. 596
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1 Cyrah Caburian
From: Peggy Griffin
Sent: Wednesday, December 21, 2022 9:58 PM
To: Luke Connolly; Housing
Cc: City Clerk
Subject: Comments for Cupertino's Draft Housing Element 6th Cycle Attachments: PG_Comments_for_HE_Draft.pdf
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Date: Wednesday, Dec. 21, 2022
Dear Housing Department and Acting Director Luke Connolly, Thank you for all the hard work you have and will continue putting in on this Housing Element project.

Below and attached are my comments on Cupertino’s Draft Housing Element document. I have distinguished editing errors (in BLUE) such as inaccurate numbers so they can easily be spotted and corrected.

Sincerely,
Peggy Griffin
Comments for
Cupertino Housing Element Draft, dated Oct. 10, 2022
By Peggy Griffin
BLUE = simple edit/error corrections
General Comments
1) I am pleased to see the city is using the pipeline projects towards the City’s RHNA total requirements as HCD has said can be done.
2) This site inventory list distributes housing across the city which distributes the access to amenities, reduces segregation and helps our schools with low enrollment BUT it does not go far enough. The Bubb Road area is ideal for housing. It is within walking distance of De Anza College and K-12 schools. It has easy access to Hwy 85 and bus lines.

Chapter 1.0 Introduction

ACTION: Add something like…”It should be noted that during the 2015-2023 planning period, Cupertino has approved projects on all 5 housing element sites.”
REASON: It’s significant that Cupertino has approved all the Priority Housing Element sites it identified for the 2015- 2023 planning period. It should be mentioned.
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2

ACTION: Change “Appendix 2” to “Appendix B2”
REASON: To match appendix name

ACTION: Add an explanation of the population of Cupertino to give the reader an overview of what we have before going into details.. Add this Table 15 from the ABAG/MTC document.

ACTION: DELETE it.

REASON: Footnote 6 and the second sentence in the bullet says the dissimilarity index is not reliable which means what they stated is unreliable so don’t use it.

ACTION: DELETE this phrase “…and the overall lack of support for new affordable housing development in the community”
REASON: It’s not substantiated.

ACTION: Add at the end of paragraph 1 the amendments that have been made to the General Plan since 2014.

REASON: To show that the City does try to keep its General Plan up to date.

Bullets 2, 3 and 4
ACTION: Insert the bullet list of outreach efforts.

REASON: There’s a reminder to do so but not highlighted in YELLOW.

ACTION: Replace Appendix F with Appendix B6
REASON: There is no Appendix F.

ACTION: Update current date in 2 places
REASON: There’s a reminder to do so
Chapter 2.0 Goals, Policies and Strategies
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3 General comments on this chapter:
1) Strategies should be added to all policies that don’t have any strategies. 2) Add a policy and strategies to significantly increase housing for people with developmental disabilities because they are at significant risk of losing housing and care. 85% of developmentally disabled persons in Cupertino live with family/guardians.
3) Add a policy and strategies to help female-head of households. 4) Add a policy and strategies to ensure that housing is not placed on contaminated land without being remediated. a) Sites that were contaminated but mitigated/cleaned-up and closed for commercial use levels need those levels to be re-examined when the land use changes to include residential uses. b) Any site that is next to (adjacent to) a current or past gas station or dry cleaner needs to be tested because contaminants are known to flow to adjacent sites.
c) Any site downhill from a known contaminated site (open or closed) needs to be tested. i)

ACTION: Add strategies for how to accomplish this policy.

ACTION:
1) Expand on this old Policy HE-1.3 by adding strategies to encourage duplexes, tri-plexes and quad-plexes. With careful design standards, they can co-exist in a neighborhood without being noticeably different than single family homes.
2) Consider a strategy to prevent downsizing. There are some sites in Cupertino that are zoned R1 but they have multiple units (duplexes?) on them. If these sites get redeveloped, they should, at a minimum, provide the same number of units that currently exist.

discretionary action by the City
ACTION: Delete or instead replace it with the requirement that the City update the land use, zoning and minimum densities of the sites within x amount of time as required by law.

REASONS:
1) The new designated land use, zoning and density of each site is already specified in Table B4-3 Vacant, Partially Vacant, and Available Sites. These new designations already allow the densities specified. Just implement it! 2) (Page B-68, PDF 389 of 534 of the current General Plan) In the previous RHNA cycle, the term “Priority Housing Sites” was given to selected sites in the 5th HE cycle allowing them to have the density specified for the 5th RHNA cycle because a majority were already zoned P. “A majority of the P districts are governed by a Specific or Conceptual Plan which provides additional guidance to facilitate development review and provide more certainty regarding community expectations.”
3) The majority of the new sites are NOT zoned P but have residential zoning with expectations. 4) The last phrase “…allowable by right without need for rezoning or any other discretionary action on the part of the City” basically allows anything to be built which conflicts with having objective standards. 5) Also, references to 3a, 3c, 5c and 5d don’t exist in Table B4-3

ACTION: Correct the unit counts.

REASON: Total units does not add up to 4,588. Above moderate-income units should be 1953.

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4 ACTION: Modify Part 1, delete Part 2, modify Part 3
There are 3 parts to Strategy HE-1.3.2 but they are buried in the paragraph.

PART 1 of HE-1.3.2 - The City WILL review and revise its Second Dwelling Unit Ordinance to ensure consistency with state law.

ACTION: Modify sentence to be “The City will review and if needed revise its…” REASON: No need to update it if it’s compliant. Save the City money! PART 2 of HE-1.3.2 - [The City WILL] ...institute a forgivable loan program for homeowners that construct accessory dwelling units (ADUs) that are held affordable to lower-income households for a minimum period of 15 years.

ACTION: Delete Part 2
REASONS:
1) There is no justification in the analysis found in Appendix B1 or B2 to substantiate this requirement. In fact, a) Page B3-17 Availability of financing states that there are “no mortgage-deficient areas and no identifiable underserved groups in need of financing assistance.”
2) Also, there is a financial assistance program currently being developed by Housing Trust Silicon Valley Small Homes, Big Impact ADU Program that will “consist of a planning grant and a construction loan.” The city should not duplicate efforts.
3) Use the money toward permanent affordable housing. Also, public funds for loans should not be spent to increase the value of a private property owner through the use of loan forgiveness! 15 years to forgive a loan is nothing! PART 3 of HE-1.3.2 – Update of the Second Dwelling Unit Ordinance should also include a program to streamline the ADU review and production process as part of the City FY 2023-24 work program.

ACTION: Delete the phrase “…as part of the City FY 2023-24 work program.” REASONS:
1) The City needs to decide when its best to do this.
2) A streamlined program was part of the FY 2020-21 work program. 3) The City already has pre-approved ADU Plan sets to expedite the permit process that offers the fastest, lowest-cost permit process.
4) Since 2021 building permits for 41 ADUs have been issued. That’s significant! Reference: Page 471, Table B5-1 Overview of Adopted Programs, HE-1.3.2

burden on the development of affordable housing.” 2-6
ACTION: Remove this phrase.

REASONS:
1) The objective standards should be written to encourage all housing, not just affordable housing. Remove the phrase.

ACTION: Delete this bullet. Contradicts Strategy HE-1.3.4 Objective Development Standards.

REASONS
1) This bulleted item is under the strategy statement for “Objective Development Standards”! How can you have objective development standards if they are flexible? It’s a contradiction.

Cupertino Zoning Code Section 19.89.30 (C) so that Subsection Cupertino Zoning Code Section 19.80.030 (E) applies to all sites zone for Planned Development, not just mixed-use sites. 600
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5 ACTION: Fix reference to 19.80.030 (E) to be 19.80.030 (E2) REASONS:
1) The entire 19.80.030 (E) does not apply.

ACTION: Delete
REASONS:
1) Already done.

ACTION: Replace with several strategies
1) City will periodically do nexus studies to insure it’s fees are in line. 2) City should consider lowering fees 5% for each 5% additional BMR units. (percentage is just an example) 3) City should consider lowering fees 5% for every 5 additional years all BMR units remain BMR.

REASONS: We need affordable housing not luxury market rate and above housing units!

ACTION: Clarify what exactly this means. Add strategies to get there.

ACTION: Add strategies to get there.

ACTION REQUESTED: Change the bullets to be numbered a-g.

REASONS:
1) So reference in 2nd bullet makes sense.

1) ACTION: Change “The City will partner with…” to “The City will explore partnerships with…” a) REASON: Forcing the City to partner with a developer puts the City at a negotiating disadvantage. The City needs flexibility to pick and choose.
2) ACTION: Delete “infill lots” and “other green fields” a) REASON: As density increases, people need open space.

ACTION REQUESTED: Correct format to match our existing HE chapter page H-28 REASONS: The first 2 bullets are missing. They’ve been sucked into the paragraph by mistake.

ACTION REQUESTED: Delete bullet “Flexible development standards” REASONS: Conflicts with HE-1.3.4 Objective Development Standards

ACTION REQUESTED: Delete completely
REASONS:
1) Redundant –
a) Current GP Chapter “Environmental Resources and Sustainability” under Goal ES-1 “Ensure a sustainable future for the city of Cupertino”, has
i) Policy ES-1.1 Principles of Sustainability
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6 ii) Strategy ES-1.1.1 Climate Action Plan
b) Current GP Chapter “Environmental Resources and Sustainability” under Goal ES-2 “Promote Conservation of Energy Resources”, has
i) Policy ES-2.1 Conservation and Efficient Use of Energy Resources ii) Strategy: ES-2.1.4 Incentive Program for developers iii) Strategy ES-2.1.5 Urban Forest
iv) Strategy ES-2.1.6 Alternate Energy Sources
c) Current GP Chapter “Environmental Resources and Sustainability” under Goal ES-3 “Improve Building Efficiency and Energy Conservation” has Strategy ES-3.1.1 referring to the City’s Green Building ordinance. 2) Not consistent with General Plan Policy LU-5.2

ACTIONS:
1) Make all it’s text RED because it’s a new policy.
2) Add strategies to get there.

ACTIONS: Add strategies to get there.

Chapter 3.0 Overview of Housing Needs and Constraints
Pages with missing figures and tables:
1) Page 3-3, Insert Figure IV-11
2) Page 3-7, Insert Figures II-25 through II-28
3) Page 3-7, Insert Figure I-30, Figure IV-32, Figure IV-33 4) Page 3-8, Insert Figure IV-28
5) Page 3-9, Insert Figure II-166, Figure II-20, Figure II-19 6) Page 3-11, Insert Figure II-13, Figure II-14, Figure III-17 through III-21 7) Page 3-12, Insert Figures IV-21 through IV-24

Line 4: change Appendix B to B2
Line 6: change Appendix B, Part 3 to Appendix B3

ACTION: Clarify this entire statement…”except for Black/ African American applicants”

ACTION: Change 57.2 percent to 57.1
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7 REASONS: Refer to page 6, last bullet “Housing Type” of ABAG/MTC Housing Needs Data Report: Cupertino, dated 4-2- 2021

Reference: Page 50, last sentence of ABAG/MTC Housing Needs Data Report: Cupertino, dated 4-2-2021 ACTION: Add this sentence to the end of the last paragraph “Of these female-headed households, 18.8% of households with children fall below the Federal Poverty Line and 8.8% of households without children live in poverty.”
REASON: Female-headed households have a higher risk of being in poverty in Cupertino.

Reference: Page 54, of ABAG/MTC Housing Needs Data Report: Cupertino, dated 4-2-2021 ACTION: Add to end of last paragraph in this section the sentence below and accompanying table. “The most common living arrangement for individuals with disabilities in Cupertino is the home of parent /family /guardian.”
REASON: In Cupertino, 85% of people with developmental disabilities live with a parent, family member or guardian. As the family member/guardian age or become ill the disabled are at risk of loosing access to housing and care!

Reference: Page 58, last paragraph of ABAG/MTC Housing Needs Data Report: Cupertino, dated 4-2-2021 ACTION: Add a paragraph to the end of the section.
“In Cupertino, there were no reported students experiencing homelessness in the 2019-20 school year. Although by comparison, Santa Clara County has seen a 3.5% increase in the population of students experiencing homelessness since the 2016-17 school year.”

ACTION: Delete “In general”
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8 Appendix B1 Cupertino Fair Housing Assessment
ACTION: Change references to Larkspur to Cupertino everywhere.

Appendix B2 Housing Needs Assessment
Page B2-1 (PDF Page 295) section Summary of Key Facts, Race/Ethnicity ACTION: Present Cupertino’s race/ethnicity percentages in table format so it’s clearer. Use Table 15 from the ABAG/MTC document
Appendix B3 Housing Constraints
Page B3-2 (PDF Page 350), last sentence on this page
ACTION REQUESTED: Correct reference to Code Section 19.80.030 (E) to be 19.80.030 (E)(2) in the 2nd to last line on page.

REASON: All of section (E) should not apply to (C). It’s an error.

Page B3-16 (PDF Page 364), first bullet, last 2 sentences starting with “Rather than retool specific zoning districts…” ACTION: Delete these last 2 sentences
REASON: Land use and zoning are key to planning along with objective standards. To protect future residents there needs to be guidelines which are achieved through zoning. The act of re-zoning these sites will allow the city to achieve its RHNA and protect the future residents – a win-win.

Page B3-16 (PDF Page 364), 3rd bullet, (HOME Act, SB9)
ACTION: Replace this bullet with text mentioning the SB-9 ordinance the city has implemented.

Appendix B4 Vacant and Available Sites
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9 Reference: “Council Approved Sites and Units (09-14) – Revised Final” document which is the 6-page spreadsheet with heading “PC Recommended vs Council Authorized Sites Inventory (August 31, 2022).

LINK: https://ehq-production-us-california.s3.us-west1.amazonaws.com/ce600b9891daac78215aed2830012dca8e044d02/original/1663179819/b22eefacc4f5e288faed12075 67098c9 Council Approved Sites and Units %2809-14%29 - Revised Final.pdf?X-Amz-Algorithm=AWS4-HMACSHA256&X-Amz-Credential=AKIA4KKNQAKICO37GBEP%2F20221209%2Fus-west-1%2Fs3%2Faws4 request&X-AmzDate=20221209T004018Z&X-Amz-Expires=300&X-Amz-SignedHeaders=host&X-AmzSignature=a35390ee6b127a38888a452c407af879f8874507bd92900314bffc43efd9d19b Page B4-5 (PDF Page 377), Figure B4-1 Potential Sites Inventory Map ACTION: Use the Key Map IDs from Table B4-3 to identify the sites on the map.

REASON: The identifiers on the map don’t make sense.

Page B4-32 (PDF Page 404), South Blaney Site 11b Description section, line 5 ACTION: change “P(Res)” to “a combination of P(CG/Res) and P(Res)” REASON: it’s wrong. Does not match Council approved list.

Page B4-77 (PDF Page 449), Site 26a (Cupertino Village) Description section, line 4 ACTION: change “P(Res)” to “P(CG,Res) with increased density…” REASON: It’s wrong. Does not match Council approved list.

Page B4-86 (PDF Page 458), South Blaney Site 11b, 1st parcel APN 36937028 ACTION: change P(Res) to P(CG/Res)
REASON: It’s wrong. Does not match Council approved list.

Page B4-90 (PDF Page 462), North Vallco Park (Cupertino Village) all 6 parcels for Site 26a ACTION: change P(Res) to P(CG/Res) for all 6 parcels
REASON: New zoning is wrong. Does not match Council approved list.

Appendix B5 Review of Previous Housing Element
ACTION: Change all references to “Town” to “City”.
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1 Cyrah Caburian
From:

Sent: Thursday, December 22, 2022 11:34 AM
To: Housing
Subject: Draft HE Comments
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

After seeing many other cities 1st draft housing elements, this submission feels like a half hearted attempt to gain a place in line with HCD. The consultant has provided a lot of the required historical information like AFFH, etc…but the detail about how the city is going to implement this plan seems to be really lacking in detail. The polices are vague (when compared to other cities) and the implementation of those polices are too long. Cupertino is going to miss the HCD deadline and therefore will only have one year (not three) to implement this housing element along with the updated zoning & GP to match it. I did not see future infrastructure comments, etc… Unfortunately, this reads like a housing element from a consultant that was fired and is giving it the old “college try”. I think the City should prepare of a long and lengthy comment letter from HCD.

The one item that was most disappointing, is there are pagination errors in how the sites inventory is presented. I just looks like a half hearted effort by a consultant that doesn’t really take any pride in what and how they present in their information. This is going to be a reflection on the City, not the consultant, who has already been terminated. The City has done a good job…staff has done great. I think it’s unfair that the City will bear the burden of a draft HE that seems as if it was put together in haste.

Below are specific items of how the information was presented in the draft that should be easy fixes.

Pg 374 has yellow highlight that appears to be missing information Pg 384: Site 6d is not called out on the map of yellow sites Pg 398: The map pagination doesn’t fit here…the map should be on page 398, followed by Site 7a on page 399. The map that is currently on page 399 has two sites (7a & 7b). Site 7b doesn’t have a summary page and is not listed.

Pg 409: Why is there a blank page in between the map & the site summary? Pg 411: The map pagination doesn’t fit here…the map should be on page 411, followed by Site 15a on page 412.

Pg 413: Why is there a blank page in between the summary of sites? Pg 415: The map pagination doesn’t fit here…the map should be on page 415, followed by Site 16a on page 416.

Pg 417: Why is there a blank page in between the summary of sites? Pg 419: The map pagination doesn’t fit here…the map should be on page 419, followed by Site 18c on page 420.

Pg 424: The map pagination doesn’t fit here…the map should be on page 424, followed by Site 19a on page 425.

Pg 431 & Pg 433: Why are there blank pages here?
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2 Pg 430: There are two parts to the S. De Anza Blvd Special Area with a lot of sites. There are maps on pages 430 and 431.

These should be split out and the map on page 430, should be followed by the summary pages of those sites from page 430. Then followed by the map for “Part 2” and those summary sites. This is really hard to follow.

Council, PC and Staff all did a great job with this complex process. The consultant…absolutely terrible.

Thank you for the opportunity to comment.

Scott
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1 Cyrah Caburian
From: Dan Marshall
Sent: Thursday, December 22, 2022 12:05 PM
To: Housing
Subject: Cupertino Resident comment about housing proposal CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

I have read through the housing proposal and I wanted to share a few thoughts.

For context, I've lived in Cupertino since 1985 in a 3,000 square foot home on a quarter acre lot, and it's been delightful. We raised two children and appreciated the excellent public schools. I love running in the hills.

Your policy recommendation covers many topics including low income housing, homeless housing, housing for critical service providers such as teachers, and simply more housing. I think that we can't boil the ocean. We need to focus on simply more housing in general, and ADU's for critical service providers. When we have more housing, in particular some of the other issues will resolve themselves. It appears that this is already happening in Sunnyvale and Mountain View.

Regarding more housing...

We need to replace houses similar to ours with zero lot line homes, 3 to 4 stories high with solar on top and parking below.

Architect Vishaan Chakrabarti describes how this sort of housing can meet humanities housing needs while reducing each families carbon footprint in this 12 minute podcast.

To accomplish this, it has to be economically feasible for a developer to purchase one or more single family homes similar to ours, and replace them with buildings similar to Mr Chakrabarti's recommendation. This is a tough hill to climb, but possible. Clearly it is easier in areas of Cupertino that have relatively lower priced homes. A developer's costs could be reduced if there is a simple set of plans for them to follow. If these plans are followed, permitting is super streamlined. Also, perhaps the city could offer low interest loans to developers. Transit could be a big attraction if reliable frequent services are provided in the areas which look attractive for these conversions because the home buyers may use the money they'd normally spend on car expenses, for mortgage or rent payments.

Several current tax policies make us reluctant to sell our house. Changing these policies would also make the transition much easier.

Regarding ADU's, we need a streamlined process. Imagine if...

I could schedule an appointment with an ADU consultant. They'd come out and look at our property, utilities, and situation. They'd make a recommendation regarding an ADU and tell us what it would cost, and how much rent we could expect to collect.

Perhaps there would be 3-4 prefab ADU units to choose from. The process of installing utilities and foundations would be streamlined. A truck carrying prefab ADU's would come down the street along with a crane which would lift the ADU and swing it into our back yard.
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1 Cyrah Caburian
From: k k
Sent: Thu M
To: Housing; Luke Connolly; City Clerk
Subject: Draft Housing Element comment ideas and suggestions CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

I have listed several proposals and recommendations to the draft housing element.

1. It is important to see that the city has distributed it’s priority housing element sites across the city as required. This provides equal access to amenities such as parks and helps our schools with declining enrollment BUT more sites on the west side are needed such as along Bubb Rd. Housing along Bubb Rd would be close to De Anza College, major transportation corridors (Hwy 85, Stevens Creek Blvd) and amenities. There needs to be more housing proposed on the West side of Cupertino.

2. Page 1-7, 2nd to last paragraph, line 4, “…and the overall lack of support for new affordable housing development in the community.” Is not substantiated! The lack of support is for huge office complexes that worsen the jobs-housing balance, not less affordable housing.

3. Page 2-9, HE-1.3.10 “Lower Fees for Multi-Family Housing Projects…Cupertino has development fees that are among the highest in the region.” I disagree with this statement. . Cupertino has done Nexus Studies to determine what are appropriate mitigation fees that will cover the actual costs to mitigate development project issues. If these fees are lowered, they should only apply to BMR housing projects and not market rate housing projects.

4. Page 2-14, HE-2.3.5 Please remove the reference to “green fields”. “Green Fields” refers to parks, school sites, land that has never had buildings on it. As the population density increases in our city, the need for open space increases to help with mental and physical health of our growing population as well as places to see the hills and view the sky.

5. Page 2-22, Strategy HE-4.1.3 says development should include green roofs – This Strategy should refer to our Climate Action Plan rather than try to dictate what is needed. Also our city building codes and certifications should be referenced rather than trying to specify exactly what is needed.

6. Several policies do not have any strategies listed to implement the policy. Examples include:
a. Policy HE-1.1
b. Policy HE-1.2
c. Policy HE-2.1
d. Policy HE-2.2
e. Policy HE-3.2

7. There are no goals regarding the health and safety of future housing residents. They need to be added including these:
a. Housing Element sites that were zoned non-residential WILL be reviewed to ensure that any closed GeoTracker or other cases that are closed are still closed when residential limits are applied to the contaminant levels.
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2 b. Housing Element sites on or adjacent to past or present dry cleaners or gas station sites WILL be examined for contaminants at the levels acceptable for residential use. c. All contaminant issues need to be mitigated prior to a building permit is issued.

Thank you for your consideration of these suggestions to improve the draft housing element.

Robert McKibbin

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1 Cyrah Caburian
From: Shree Dharasker
Sent: Friday, December 23, 2022 11:02 AM
To: Housing
Cc:

Subject: FW: Notice of Release: Draft Housing Element
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

The Santa Clara Valley Water District (Valley Water) has reviewed the Draft Housing Element for the City of Cupertino (City), and has the following comments:
1) Ensuring an adequate water supply to support existing and future development is one of the key priorities for Valley Water. To help achieve this common goal, Valley Water encourages the City of expand Policy HE-7.2, and related strategies, to include water supply as an important quality of life issue. Valley Water is available for coordination regarding water conservation efforts, updated water demand management opportunities, and understanding anticipated growth. 2) The City Housing Element lists proposed sites for redevelopment. Development plans should be consistent with Valley Water’s Guidelines and Standards for Land Use Near Streams. Valley Water strongly advocates for maximizing vegetated areas to enhance the riparian corridor by increasing setbacks from the existing creek top of bank to any hardscape, roadways, or parking areas associated with the development.
3) Valley Water has several facilities including creeks and pipelines within the City limits. In accordance with the Water Resources Protection Ordinance, an encroachment permit will be required for modification of Valley Water facilities and encroachment into Valley Water right of way. 4) Most new development and redevelopment is subject to stormwater quality requirements. Some of the methods used to meet these requirements, such as low impact development (LID), work by retaining stormwater on the site for infiltration, which supports natural groundwater recharge. However, other methods only work to improve the quality of stormwater prior to releasing it into the stormwater system.

To address the long-term cumulative impacts on natural groundwater recharge, the City should require new development and redevelopment proposals to include stormwater quality elements, such as LID that meet state standards, with onsite retention to maintain, and in some cases, increase natural groundwater recharge and protect groundwater quality
Please forward future environmental documents when available for public comment. If you have any questions or need further information, you can reach me by email at or by phone at Shree Dharasker
Associate Engineer Civil
Community Projects Review Unit
From: City of Cupertino <[email protected]> Sent: Friday, November 18, 2022 1:46 PM
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1 Cyrah Caburian
From: E. Poon
Sent: Thursday, December 22, 2022 11:59 PM
To: Housing
Subject: Comments on Housing Element - must provide sound insulation CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Hi,
In the Housing Element, there are a number of sites with proposed mid rises, 4 or 5 stories tall. Such mid-rises can be quite pleasant to live in. However, if there is not enough sound insulation between floors, the experience of living in such a building is stressful and not conducive to good neighborly relations.

We had an experience owning a top floor condo in a 4 story building in Cupertino. As there was not enough between floor sound proofing, the third floor resident was always complaining of footfall noise from our unit, even though we live and move quietly. The situation was worse when we moved out after seven years, and started renting our condo. As many rental families have children, who move around a lot more than adults, the complaint about footfall noise increased.

It was really embarrassing. Are we to tell our tenants that their children should not run about their own home, because the downstairs residents are disturbed? The best we could do was to ask the new tenants to introduce themselves to the downstairs residents as soon as they moved in, which does nothing to mitigate the noise, only to let the neighbors know we are all nice people.

In an HOA, there is not much the Board can do about such complaints. We are told to resolve the problem ourselves. After a series of complaints, we started to avoid our downstairs neighbors. When there is a fresh complaint, we rack our brains thinking how to respond. Eventually, we just ignored the complaints. It is a great pity that some condo complexes in a nice location like Cupertino do not have sound proofing between floors, which the builder can easily provide at the beginning of designing the building.

The builder should be responsible. What about the City? I wonder if the CA building code is too lax in this respect. We never had such experience of lack of sound insulation while we lived abroad.

This is an important aspect that should not be overlooked as more condo complexes are built. We do want residents to feel the condos are their permanent homes, not to get frustrated and disturbed just because the builder did not provide the best construction.

A two bedroom condo in Cupertino costs at least $1 million. Having paid such a high price, the residents deserve to have quality built condos, with adequate sound proofing between floors. I hope the City can make builders aware of this. The City can insist on between floor sound proofing even if the CA building code does not.

Regards,
E Poon
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1 Cyrah Caburian
From: Caryl Gorska
Sent: Friday, December 2, 2022 1:50 PM
To: Housing
Cc: City Council; City of Cupertino Planning Commission; HousingCommission; City Clerk Subject: A few corrections to Housing Element document
Attachments: CG_CupertinoHE_Draft_Comments.pdf; Untitled attachment 00019.htm Signed By: [email protected]
Hello,
I went through Appendix B4 (Vacant and Available Sites) and I found some small, easy-to-fix errors. I am attaching them as a pdf and also pasting them below.

Caryl Gorska
Cupertino
Growth for the sake of growth is the ideology of the cancer cell. — Edward Abbey

Appendix B4: Vacant and Available Sites

Summary: Comments are listed in page order. These are mostly errors of misplaced or omitted pages. Of substance:

1. Six of the net total units for sites do no match what the Council approved (see “PC Recommended vs. Council Authorized Sites Inventory (August 31, 2022)” chart (column title: “Authorized Council Tier 1 Totals”). These are highlighted in bold red.

2. I believe this appendix is meant to include only Tier 1 sites; there are couple of mentions of Tier 2 sites that should be removed. These are highlighted in bold blue.

Suggestion: On the individual site pages, it might be helpful to include other data such as total acreage, max. building height, etc.

Site 07b listed in TOC does not exist as a page. It is also the only Tier two site included, so it probably should just be removed from the TOC.

Site 01b net units approved by council is 7, not 6, per “PC Recommended vs. Council Authorized Sites Inventory (August 31, 2022)” chart

Map of Jollyman neighborhood does not include a label for Site 6d

Site 06c net units approved by council is 3, not 2, per “PC Recommended vs. Council Authorized Sites Inventory (August 31, 2022)”

Currently: 389 Site 7a — 390 Monta Vista North
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2 Should be: 389 Monta Vista North — 390 Site 7a

Site 7b shown on Neighborhood map is Tier 2, not Tier 1. Remove if you mean to show only Tier 1 sites.

Site 08a net units approved by council is 7, not 8, per “PC Recommended vs. Council Authorized Sites Inventory (August 31, 2022)”

Site 11a net units approved by council is 97, not 98, per “PC Recommended vs. Council Authorized Sites Inventory (August 31, 2022)”

Currently: 411 Site 15a — 412 Heart of the City Crossroads Should be: 411 Heart of the City Crossroads — 412 Site 15a

Pages 411 – 414 of pdf out of order:

Currently: 411 Site 15a – 412 Crossroads Special Area – 413 blank – 414 Site 15b Should be: 411 Crossroads Special Area — 412 Site 15a — 413-14 blank and Site 15b

Currently: 419 Site 18c – 420 East Special Area
Should be: 419 East Special Area — 420 Site 18c

Also, Site 18c has net 94 units approved by council, not 93

Move “Homestead Road Special Area” from pdf page 425 to page 423

Insert between pdf pages 427 and 428:
“Stelling Gateway — Special Area” neighborhood map is missing from both TOC and document

Net units approved by council is 324, not 323, per “PC Recommended vs. Council Authorized Sites Inventory (August 31, 2022)”

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1 Cyrah Caburian
From: Santosh Rao
Sent: Friday, December 23, 2022 11:37 AM
To: City Council; Cupertino City Manager's Office; Housing Subject: Housing element draft input.

CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear City Council, Housing commission and city staff,
Please kindly submit the existing 1st draft of the housing element AS IS NOW to the state in order to avoid late submission and the builders remedy penalties that come with a late submission.

Please do not delay submission. Let the city work on revisions following feedback from the state.

Please do not make Cupertino housing element resemble Emeryville housing element.

Cupertino is not Emeryville. We have our own unique culture.

Please keep in mind the slump coming in commercial real estate due to macro economic conditions. The rising interest rates is causing a housing and CRE slump. Office market has 20% vacancy in Bay Area right now. Companies are now operating in hybrid or remote mode forever. There is neither a demand for more office space nor a corresponding need for excess housing in Cuoertino to meet the needs of office that is yet to be built and likely will not be built.

Please submit the housing element draft now and avoid builders remedy.

Separately please work with Sandhill to understand their updated plans for Vallco. On this environment it is unlikely any developer wants to be building 2M sq ft of new office. If office space reduces housing ratios must be re-calculated.

Please also work with the state and county to communicate the lack of flexibility in the housing requirements allocated by state to factor in current remote and hybrid work after Covid as well as pullbacks due to the recession and rising rates.

Thank you for your action and keeping Cupertino culture alive and not turning it into Emeryville as requested by one of your public comment speakers during the last city council. We are not Emeryville. We did not elect you to turn Cupertino into Emeryville. Thank you for your service.

Thanks,
Santosh Rao
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2 Geoff Paulsen, MPA
Former chair, Cupertino Planning Commission
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1 Cyrah Caburian
From: Kai Stockwell
Sent: Friday, December 23, 2022 1:48 PM
To: Luke Connolly
Cc: Housing
Subject: The Rise Comments on Draft Cupertino 6th Cycle Housing Element Update Attachments: The Rise_ Letter to Cupertino re Draft Housing Element - 2022.12.23.docx CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Hi Luke,
The Rise team appreciates this opportunity to give feedback on the Cupertino's Draft Housing Element. Please see our comment letter attached.

Happy Holidays,
Kai
--
Kai Kamehiro Stockwell
Project Manager
Sand Hill Property Company
2600 El Camino Real, Suite 410
Palo Alto, CA 94306
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December 23, 2022

VIA E-MAIL
Luke Connolly
Acting Community Development Director
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
[email protected]
[email protected]
Re: Comments on Draft Cupertino 6th Cycle Housing Element Update Dear Luke:

Thank you for the opportunity to review and comment on the City’s draft 6th Cycle Housing Element Update. We commend the City for electing to quickly move forward with the process and look forward to the City successfully achieving a compliant Housing Element. To that end, we offer the below comments for the City’s consideration before submitting the Housing Element to the California Department of Housing and Community Development for its review.

The City Should Rezone The Rise Site to Conform to the SB 35 Approval and the Assumptions in the Housing Element Update
We were pleased to see that the Housing Element Update recognizes the importance of The Rise project (formerly known as Vallco) to the City’s goal of meeting its RHNA obligations. The City’s total RHNA obligation is 4,588 units and The Rise includes 2,402 units, representing over half of the City’s total RHNA obligation. Importantly, the Rise also represents 136% of the City’s low-income unit obligation, over 60% of the City’s market rate housing needs, and nearly 25% of the very low-income housing category. In short, the City’s path to RHNA compliance is dependent on The Rise, so it is incumbent on the City to do all that it can to ensure the project is constructed. We are encouraged by new City leadership, both at the staff and City Council level, and look forward to working with the City to make sure this project is delivered.

However, given the project’s critical role in achieving the City’s RHNA obligation, and the fact that the project is identified in the Housing Element site inventory list, the Housing Element should also reflect that the City will amend the General Plan and zoning to conform with the project program as approved 622
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Luke Connolly
December 23, 2022

under SB 35. Currently, the Housing Element includes The Rise on the site inventory list, identifying it as a “pipeline project” (meaning it is an approved but yet-to-be-developed project), but the Housing Element contains no indication that the General Plan and zoning need to be amended in order to achieve the 2,402 units that the Housing Element relies upon.

The Housing Element Strategies HE-1.3.5 and 1.3.6 state that in order to ensure there are adequate sites to meet the City’s RHNA, the City will amend the General Plan and zoning to conform to the new designations shown in Table B4-3. However, Table B4-3 does not provide new land use designations for any of the pipeline project sites, including The Rise, so presumably the City is not intending to rezone those sites. While that may be an appropriate approach for other pipeline projects where the applicable zoning and project approvals are consistent, that is not the case for The Rise, which the City downzoned in 2019. Today, most of the project site is now designated “Regional Shopping,” which does not allow residential or office, with a 13.1-acre area east of Wolfe Road allowing for only 459 units. As we explained in 2019, there is no feasible project that can comply with this zoning.

The City’s logic in not updating the General Plan and zoning for pipeline projects including The Rise appears to be that, because The Rise is an approved project, the City can assume that it will get built based on that existing approval. However, the fact is that four years after our initial SB 35 approval, and despite our best efforts, we still have not even been able to commence site grading for the project, much less any building construction. While we fully intend to utilize our approval and hope to complete construction of The Rise during the 6th Cycle, the success of the City’s Housing Element should not, and legally cannot, simply rely on us timely utilizing that SB 35 approval. The City has often reminded us that SB 35 approvals can lapse if certain construction milestones are not met. By not rezoning The Rise, the Housing Element is effectively counting on project construction to start early in the 6th Cycle and then to continue without interruption through completion, which given the project’s history to date, we do not believe is a reasonable view for the City to take. Instead, as with other housing inventory sites, the City should rezone our site in order to accomplish its Housing Element goals.

We note that Strategy HE-1.3 confirms that each site listed on Table B4-3 (except for seven identified sites, not including The Rise) is considered a “Priority Housing Site” under the City’s Zoning Code, which means that the number of units identified in Table B4-3 “shall be allowable by right without need for rezoning or any other discretionary action on the part of the City.” Even if this means that 2,402 units can be built at the site under the existing non-residential zoning as downzoned in 2019, this does not meet Housing Element Law requirements because there is no “realistic” potential for such a project. As we have explained in prior correspondence during the 2019 downzoning, for a project to achieve significant housing yields, particularly with the 50% affordable requirement that is called for in the Housing Element, there must be an economic engine, i.e., the office component, to ensure project feasibility. Simply allowing 2,402 units by right (50% of which as affordable) is not sufficient to realistically create the potential for those units to actually be developed.
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For these reasons, we request that the Housing Element be revised to acknowledge that the General Plan and zoning designations for our site will be amended to match The Rise’s full land use program as approved.

The Housing Element Should Include Further Steps to Minimize Impact Fees on Housing We applaud the City for recognizing that its impact fees are very high, particularly when compared to comparable fees in other jurisdictions, and that those high fees are creating an impediment to the production of new housing. As we have previously relayed in other contexts, not only are these fees a heavy burden on, and sometimes obstacle for, housing, but we believe that the underlying nexus studies do not support some of the City’s fees, in particular for the transportation impact fee (TIF) and the park dedication fees. In particular, most of the TIF funded projects are not related to new development so are not appropriate for impact fees and the park fee is based on the acquisition of new parkland even though that is not the City’s intended use for the collected fees. For more detail, we direct the City to the letters that we have previously submitted on these topics and ask that the City consider these nexus considerations when implementing the new City policy to lower its impact fees.

We also commend the City for continuing its policy of waiving the park dedication fee and construction tax on affordable units, but we recommend that the City both expand and clarify this policy. Park dedication fees are a significant development cost driver in Cupertino, but there are other significant fees, such as the TIF, that are also challenging for affordable projects to pay. The current TIF rate is $4,215/unit, and the City imposes this fee on all units, including affordable units. Not only is this a challenge for affordable units, but it is not justified, as studies have demonstrated that low-income households living in multifamily housing own fewer vehicles, make fewer motorized vehicle trips, and generate fewer vehicle miles traveled than their similarly situated higher income counterparts.1 For these reasons, we
recommend expanding the affordable housing waiver to also cover the TIF.

Importantly, the fee waiver(s) should apply to all units that qualify as below market units for RHNA purposes. The City has previously taken the position that the park dedication fee waiver only applies to affordable units that charge rents that are based on the City’s rent schedule, but the waiver does not apply to affordable units governed by the low housing income tax credit (LIHTC) schedule.2 There is no
justification for this discrepancy, particularly since the City counts such LIHTC units toward the City’s compliance with its RHNA. The City should facilitate the development of all affordable units by confirming that the fee waiver applies to City BMR units as well as LIHTC units. 1 “Affordable Housing Trip Generation Strategies and Rates,” by Dr. Kelly J. Clifton (PI), Dr. Kristina M.

Currans, Dr. Robert Schneider, and Dr. Susan Handy, for California Department of Transportation, dated September 14, 2018.
2 For the record, we believe this position is incorrect and would be unlawful. 624
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Luke Connolly
December 23, 2022

Other Minor Corrections
We identified a couple other minor items that should be corrected, as follows:
 Appendix B3, Housing Constraints, states that the City is “not subject to SB 35;” however, HCD has determined that, like most jurisdictions in the state, the City is currently not meeting its below moderate RHNA obligations so is subject to SB 35. Unless HCD changes its determination, this statement should be corrected.
 Appendix B4, Vacant and Available Sites, contains the following statement: “Due to the significant amount of pipeline and units, the City is already exceeding its RHNA for the Low and AboveModerate income categories for the 2023-2031 planning period.” However, most of the pipeline projects do not yet have building permits, which is the milestone of concern for RHNA purposes.

This statement should instead state that if the entitled pipeline projects obtain building permits, then the City would be exceeding its RHNA for the mentioned categories. * * *
Thank you for your consideration of our comments.

Sincerely,
Reed Moulds

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1 Cyrah Caburian
From: Lisa Warren
Sent: Friday, December 23, 2022 4:56 PM
To: Luke Connolly; Housing
Cc: City Clerk
Subject: Draft Housing Element Public Comment submitted 4:50pm Dec 23, 2022 Attachments: Housing Element draft comments for submittal Dec 23, 2022.docx CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

To Luke Connolly and others,
Please confirm receipt of this email message with one attachment.

Thank you,
Lisa Warren
Here are 2 pages of public comments related to
The City of Cupertino DRAFT Housing Element for HCD RHNA cycle 6 Sent to Planning Staff on December 23, 2022
From Lisa Warren
In General :
 It is completely appropriate and beneficial for the city of Cupertino use of all of the listed Pipeline Projects in the Draft Housing Element. The identified projects have been thoughtfully chosen and follow HCD’s compliance requirements for this RHNA cycle.

Notable, is that all of the previous housing element sites have approved projects which shows that the city’s site selection process was successful in identifying potential sites.  It is encouraging to see that Cupertino has distributed it’s priority housing element sites across the city as this type of distribution is an important requirement stated by HCD. However, the distribution should be more robust for numerous reasons. Cupertino should be planning for greater equity in access to all current and future, public amenities. The city is already imbalanced in this way. More serious efforts should be made to include additional housing distribution – of all types. One example is the Bubb Rd area. There have been many attempts over many years, to provide housing in that area. Now is the time for making that a reality.

Housing along Bubb Rd would be close to De Anza College, major transportation corridors (Hwy 85, Stevens Creek Blvd) and existing recreational amenities.
 Several ‘policies’ are void of ‘strategies’ listed to implement the policy. To create a more useful document for future planning and decision making, strategies should be discussed, created, and presented in this Draft document prior to submittal to HCD.
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2 Some (but not all) of the policies that need scrutinizing are:

Policy HE-1.1, Policy HE-1.2, Policy HE-2.1, Policy HE-2.2, Policy HE-3.2 More Specific:
 There is a seriously inaccurate claim made on page 1-7. Please correct this. The statement reads “…and the overall lack of support for new affordable housing development in the community.” The consultant hired by the city should have known better than to make this statement. Not once during the many Housing Element meetings/discussions did any public speaker or committee/commission/council member, give reason for this to be an accurate statement. It was quite the contrary.  Page 2-9, HE-1.3.10 “Lower Fees for Multi-Family Housing Projects…Cupertino has development fees that are among the highest in the region.” This is not accurate. Cupertino diligently performed Nexus Studies to determine what are appropriate mitigation fees that will cover the actual costs to mitigate development project issues. BMR housing projects should be considered for lower fees than are currently defined by the city.
 Page 2-14, HE-2.3.5 remove the reference to “green fields”. “Green Fields” refers to parks, school sites, land that is, and has always, been void of buildings. As the population density increases in our city and the entire region, the need for open space increases both for mental and physical health of our growing and more confined population.
 Page 2-22, Strategy HE-4.1.3 says development should include green roofs – “Green Roofs” is not a definition of anything specific and is a buzz word that is often misunderstood (actually misleading). This Strategy should refer to Cupertino’s Climate Action Plan. Please omit the term ‘green roof’ in this strategy. Also our city building codes and certifications should be referenced rather than trying to specify exactly what is needed.
 There are no Goals regarding the health and safety of future housing residents. This is a large hole in a Housing Element document. Suggested, but not complete list of goals to add are :

Housing Element sites that were/are zoned non-residential WILL be reviewed to ensure that any closed GeoTracker or other cases that are closed are still closed when residential limits are applied to the contaminant levels.

Housing Element sites on or adjacent to past or present dry cleaners or gas station sites WILL be examined for contaminants at the levels acceptable for residential use.

All contaminant issues will be mitigated prior to a building permit issued. 627
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Here are 2 pages of public comments related to
The City of Cupertino DRAFT Housing Element for HCD RHNA cycle 6 Sent to Planning Staff on December 23, 2022
From Lisa Warren
In General :
 It is completely appropriate and beneficial for the city of Cupertino use of all of the listed Pipeline Projects in the Draft Housing Element. The identified projects have been thoughtfully chosen and follow HCD’s compliance requirements for this RHNA cycle.

Notable, is that all of the previous housing element sites have approved projects which shows that the city’s site selection process was successful in identifying potential sites.  It is encouraging to see that Cupertino has distributed it’s priority housing element sites across the city as this type of distribution is an important requirement stated by HCD. However, the distribution should be more robust for numerous reasons. Cupertino should be planning for greater equity in access to all current and future, public amenities. The city is already imbalanced in this way. More serious efforts should be made to include additional housing distribution – of all types. One example is the Bubb Rd area. There have been many attempts over many years, to provide housing in that area. Now is the time for making that a reality.

Housing along Bubb Rd would be close to De Anza College, major transportation corridors (Hwy 85, Stevens Creek Blvd) and existing recreational amenities.
 Several ‘policies’ are void of ‘strategies’ listed to implement the policy. To create a more useful document for future planning and decision making, strategies should be discussed, created, and presented in this Draft document prior to submittal to HCD.

Some (but not all) of the policies that need scrutinizing are:

Policy HE-1.1, Policy HE-1.2, Policy HE-2.1, Policy HE-2.2, Policy HE-3.2 More Specific:
 There is a seriously inaccurate claim made on page 1-7. Please correct this. The statement reads “…and the overall lack of support for new affordable housing development in the community.” The consultant hired by the city should have known better than to make this statement. Not once during the many Housing Element meetings/discussions did any public speaker or committee/commission/council member, give reason for this to be an accurate statement. It was quite the contrary.  Page 2-9, HE-1.3.10 “Lower Fees for Multi-Family Housing Projects…Cupertino has development fees that are among the highest in the region.” This is not accurate. Cupertino diligently performed Nexus Studies to determine what are appropriate mitigation fees that will cover the actual costs to mitigate development project issues. BMR housing projects should be considered for lower fees than are currently defined by the city. 628
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 Page 2-14, HE-2.3.5 remove the reference to “green fields”. “Green Fields” refers to parks, school sites, land that is, and has always, been void of buildings. As the population density increases in our city and the entire region, the need for open space increases both for mental and physical health of our growing and more confined population.
 Page 2-22, Strategy HE-4.1.3 says development should include green roofs – “Green Roofs” is not a definition of anything specific and is a buzz word that is often misunderstood (actually misleading). This Strategy should refer to Cupertino’s Climate Action Plan. Please omit the term ‘green roof’ in this strategy. Also our city building codes and certifications should be referenced rather than trying to specify exactly what is needed.
 There are no Goals regarding the health and safety of future housing residents. This is a large hole in a Housing Element document. Suggested, but not complete list of goals to add are :

Housing Element sites that were/are zoned non-residential WILL be reviewed to ensure that any closed GeoTracker or other cases that are closed are still closed when residential limits are applied to the contaminant levels.

Housing Element sites on or adjacent to past or present dry cleaners or gas station sites WILL be examined for contaminants at the levels acceptable for residential use.

All contaminant issues will be mitigated prior to a building permit issued.

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1 Cyrah Caburian
From: Rhoda Fry
Sent: Friday, December 23, 2022 7:55 PM
To: Housing
Subject: Housing Element Comments
Attachments: Cupertino-future-building-codes.pdf
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear City of Cupertino,
A number of people have suggested that we should not rely on pipeline projects. I disagree and trust that City Staff and consultants and housing commission made the correct informed decisions. I would also like to remind you that some pipeline projects can result in more housing than originally anticipated. For example, originally the project at the old Oaks Shopping Center was going to be hotel and office space. Now it is nearly all housing. An older example is Sevens Springs, which I recall wound up having higher density than originally anticipated. Our City certainly would not have allowed the buildings at Vallco to be torn down if a real project had not been anticipated. Additionally, if we have too much of a buffer, that could put us in a bind 8 years from now.

In parallel, I would like the City to determine whether the number of housing units required by the State are still reasonable given the changes in the economy and working conditions. Right now, we are seeing a number of vacancies in rentals, both residential and office. At the same time, we need to protect our shopping areas.

I’ve observed that the parking lots in various retail locations are quite full and think that we could use more retail.

A component of affordable housing is utility cost. We need to have measures in place to minimize cost of utilities for all residents and especially those who are on limited incomes. I have seen where developers can build dwellings that are less energy-efficient for affordable housing units. This is wrong on two fronts. First, we are incinerating our planet and we must take all available measures to combat global warming, not incremental ones. Second, the cost of utilities will make up a larger portion of a person with a lower income than a person with a higher income. Energy-efficient dwellings can cost less to build. Why? Because if you build a good building envelope, one that has superior insulation and sealing, it will require less hvac equipment. It also means that you will need less roof space to install solar panels because energy demands will be lower. Please consider PHIUS standards, especially for high-density projects:
https://www.phius.org/standards https://passivehouse.com/ Please also refer to a paper that I wrote up some time ago for the Cupertino Sustainability Commission. We must be looking to lowering our energy-use – that is what will help with global warming. Using energy, even if it is solar energy, to run HVAC equipment when a better building envelope would reduce its use, makes no sense. Likewise, it is a false-economy when people over-illuminate their spaces with decorative LED-lighting because it is energy-efficient. If you don’t need it – don’t use it. We must have better building envelopes and require air-tightness testing and appropriate remediation. High-density housing should also be equipped with internet access so that residents do not have to purchase it separately. All new housing must meet or exceed the State’s current green-building standards (T-24, etc…) with no exceptions for affordable units. 630
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2 We need to provide permanent affordable housing. Currently, affordable housing units only last 45 or 55 years, depending on whether the unit is leased or owned. This is not long enough. That amount of time goes by in the blink of an eye. The City of Los Altos is requiring 99 years. We should do the same – or even better.

It is a good thing that some land is being re-purposed for housing. However, we need to make sure that the land can support healthy housing. If housing is adjacent to a freeway or other air pollution, there must be measures in place to ensure that the home is healthy to live in. Similarly, there must also be soil testing. Keep in mind that the epa and water board has different thresholds for different uses. So if a property is being used for commercial use, it is okay for there to be a certain amount of soil or groundwater contamination. If the land is repurposed, we must ensure that it is suitable for housing. Consider Bay View in San Francisco where residents have had generational health impacts. Particularly if people in BMR housing get sick, our County tax dollars will have to take care of their health costs. It is a false-economy (and immoral) to build on land that is not suitable for habitation.

Typographical error “pose an undo burden on the development of affordable housing.” Should read “undue.” The question is, what is “undue?” A construction project that is less profitable for the developer but contributes more to global warming is not an undue burden – it is a duty. Same for building on healthy sites.

The City should not “Lower Fees for Multi-Family Housing Projects. Cupertino has development fees that are among the highest in the region. The City will revise its fee structure to lower fees for multi-family housing so that they are in line with the regional average.” Our City must recover actual building development fee costs. There are other ways that a developer can increase the profitability of their project through various concessions such as density bonuses.

As we move toward having more high-density housing, we also need to ensure that there is accessible open space adjacent to these projects for the health and well-being of its residents.

That’s about all the time I have to write you a quick note on this . . . there’s never enough time! Thanks,
Rhoda Fry
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1 Future Proofing Cupertino’s Built Environment, Sustainability Commission (11/15/2018) Rhoda Fry [email protected] Cupertino Must Implement the Building Standards of the Future Now to Promote Sustainability and Address Climate Change
Future-Proofing Cupertino’s Built Environment
Cupertino must implement the building standards of the future now to promote sustainability and address climate change. Since 39% of total U.S. energy is consumed by the residential and commercial sectors, the built environment must become more energy-efficient.1 Consequently we should adopt building standards of the future now, such as LEED Platinum, Zero-Net Energy, and Passive House. This document lists Cupertino planned development, summarizes Cupertino green building standards, provides information about Zero-Net Energy and Passive House standards, and proposes strategies on how to future-proof Cupertino’s built environment.

Cupertino Major Planned Development
The Cupertino Planning Department major development project list anticipates over 3700 housing units to be built (most replace existing buildings);2
this represents an over 18% increase in housing since the 2010 census reported 20,181 households.3
Not including Vallco, 173,000 SF of commercial space is approved to be built or renovated.

Residential Units: 3700+ Commercial: 173,000 SF (not including Vallco) Vallco: 2400+ housing units Westport: new 20,000 SF
Hamptons: 942 apartments (net increase of 600) Marina: new 23,000 SF and 122-room hotel Westport (The Oaks): 204 housing units Target: renovated 129,650 SF Marina: 188 housing units

Cupertino Green-Building Standards
The Cupertino Green Building Standards Code (16.58.220) mandates only minimum green building requirements.4 For larger projects this mandate is slightly extended, but not as much as neighboring cities. The following standards make up Cupertino’s green building standard: CALGreen, Green Point Rated, LEED, and approved alternates.

CALGreen, the California Green Building Standards Code
CalGreen is the California Building Code Regulations, Title 24, Part 11 (Title 24 or even T24, for short). CalGreen has a mandatory checklist for Planning and Design; Energy Efficiency; Water Efficiency and Conservation; Material Conservation and Resource Efficiency; and Environmental Quality. Cities that have extended the basic CalGreen energy standards include: Los Altos, Menlo Park, Palo Alto, San Francisco, and Santa Monica.5 Projects
achieving additional measures, such as 15% or 30% energy reduction, can earn a Tier 1 or Tier 2 rating.6 LEED, Leadership in Energy and Environmental Design, by the U.S. Green Building Council (USGBC) LEED is the most widely used green building rating system in the world.7 There are four levels of certification that are achieved through a points-based system, Certified (40), Silver (50), Gold (60), and Platinum (80). Projects built to CALGreen standards are pre-approved for significant streamlining of fundamental LEED V4 requirements.8 Green Point Rated (GPR) by Build It Green (BIG)
Green Point Rated is a program created by Build It Green, whose mission is to promote healthy, energy- and resource-efficient buildings in California.9 There are four levels of certification that are achieved through a points-based system, Certified (50), Silver (80), Gold (110), and Platinum (140). StopWaste has a quick reference guide that provides a comparison between GPR, LEED, and CALGreen Tiers 1 and 2.10

1 U.S. Energy Information Administration: https://www.eia.gov/tools/faqs/faq.php?id=86&t=1 2 Cupertino Planning Major Projects:
https://www.cupertino.org/our-city/departments/community-development/planning/major-projects 3 Cupertino Census Data: http://www.bayareacensus.ca.gov/cities/Cupertino.htm 4 Cupertino Green Building Standards Code 16.58.220:
http://library.amlegal.com/nxt/gateway.dll/California/cupertino/cityofcupertinocaliforniamunicipalcode?f=templates$fn=default.htm$3. 0$vid=amlegal:cupertino ca 5 Municipalities Exceeding CalGreen: https://www.energy.ca.gov/title24/2016standards/ordinances/ 6 CalGreen: http://www.bsc.ca.gov/Home/CALGreen.aspx
7 United States Green Building Council (USGBC): https://new.usgbc.org/ 8 USGBC / CALGreen Alignment:
https://www.usgbc.org/articles/us-green-building-council-announces-leed-v4-and-calgreen-alignment-california-projects 9 Green Point Rated: http://greenpointrated.com/about/ 10 Comparing Green Point Rated, CALGreen, and LEED:
http://www.stopwaste.org/sites/default/files/Documents/gprv6-leedv4-calgreen2013-res-comparisons-intro-2014.pdf 632
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2 Future Proofing Cupertino’s Built Environment, Sustainability Commission (11/15/2018) Rhoda Fry [email protected] Summary of Cupertino New Construction Green Building Codes (with selected comparisons) Residential <= 9 homes CALGreen minimum thresholds (Los Altos: GPR certified at minimum 50 points11) Residential > 9 homes GPR certified at minimum 50 points; LEED Silver or alternate approved standard (Palo Alto: GPR certified at minimum 70 points12)
Commercial <= 25,000 SF CALGreen minimum thresholds (Palo Alto >= 5000 SF LEED Silver) Commercial <= 50,000 SF LEED Certified or alternate approved standard (Palo Alto >= 5000 SF LEED Silver) Commercial >= 50,000 SF LEED Silver or alternate approved standard (Menlo Park > 100,000 SF LEED Gold13) California Zero Net Energy (ZNE) by 2020
A Zero Net Energy Building is an energy-efficient building where, on a source energy basis, the actual annual consumed energy is less than or equal to the on-site renewable generated energy. The California Energy Efficiency Strategic Plan goals for the development of zero net energy building include: all new residential construction will be zero net energy (ZNE) by 2020; all new commercial construction will be ZNE by 2030; 50% of commercial buildings will be retrofit to ZNE by 2030; 50% of new major renovations of state buildings will be ZNE by 2025.14 Passiv Haus (Passive House)
The Passiv Haus (PHI) building standard was developed in Germany to reduce energy consumption in both residential and commercial buildings;15 its United States counterpart is Passive House (PHIUS).16 Keep in mind that Passive House is neither passive solar nor net-zero energy. The benefits of Passive House are:
 Lower Energy Use of 60-80% overall energy savings over typical buildings  High Indoor Air Quality using controlled ventilation for a continuous supply of fresh filtered air  Comfortable and Consistent Indoor Temperature due to a superior building envelope  Additional Operational and Construction Savings from the elimination of conventional HVAC system and a smaller solar system, which can also make a zero-net energy building feasible17 This standard comprises five design principles used to attain a quantifiable and rigorous level of energy efficiency within a specific quantifiable comfort level:

1. Optimal level of thermal insulation throughout its entire envelope. Rock wool insulation, also known as stone wool or mineral wool, is often fastened to the exterior of the building. As an added benefit, rock wool insulation promotes fire safety because it withstands intense heat up to 2150°F (1177°C).18

2. High-performance windows and doors along with added insulation make Passive House buildings quieter and more comfortable than conventional buildings. Solar gain is managed to exploit the sun's energy for heating purposes in the heating season and to minimize overheating in the cooling season.

3. Thermal bridge-free construction avoids heat loss. A thermal bridge is a component which has higher thermal conductivity than the surrounding materials which creates a path for heat transfer.

4. An airtight building envelope prevents infiltration of outside air and loss of conditioned air. Airsealing is the cheapest way to obtain energy-efficiency in buildings. The Passive House air-sealing requirement is at most 0.6 ACH @ 50Pa. (ACH: air changes per hour, Pa: pascal unit). The IECC (International Energy Conservation Code) requirement is at most 3 ACH @ 50Pa in our climate zone.19 The California Energy Commission requires air sealing,20 but does not require performance testing.

5. Ventilation with heat recovery, such as a Heat Recovery Ventilation (HRV) system is a ventilation system that reduces high humidity, pollutants and odors by replacing stale air with fresh filtered air.

11 City of Los Altos Green Building Ordinance: http://ag.ca.gov/globalwarming/pdf/los altos.pdf 12 City of Palo Alto Green Building Standards: https://www.cityofpaloalto.org/civicax/filebank/documents/17681 13 City of Menlo Park Green Building: https://www.menlopark.org/DocumentCenter/View/12603/1024---GP-O-District?bidId= 14 California Public Utilities Commission Zero Net Energy: http://www.cpuc.ca.gov/ZNE/ 15 Passiv Haus International Building Standard: https://passivehouse.com/ 16 Passive House U. S. Building Standard: http://www.phius.org/home-page 17 Passive House Benefits http://www.passivehousecal.org/benefits-economics 18 Benefits of Rock Wool Insulation: https://www.rockwool.com/why-stone-wool/ 19 U.S. Department of Energy Air Leakage Guide:
https://www.energycodes.gov/sites/default/files/documents/BECP Buidling%20Energy%20Code%20Resource%20Guide%20Air%20Leak age%20Guide Sept2011 v00 lores.pdf 20 California Energy Commission Air Sealing Requirements:
https://www.energy.ca.gov/title24/2013standards/res compliance forms/CF2R/2013-CF2R-ENV-02-EnvelopeAirSealing.pdf 633
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3 Future Proofing Cupertino’s Built Environment, Sustainability Commission (11/15/2018) Rhoda Fry [email protected] A business case can be made for investing in Passive House for commercial buildings because they have lower operating costs and their superior indoor air quality reduces vacancies.21 In addition, Passive House commercial buildings have been built at costs comparable to typical new construction.22 Examples of Large Residential and Commercial Passive House Projects in California and Elsewhere in the U.S.

Habitat for Humanity, Canon Perdido
Condos, Santa Barbara, CA23
12-unit affordable housing project of which 3 units are Passive House U. S. certified
Green Gulch Zen Center, Muir Beach, CA 24 8 dormitory units Sol Lux Alpha, San Francisco, CA25 Collection of four condominium residences Kiln Apartments, Portland, OR26 19 apartment units
The Stellar House, Portland, OR27 6-plex. This building had 36% energy-savings over an identical energy-efficient “Earth Advantage” version of the building The Innovation Center, Basalt, CO 28 Net-zero carbon 15,610 SF office building Sunshine Healthcare, Spokane, WA29 Selected Passive House standard because it was cheaper to build and operate, and delivered superior comfort and indoor air quality The Heights, Vancouver, Canada30 Mixed-use: 85 apartments, about 60,000 square feet, 6 stories high 310 N. Sangamon, Chicago, IL31 268,000 SF office space and 7,800 SF retail space will be the largest Passive House office building in the U.S.

Chestnut Commons, New York, NY32 274-unit apartment complex will offer 80 BMR apartments The House at Cornell Tech, New York, NY 33 the tallest (26-story) Passive House building; also LEED platinum Strategies on How to Future-Proof Cupertino’s Built Environment Cupertino’s green building ordinance is not only lagging behind the leading edge of building science, but also of that of neighboring cities. We know that we can do better. Apple Park is expected to achieve LEED Platinum, and a decade ago, in 2008, The Kirsch Center at DeAnza College earned LEED Platinum.34 In addition, demolishing relatively new “outdated” buildings and replacing them is wasteful. The Hamptons, a 342 apartment complex that was built in 1998, is planned to be replaced by 942 apartments. We need to build right the first time. We must not allow this to happen to the projects that are currently planned: 3700 new housing units (including Vallco) and 173,000 SF of commercial space (not including Vallco). With so much new construction expected, we must futureproof our buildings as follows:
 Review what neighboring cities are doing (exceed CalGreen, higher levels of GPR, LEED, etc...)  Adopt features of 2019 Title 24 now and save 7% in energy use over the 2016 energy-efficiency standard while reducing total cost of ownership35
 Follow the State of California’s goal of zero net energy. The City of Palo Alto already has ambitious zero net energy and zero net carbon building targets.36
 Reduce reliance on natural gas
 Select items among points-based rating systems, such as LEED and GPR, that are meaningful to Cupertino  Implement the Passive House building standard for large projects to further reduce energy use

21 Commercial Passive House: https://commercial.phius.org/service-category/breaking-down-numbers-business-case-phius 22 Affordable Passive House:
https://www.usgbc.org/education/sessions/building-energy-15/affordable-passive-house-commercial-buildings-secrets-revealed 23 Habitat for Humanity, Canon Perdido Condos: http://www.phius.org/projects/1185 24 Green Gulch Zen Center Dormitory: http://www.phius.org/projects/1052?sort=%60Projects%60.%60StateId%60+ASC 25 Sol Lux Alpha: http://www.phius.org/projects/1170?sort=%60Projects%60.%60StateId%60+ASC 26 Kiln Apartments: http://kilnpdx.com/
27 Stellar Apartments: http://www.phius.org/projects/1174?sort=%60BuildingFunctionTypes%60.%60BuildingFunctionType%60+ASC 28 Innovation Center: https://www.rmi.org/our-work/buildings/scaling-zero-net-carbon/rmi-innovation-center/ 29 Sunshine Healthcare: https://commercial.phius.org/case-study/sunshine-healthcare-spokane-wa 30 The Heights: http://www.eighthavenue.ca/projects/completed-projects/the-heights,-388-skeena,-vancouver---canada-s-largest-passivehouse-building-234 31 310 N. Sangamon: https://www.chicagotribune.com/business/columnists/ori/ct-biz-fulton-market-offices-ryan-ori-20180608-story.html 32 Chestnut Commons: https://ny.curbed.com/2017/10/27/16560700/east-new-york-affordable-housing 33 The House at Cornell Tech: https://www.metropolismag.com/architecture/passive-house-cornell-tech/ 34 DeAnza College Kirsch Center: https://www.deanza.edu/es/kirsch/leed.html 35 California 2019 Building Energy Efficiency Standards (Title 24): https://www.energy.ca.gov/title24/2019standards/ 36 Palo Alto Zero Net Energy Road Map: https://www.cityofpaloalto.org/civicax/filebank/documents/63492 634
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1 Cyrah Caburian
From: Griffin
Sent: Saturday, November 26, 2022 10:32 PM
To: City of Cupertino Planning Commission; HousingCommission; City of Cupertino Parks and Recreation Commission; City of Cupertino Sustainability Commission Cc: City Clerk; City Council
Subject: Please Review the Draft Housing Element
Follow Up Flag: Follow up
Flag Status: Flagged
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Commissioners and City Council Members,
Unfortunately, the public has 30-days to review and comment on the Draft Housing Element document. Comments are due preferably before Friday, December 23, 2022. I’d recommend they be submitted earlier and in priority order.

What you can do:
- Call an emergency meeting of your commission, reviewing the doc beforehand and provide comments as a commission. If this is not possible…
- Review the document individually and provide comments.

PLANNING COMMISSION:
- Chapters 1 (Overview)
P 1-7, 2nd to last paragraph says “…and the overall lack of support for new affordable housing development in the community.”
- Chapter 2 (Goals, Policies and Strategies)
- Chapter 4 (Vacant and Available Sites)
- Appendix B4 Vacant and Available sites
- Appendix B5 Review of Previous Housing Element
NOTES:
- It does not designate Tier 1 and Tier 1 sites. It treats all sites the same i.e. rezone all, etc. - HE-1.3 .10 Says “…Cupertino has development fees that are among the highest in the region. The City will revise its fee structure to lower fees for multi-family housing…” (P 2-9) - HE-2.3.5 Says put housing on green fields i.e. our parks and closed schools. (P 2-14) - HE-4.1.3 Says development should include green roofs. (P 2-22) HOUSING COMMISSION:
- Chapters 2 (Goals, Policies and Strategies)
- HE-2.3.5 Says put housing on “green fields” i.e. our parks and closed schools. (P 2-14) - HE-4.1.3 Says development should include green roofs. (P 2-22) - Chapter 3 (Housing Needs and Constraints)
- Appendix B2(Housing Needs Assessment)
- Appendix B3 Housing Constraints
SUSTAINABILITY COMMISSION:
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2 - Chapter 5 (Energy Conservation)
Not up to date
PARKS AND REC COMMISSION:
- Chapter 2 (Goals, Policies and Strategies)
NOTE:
- HE-2.3.5 Says put housing on green fields i.e. our parks and closed schools. (P 2-14) - HE-4.1.3 Says development should include green roofs. (P 2-22) CITY COUNCIL SUBCOMMITTEE ON HOUSING ELEMENT:
- Appendix B6 List of Contacted Organizations
PLEASE, if you can review any section, it would help our city. Prioritize your comments. Typos are irrelevant at this point. It’s content that ‘s important. Read every word. Don’t skim! Your comments should be in priority order.

Thank you,
Peggy
LINK TO DRAFT HE DOC:
https://ehq-production-us-california.s3.us-west1.amazonaws.com/0790584f78763eec9499b2f8c98493d7f6e6f957/original/1668797753/bd1ec55ec1d99f164c3c1fa3c7 ef2284 Cupertino 6th Cycle Housing Element Admin Draft.pdf?X-Amz-Algorithm=AWS4-HMAC-SHA256&X-AmzCredential=AKIA4KKNQAKICO37GBEP%2F20221122%2Fus-west-1%2Fs3%2Faws4 request&X-AmzDate=20221122T214406Z&X-Amz-Expires=300&X-Amz-SignedHeaders=host&X-AmzSignature=4aea7f02de61c79c72e89211130db01af4b4520c4c37c13ac6733befc379b4a5 636
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1 Cyrah Caburian
Subject: FW: SV@Home Comment Administrative Draft Housing Element Update Attachments: SVH Comment Cup Admin Draft HEU 12_23_22.pdf From: Mathew Reed
Sent: Saturday, December 24, 2022 4:48 PM
To: Luke Connolly <[email protected]>
Cc: Housing <[email protected]>; City Council <[email protected]> Subject: SV@Home Comment Administrative Draft Housing Element Update CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Mr. Connolly.

Please find our comment on the Administrative Draft Housing Element Update attached.

Mathew Reed
Director of Policy
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December 23, 2022
Re: Administrative Draft Housing Element Update

350 W. Julian Street, Building 5, San José, CA 95110
408.780.8411 • www.svathome.org • [email protected] Council instead chose an ad hoc Community Engagement Plan-Strategic Advisory Committee, comprised of only elected and appointed officials. This committee held a series of meetings noticed only 24 hours in advance, which failed to actively solicit community input and did not address the substantive requirements of the housing element process. The Council has demonstrated unwillingness to allow the Housing Element process to continue without interference, or to comply with basic statutory requirements and standards.

As a result, the draft does not fully address the housing needs in Cupertino, and has provided vague and inadequate programs and policies -- the document failed because the process failed.

Governmental constraints on housing production, and the barriers to development at the Valco site.

The required assessment of the cumulative constraints of local impact fees and taxes, land use designations, development review and approval process, and design standards has not been completed. The current draft does include a strategy (HE-1.3.10) to lower fees so they are inline with regional averages, but does not assess the cumulative impact of these fees, nor describe how the fee reductions will specifically support lowerincome housing development. The City of Cupertino does not have a history of supporting multi-family development, and will likely need to reduce fees significantly, particularly on affordable housing development. This will be particularly true of park fees, which are significantly higher than neighboring cities, and do not appear to be dedicated to new parks as required. Cities throughout the region are assessing the cumulative impact of fees and taxes in recognition that the status quo or average is a governmental constraint on residential development.

Similarly, the city should conduct a thorough evaluation of its land use and development review process in order to demonstrate confidence that it will be able to meet the housing need levels as determined through the RHNA process, and distribute lower income housing opportunities around the city as required by AFFH guidelines. While we are pleased to see efforts to develop policies to streamline affordable projects we are concerned that multiple barriers will continue to significantly constrain development.

This is particularly important for the Valco site, which is planned for a mixed-use development that will eventually provide more than half of the 6th Cycle RHNA obligation and well over 100% of its low income units. Any barriers to the development of this site during the planning period should be considered a governmental constraint and be removed. The city has openly fought the development of this site including legal challenges to its SB35 application, and a potentially illegal downzoning of the site in 2019 intended to make the proposed development infeasible. The Cupertino Housing Element update must include explicit General Plan and zoning updates, and fee reviews to accommodate the mixed-use project as proposed. Failure to remove known barriers, and to cease obstructionary actions, should be considered cause for denying state certification.

The City of Cupertino’s Draft 6th Cycle Housing Element falls far short of the statutory requirement at multiple levels, from its failure to elicit and reflect community input, to its deficient analysis of needs, to its absence of concrete programs with implementation details and timelines. We also believe the sites inventory falls significantly short of the AFFH requirements for this process. We regret that the Draft Housing Element, as it stands today, does not represent a serious effort for housing and community advocates to engage with.

SV@Home strongly recommends that the City’s new Housing Element consultant be provided the resources and support needed to produce a compliant Housing Element. 639
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CITY OF CUPERTINO
Agenda Item
22-11766 Agenda Date: 1/17/2023
Agenda #: 21.

Subject: Consider an amendment to the Cost Sharing Agreement between the City of Cupertino and the Santa Clara Valley Water District (Valley Water) for water conservation programs Authorize the City Manager to execute the Sixth Amendment to the Cost Sharing Agreement between the City of Cupertino and Valley Water, increasing the amount by $165,000, for a total amount not to exceed $395,500, and extending the Term of the Agreement to end on June 30, 2024; and Adopt Resolution No. 23-014 approving budget modification #2222-252 increasing appropriations by $90,000 in City Manager, Sustainability budget CITY OF CUPERTINO Page 1 of 1 Printed on 1/11/2023
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CITY COUNCIL STAFF REPORT
Meeting: January 17, 2023
Subject
Consider an amendment to the Cost Sharing Agreement between the City of Cupertino and the Santa Clara Valley Water District (Valley Water) for water conservation programs.

Recommended Action

1. Authorize the City Manager to execute the Sixth Amendment to the Cost Sharing Agreement between the City of Cupertino and Valley Water, increasing the amount by $165,000, for a total amount not to exceed $395,500, and extending the Term of the Agreement to end on June 30, 2024; and

2. Adopt resolution XX-23 approving budget modification 23-XXX increasing appropriations by $90,000 in City Manager, Sustainability budget.

Background
In June 2015, the City Council launched a cost sharing program with Valley Water to support water conservation rebates for Cupertino property owners (CC Resolution No. 15-057). In this agreement, the City contributed a total of $115,000 to add $1 per square foot to Valley Water’s Landscape Conversion Rebate for residential and commercial applicants in Cupertino.

In July 2016, the City and Valley Water entered into an updated agreement for the cost sharing program with a not to exceed cost of $115,000 (CC Resolution No. 16-074). As Valley Water expanded its rebate offerings over the years, the City adjusted the cost sharing program, adding funds and program elements to the agreement. The cost sharing program was further augmented by the launch of the Climate Victory Gardens Pilot, a Fiscal Year 2019 to 2020 City Work Program project. Below is summary history of this agreement. The original contract is included as Attachment B. 641
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Brief history of the current cost sharing agreement and amendments Agreement /
Amendment
Date
Executed Adjustments
Original cost
sharing agreement
July 1, 2016 City costs not to exceed $115,000 to support Valley Water’s Landscape Conversion Rebate
Program.

First Amendment May 3, 2017 ▫ Added $5,000, for a new contract total of $120,000.
▫ Added Graywater Laundry to Landscape
rebates to the scope.

Second
Amendment
June 1, 2018 Extended agreement through July 30, 2019.

Third Amendment May 14, 2019 ▫ Added Rainwater Capture Program rebates to the scope.
▫ Extended agreement through June 30, 2020.

Fourth Amendment June 22, 2020 Extended agreement through June 30, 2021.

Fifth Amendment May 25, 2021 ▫ Added $110,500, for a new contract total of $230,500.
▫ Capped City’s cost for the Rainwater
Capture Program not to exceed $25,000 for
the two-year period.
▫ Extended agreement through June 30, 2023.

Sixth Amendment (proposed) ▫ Add $165,000, for a new contract total of $395,500.
▫ Extend the agreement through June 30, 2024.
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Below are the elements of the City’s obligation under the cost sharing program currently in effect:

Customer type
Landscape
Conversion
Program match
Rainwater Capture Program
match
Graywater
Rebate
Program match
Single-family
and small
multi-family
sites
Up to $1 per each
square foot of turf
removed
Program maximum:
up to $1,000 per site
Rain garden: $1 per square foot
of roof area for a maximum of
$300 per site
Rain barrel: Up to $35 per rain
barrel
Cisterns: Up to $0.50 per gallon
Program maximum: up to $1,000
per site
$200 for each
system installed
Commercial
and large
multi-family
sites
Up to $1 per each
square foot of turf
removed
Rain garden: $1 per square foot
of roof area for a maximum of
$300 per site
Rain barrel: Up to $35 per rain
barrel
Cisterns: Up to $0.50 per gallon
$200 for each
system installed
Program maximum: Up to $10,000 total for combination
of landscape conversion and rainwater capture rebates
Funding Sources
The cost sharing agreement is supported in part by Clean Water and Storm Protection Fee (CWSPF) collected from property owners. The CWSPF provides $12,500 in annual funding, and the remainder of the agreement is funded by the General Fund. Under Municipal Code section 3.38.010, the CWSPF must be “used for the acquisition, construction, reconstruction, maintenance, and operation of the storm drainage system of the City or related green infrastructure or other activities required by the City’s NPDES permits, to repay principal and interest on any bonds which may hereafter be issued for said purposes, to repay loans or advances which may hereafter be made for said purposes, and for any other purpose set forth in Section 3.38.160 [i.e., certain administrative costs].” To date, CWSPF funds have been made available for rainwater capture projects only.

The current Municipal Regional Stormwater NPDES Permit (No. CAS612008) requires all permittees “to implement a pesticide toxicity control program that addresses, within their jurisdictions, their own and others’ use of pesticides that pose a threat to water quality and that have the potential to enter the municipal conveyance system.” Landscape conversion away from turf reduces or eliminates the need for fertilizers and pesticides used on turf that would flow into the storm drain system and out to the creeks, consistent with the City’s permit obligations. Accordingly, the $12,500 in annual 643
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CWSPF funding can be made available for landscape conversion as well as for rainwater capture projects.

Participation Rates
The cost sharing program was part of the City’s response to the extreme drought conditions of 2015 to 2016 and the State’s call to conserve 20% water usage over 2013 levels. As reflected in the chart below, the City’s rebate matching program significantly increased participation of Cupertino property owners in Valley Water’s water saving rebates.

At the current rate of participation, the cost sharing agreement will run out of funds before the contract end date of June 30, 2023. In the current drought and declared water shortage emergency condition, this program continues to be a critical piece of the City’s commitment to saving potable water in the community. The cost sharing agreement supports other water conservation and climate action programs, such as the Climate Victory Gardens pilot program. Valley Water estimates a total budget of $165,000 will be needed to cover the increase in participation, including a 20% buffer, through an extension of 18 months of the current agreement.

References:

Climate Victory Gardens Pilot: cupertino.org/climategarden Climate Action Plan 2.0: cupertino.org/climateaction
Drought webpage: cupertino.org/drought
CWSPF: Cupertino.org/cleanwater
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Discussion
The City of Cupertino has an existing agreement with Valley Water, which contributes City funds to increase the value of water conservation incentives for Cupertino residents and businesses. This cost sharing arrangement has been successful in stimulating water conservation activity in the community. Increased uptake by the community in Summer 2022 will likely drain the budgeted funds ahead of the contract end date of June 30, 2023.

For this reason, staff is asking for Council consideration to increase the budgeted amount at this time. Valley Water estimates a total budget of $165,000 will be needed to cover the increase in participation, including a 20% buffer, through an extension of 18 months of the current agreement.

The Cost Sharing Agreement is supported in part by the Clean Water and Storm Protection Fee. Going forward, these funds would be used to support landscape projects, to reduce General Fund expenditures.

Next Steps
• January 17: Council considers a Sixth Amendment to add $165,000 and extend the cost sharing agreement through June 30, 2024.
• February 2023: The Sustainability Division will negotiate a final agreement with Valley Water on an amended cost sharing agreement, including enhancements that can increase customer uptake of these incentives.
• March 2023: As part of the budget process, City staff will bring forward a plan to develop a permanent Climate Victory Gardens program for Council consideration.

Sustainability Impact
The cost sharing program supports Measures WW-1 and AR-1 in the Climate Action Plan 2.0 to promote water conservation and increase biodiversity. Conversion of turf to drought tolerant and California native plant landscapes has a beneficial impact to wildlife, water quality, and water conservation. Rain gardens have stormwater benefits and increase recharge of underground water reserves. Increased participation in all of Valley Water’s rebates via the cost sharing agreement furthers Cupertino’s goal to reduce communitywide water usage by 15% compared to 2019 levels.

Fiscal Impact
$165,000 to execute the Sixth Amendment, appropriated from the General Fund and the Environmental Management/Clean Creeks Fund (Clean Water and Storm Protection fees).
_____________________________________
Prepared by:

Rina Horie, Sustainability Program Intern III
Gilee Corral, Climate and Utilities Analyst
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Reviewed by:

Andre Duurvoort, Sustainability Manager
Christopher Jensen, City Attorney
Michael Woo, Senior Assistant City Attorney
Ursula Syrova, Environmental Programs Manager
Approved for Submission by: Matt Morley, Acting Assistant City Manager Attachments:

A – Draft Sixth Amendment
B – Valley Water Cost Sharing Agreement and Amendments
C – Resolution
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SIXTH AMENDMENT TO

COST SHARING AGREEMENT
#A4008Sc BETWEEN THE

SANTA CLARA VALLEY WATER DISTRICT

AND THE CITY OF CUPERTINO

FOR WATER CONSERVATION PROGRAMS
This Sixth Amendment (“Sixth Amendment”) between the Santa Clara Valley Water District (“VALLEY WATER”) and the City of Cupertino (“CUPERTINO”) amends the Agreement No. A4008Sc, enacted on July 1, 2016 (the “Agreement”), between the Santa Clara Valley Water District and the City of Cupertino, First Amendment dated May 3, 2017, Second Amendment dated June 1, 2018, Third Amendment dated May 14, 2019, Fourth Amendment dated June 22, 2020, and Fifth Amendment dated May 25, 2021 for Water Conservation Programs (collectively, hereinafter referred to as the “Agreement”). VALLEY WATER and CUPERTINO may individually be referred to as the Party or collectively the Parties. This Sixth Amendment is effective once fully executed by the Parties (“Sixth Amendment Effective Date”).

RECITALS
WHEREAS, Under the terms of the Agreement, CUPERTINO agreed to supplement VALLEY WATER’s Landscape Rebate Program and Graywater Rebate Program rebates granted to persons residing in the City of Cupertino; and WHEREAS, CUPERTINO and VALLEY WATER desire to extend the term of the Agreement from June 30, 2023 to the earlier of June 30, 2024, or when funds under this Agreement are depleted, whichever occurs first; and WHEREAS, CUPERTINO and VALLEY WATER desire that CUPERTINO increase its payment obligation under the Agreement by $165,000, from $230,500 to $395,500.

NOW, THEREFORE, the parties agree to amend the Agreement as follows:

1. In the Agreement, Section 2. c), is amended to state as follows:
“CUPERTINO’s total cost to VALLEY WATER for the Landscape Conversion Program and Graywater Rebate Program shall not exceed $370,500. CUPERTINO’s total cost to VALLEY WATER for the Rainwater Capture Program shall not exceed $25,000. CUPERTINO’s total obligation to pay for the PROGRAMS is capped at a total maximum of $395,500.”

2. In the Agreement, Section 5, is amended to state as follows, “The term of the Agreement is from July 1, 2016 to June 30, 2024, or until funds are depleted, whichever occurs first. The term of the MOU may be extended by mutual consent of the Parties. This MOU shall be contingent upon approval of program funding each fiscal year by both VALLEY WATER’S Chief Executive Officer and by CUPERTINO.”

3. All of the terms and conditions of the Agreement, First Amendment, Second Amendment, Third Amendment, Fourth Amendment, and Fifth Amendment not otherwise modified by this Sixth Amendment shall remain in full force and effect.

IN WITNESS THE EXECUTION HEREOF the parties agree that this Sixth Amendment shall be effective as of the Sixth Amendment Effective Date defined above and have set forth below their consent to the terms and conditions of this Sixth Amendment through the signatures of their duly authorized representatives.

SANTA CLARA VALLEY WATER DISTRICT
A Special District created by the California Legislature

By:

Rick L. Callender Esq.

Chief Executive Officer
Date: _____________________________________
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CITY OF CUPERTINO

Approved as to form:

By: By: _____________________________________
Christopher Jensen Pamela Wu
City Attorney City Manager
City of Cupertino City of Cupertino
Date: ___________________________________
Attest:

Kirsten Squarcia
City Clerk
Date:
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SCVWD ENACTED COPY
Contract Administration U'!
AGMT: A'iCCf~;:) FILE: _4..._.//, ...... a__

MEMORANDUM OF UNDERSTANDING

BETWEEN THE SANT A CLARA VALLEY WATER DISTRICT AND

THE CITY OF CUPERTINO FOR A

LANDSCAPE CONVERSION REBATE PROGRAM
This MEMORANDUM OF UNDERSTANDING (MOU) between the Santa Clara Valley Water District, an Independent special district created by the California Legislature (hereinafter referred to as WATER DISTRICT) and the City of Cupertino (hereinafter referred to as CUPERTINO) sets forth the respective roles of the WATER DISTRICT and CUPERTINO in regard to the WATER DISTRICT'S WATER CONSERVATION LANDSCAPE CONVERSION REBATE PROGRAM (hereinafter referred to as PROGRAM) is made and entered into this July I , 2016.

RECITALS
WHEREAS the PROGRAM involves providing Water Conservation Landscape Conversion Rebates for properties located within CUPERTINO's jurisdiction; and WHEREAS the PROGRAM includes the Landscape Conversion Rebate Program for Water Efficient Landscape Conversions; and
WHEREAS the PROGRAM is an appropriate measure for the Best Management Practices addressed in the California Urban Water Conservation Council's MOU regarding Urban Water Conservation in California; and
WHEREAS the WATER DISTRICT has established the PROGRAM, in part, to provide financial incentive to remove existing turf lawns; and
WHEREAS CUPERTINO wishes to participate in the PROGRAM and provide additional incentives for Cupertino residents to remove existing lawns.

NOW, THEREFORE, in consideration of the recitals and mutual obligations of the parties expressed in this MOU, WATER DISTRICT and CUPERTINO agree as follows:

1. WATER DISTRICT'S RESPONSIBILITIES
a) Administration of the PROGRAM, which administration shall include the creation of the PROGRAM brochures and applications.
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b) Collection and analysis of data to determine water savings. c) Administration of all PROGRAM funds including, but not limited to:
• Processing the payment of the amounts set forth in 2.b. below, to eligible persons residing in CUPERTINO ("ELIGIBLE RESIDENTS). Payment of standard PROGRAM amounts to ELIGIBLE RESIDENTS within 8· 12 weeks of receipt of CUPERTINO residential applicant's request.
d) Invoicing CUPERTINO, on a quarterly basis.
e) Work cooperatively with CUPERTINO in appropriately advertising the PROGRAM to targeted customers.

2. CUPERTINO'S RESPONSIBILITIES
a) Work cooperatively with WATER DISTRICT in appropriately advertising the PROGRAM to the targeted customers.
b) CUPERTINO must pay WATER DISTRICT as set forth below for each activity performed by the WATER DISTRICT in the CUPERTINO service area:
• Up to $1.00 per each square foot of turf removed per qualified residential and for commercial rebate, up to $1,000 per residential and up to $10,000 per commercial site, as per the District's Landscape Rebate Program requirements. c) CUPERTINO's obligation to pay for the PROGRAM activities is capped at a total maximum of $115,000.
d) Make payment to WATER DISTRICT within 60 days of receipt of Invoice from WATER DISTRICT.

3. HOLD HARMLESS AND LIABILITY
Each Party ("Indemnifying Party") agrees to indemnify, defend at its own expense, including attorneys' fees, and hold harmless the other Party ("Indemnified Party") from and against all claims, costs, penalties, causes of action, demands, losses and liability of any nature whatsoever, including but not limited to liability for bodily injury, sickness, disease or death, property damage (including loss of use) or violation of law, caused by or arising out of or 2 650
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related to the negligence, or willful misconduct of that Indemnifying Party, its officers or employees, or any other agent acting pursuant to this MOU. ·

4. DOCUMENT REVIEW
WATER DISTRICT and CUPERTINO wilt upon reasonable advance written notice, make available for inspection to the other party records, books and other documents relating to the PROGRAMS.

5. TERM
The term of the MOU is from July 1, 2016 to December 3t 2017, or until funds are depleted, whichever occurs first. The term of the MOU may be extended by mutual consent of the Parties. This MOU shall be contingent upon approval of program funding each fiscal year by both the WATER DISTRICT'S Chief Executive Officer and by CUPERTINO.

6.NOTICE
Any notice, payment credit or instrument required or permitted to be given hereunder shall be deemed received upon personal delivery or five (5) days after deposit in any United States mail depository, first class postage prepaid and addressed to the party for whom intended; or on the same day as a facsimile transmission is sent as long as original is placed in the mail on the same day.

If to WATER DISTRICT:

Santa Clara Valley Water District
5750 Almaden Expressway
SanJose, CA 95118
Attn: Conservation Programs
If to CUPERTINO:

Public Works Department
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Attn: Roger Lee
Either party may change such address by notice given to the other party as provided in this Section 6.
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7. AMENDMENTS
The MOU may only be amended by written agreement executed by both parties.

8. ASSIGNMENT
Neither party is allowed to assign, sublet, or transfer this MOU or any of the rights or interests in this MOU without the written consent of the other party.

9. SEVERABILITY
The partial or total invalidity of one or more parts of this MOU will not affect the intent or validity or remaining parts of this MOU.

10. GOVERNING LAW
This MOU is a contract under the laws of the State of California and for all purposes must be interpreted in accordance with such laws.

11. TERMINATION OF AGREEMENT
This MOU may be terminated by either party hereto for any reason upon thirty (30) days written notice to the other Party.

12. SIGNATURES
The individuals executing this MOU represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entitles.

In WITNESS WHEREOF, the parties have executed this MOU as of the effective date. 4 652
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APPROVED AS TO FORM:

Randolph Hom
City Attorney
City of Cupertino
3\:

SANTA CLARA VALLEY WATER DISTRICT
David Brandt
City Manager
City of Cupertino
An independent special district created by the California Legislature AnthOnUicher
~~~
Sr. Assistant District Counsel
Santa Clara Valley Water District
5 Interim Chief Executive Officer
Santa Clara Valley Water District
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SCVWD ENACTED COPY
Contract Administraiio111 U1111it
.AGMT: ...S~_ Fil.IE: _o ...... t""' \a--_

FIRST AMENDMENT TO

MEMORANDUM OF UNDERSTANDING
#A4008s BETWEEN THE

SANT A CLARA VALLEY WATER DISTRICT

AND THE CITY OF CUPERTINO

FOR A LANDSCAPE CONVERSION REBATE PROGRAM
This First Amendment ("First Amendment") to Memorandum of Understanding A4008s ("MOU") between the Santa Clara Valley Water District ("WATER DISTRJCT") and the City of Cupertino ("CUPERTINO"), originally entered into on or about July I, 2016, is effective as of May 3, 2017 ("First Amendment Effective Date").

RECITALS
WHEREAS, Under the terms of the MOU, CUPERTINO agreed to supplement WATER DISTRICT's Landscape Conversion Program rebates granted to persons residing in the City of Cupertino ("MOU"); and WHEREAS, In addition to supplementing the WATER DISTRJCT's Landscape Conversion Program rebates, CUPERTINO also desires to supplement the WATER DISTRJCT's Graywater Laundry to Landscape rebates granted to persons residing in the City of Cupertino; and
WHEREAS, CUPERTINO and WATER DISTRJCT desire to extend the term of the MOU from December 31 , 2017 to the earlier of June 30, 2018, or when funds committed by CUPERTINO under this MOU are expended; and WHEREAS, CUPERTINO and WATER DISTRICT desire that CUPERTINO increase its payment obligation under the MOU from $ 115,000 to $120,000.

NOW, THEREFORE, the parties agree to amend the MOU as follows:

I. Delete the title of the MOU and replace with the following titl e:
"Memorandum of Understanding between the Santa Clara Valley Water District and the City of Cupertino for Water Conservation Landscape Conversion and Graywater Laundry to Landscape Programs"

2. In the MOU, delete the first paragraph, and replace with the following:
"This MEMORANDUM OF UNDERSTANDING (MOU) between the Santa Clara Valley Water District, an Independent special district created by the California Legislature (hereinafter referred to as "WATER DISTRICT") and the City of Cupertino (hereinafter referred to as "CUPERTINO") is effective as of July I, 2016 and sets forth the respective roles of the WATER DISTRICT and CUPERTINO in regard to the WATER

DISTRICT'S LANDSCAPE CONVERSION REBATE PROGRAM AND GRA YWATER LAUNDRY REBATE PROGRAM (hereinafter collectively referred to as the "PROGRAMS")."

3. Delete all of the Recitals in the MOU, replace them with the following Recitals:
"WHEREAS, the PROGRAMS involve providing Water Conservation Landscape Conversion Rebates and Graywater Laundry to Landscape Rebates for properties located within CUP ER TIN O's jurisdiction; and
WHEREAS, the PROGRAMS are appropriate measures for the Best Management Practices addressed in the California Urban Water Conservation Council's MOU regarding Urban Water Conservation in California; and
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WHEREAS, the WATER DISTRICT has established the PROGRAMS, in part, to provide financial incentive to remove existing turf lawns and to reuse graywater from clothes washers on landscape; and WHEREAS, CUPERTINO wishes to pa1ticipate in the PROGRAMS by providing additional financial incentives to Cupe1tino residents receiving grants from the PROGRAMS."

4. In the MOU, under Section 1, a), c) and e), replace each reference to "PROGRAM" with "PROGRAMS".

5. In the MOU, under Section 2, a) and c), replace each reference to "PROGRAM" with "PROGRAMS".

6. In the MOU, under Section 2, b), add an additional bullet which reads:
• Up to $200 for each completed, qualifying Graywater Laundry to Landscape system installed and eligible for a WATER DISTRICT rebate per the GRA YWATER LAUNDRY REBATE PROGRAM.

7. In the MOU, Section 2, c), delete the sentence in its entirety and replace with "CUPERTINO's obligation to pay for the PROGRAMS is capped at a total maximum of$120,000."

8. In the MOU, Section 5, delete the first sentence in its entirety and replace it with, "The Term of the MOU commences on July 1, 2016 and expires on June 30, 2018, or until funds are depleted, whichever occurs first." All of the terms and conditions of the MOU not modified by this First Amendment shall remain in full force and effect.

IN WITNESS THE EXECUTION HEREOF the parties agree that this First Amendment shall be effective as of the First Amendment Effective Date set forth above.

SANT A CLARA VALLEY WATER DISTRICT
an independent special district created by the California Legislature Approved as to form:

By: ___.ff!l:~~di ~ ~~~:::_

CITY OF CUPERTINO
Approved as to form:
)31: --L.... f?!0 ____ _
'
Randolph Hom
City Attorney
City of Cupertino
By:
~ Interim Chief Executive Officer
/-
) d
1 / v~
By: _ /,.,,./~-<--<-- __ / _ / _ _ /If ___ ___ _ David Brandt City Manager
City of Cupertino
M-.e.st: _ ~Jf-r::1h1
~w_ f'~'J.t"
C{~ ~
G_ ~ of- Ciy-Vf1'M.
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RESOLUTION NO. ________

A RESOLUTION OF THE CUPERTINO CITY COUNCIL AMENDING THE OPERATING BUDGET FOR FISCAL YEAR 2022-23 BY APPROPRIATING

MONIES FOR WATER CONSERVATION PROGRAMS
WHEREAS, the orderly administration of municipal government depends on a sound fiscal policy of maintaining a proper ratio of expenditures within anticipated revenues and available monies; and
WHEREAS, accomplishing City Council directives, projects and programs, and performing staff duties and responsibilities likewise depends on the monies available for that purpose; and
WHEREAS, the City Manager has determined that the balances from the funds specified in this resolution are adequate to cover the proposed amended appropriations, and therefore recommends the fund reallocations described herein.

NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby approve the recommended fund reallocations and ratifies the attached amended appropriations as set forth in Exhibit A.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 17th day of January, 2023, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Hung Wei, Mayor
City of Cupertino
________________________
Date
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Resolution No. ________

ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
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EXHIBIT A
Appropriation
Amendment by Fund
Appropriation
Amendment
Revenue
Amendment
Fund Balance
(Use of)
General Fund $77,500 $0 ($77,500)
Environmental
Management/Clean
Creek/Storm Drain Fund $12,500 $0 ($12,500)
Total Appropriation
Amendment All Funds $90,000 $0 ($90,000)
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CITY OF CUPERTINO
Agenda Item
22-11763 Agenda Date: 1/17/2023
Agenda #: 22.

Subject: Consider a resolution authorizing the City of Cupertino to take all necessary steps to accept $1,000,000 in specified grant funds from the Budget Act of 2022-2023 for the Jollyman Park AllInclusive Playground

1. Adopt Resolution No. 23-015 (Attachment A) authorizing the City of Cupertino to take all necessary steps to accept $1,000,000 in specified grant funds from the Budget Act of 2022-2023 for the Jollyman Park All-Inclusive Playground; and

2. Adopt Resolution No. 23-016 (Attachment B) approving budget modification no. 2223-251 increasing revenue for Jollyman All-Inclusive Playground (420-99-051, PVAR 007) by $1,000,000 CITY OF CUPERTINO Page 1 of 1 Printed on 1/11/2023
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CITY COUNCIL STAFF REPORT
Meeting: January 17, 2023
Subject
Consider adopting Resolution No. 23-XXX authorizing the City of Cupertino to take all necessary steps to accept $1,000,000 in specified grant funds from the Budget Act of 2022-2023 for the Jollyman Park All-Inclusive Playground.

Recommended Action

1. Adopt Resolution No. 23-XXX (Attachment A) authorizing the City of Cupertino to take all necessary steps to accept $1,000,000 in specified grant funds from the Budget Act of 2022-2023 for the Jollyman Park AllInclusive Playground; and

2. Adopt Resolution No. 23-XXX (Attachment B) approving budget modification no. 2223-251 increasing revenue for Jollyman All-Inclusive Playground (420-99- 051, PVAR 007) by $1,000,000.

Background
In 2018, the City conducted a feasibility study to determine which park sites would be suitable for an all-inclusive playground. The completed study selected Jollyman Park as the top location.

The County of Santa Clara (County) created a matching grant program - the All-Inclusive Playground Grant (AIPG) Program-to help fund the creation of All-Inclusive Playgrounds in this County. In October 2018, the City Council authorized staff to apply for the AIPG grant funding for a playground at Jollyman Park. The City’s application scored highly and was selected for a $1.448 million AIPG grant award. In May 2019, the City Council authorized staff to:
 Accept the grant award
 Execute associated documents, including a Funding Agreement  Allocate $1.2 million in City funds toward the project  Conduct fundraising for the balance of the cost
The funding agreement was executed thereafter, and the associated Capital Improvement Project (CIP) was included in the adopted Fiscal Year (FY) 2019-20 CIP. 669
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A Request for Proposals was issued in December 2019 for professional fundraising services for the Jollyman Park Playground, and the City selected Netzel Grigsby Associates to aid with these efforts. Upon evaluation of the fundraising goal, the consultant concluded that the original $2 million goal for the Playground was too high.

The City then modified the project by reducing the scope to reduce the fundraising goal to $1 million. A revised budget for the project was approved in March 2021 by the City Council as part of the FY 2021-22 Mid-Year Financial Report.

Discussion
The City sought multiple opportunities to help bridge the estimated funding gap. The grant secured with assistance of Assemblymember Low was a significant achievement towards exceeding the fundraising goal. In September, Resolution No. 22-115 was approved for accepting a $1 million in State funding.

The State Legislature has delegated the responsibility to the State Parks and Recreation Department for administering the grant and assigning the necessary documentation and procedures. As a procedural step to acquire the specified grant funds, the State Parks and Recreation Department requires that City Council adopt a Resolution delegating authority to the Public Works Director to sign and submit all documents, including applications, agreements, amendments, and payment requests. A resolution in the form required by the State Parks and Recreation Department is provided as Attachment A.

Sustainability Impact
Implementation of the Playground is consistent with the City’s sustainability goals. The project increases the level and diversity of services within walking distance of many homes. Improving amenities that walkers, people with strollers, and wheelchair users' access are consistent with the Climate Action Plan Goal 2 – Encourage Alternative Transportation.

California Environmental Quality Act (CEQA)
The project is categorically exempt from CEQA per CA type and section numbers:
15301(c), 15302(c), and 15304(a), (b), (e), and (f).

Fiscal Impact
The Project Budget (budget unit 420-99-051) has $4,532,235. The City spent $278,071 to date, leaving a remaining budget of $4,254,164 in the current fiscal year. The City will be the recipient of $1,448,201 in grant funds for Jollyman All-Inclusive Playground from a Santa Clara County AIPG grant. The City has also budgeted $2,084,034 for the project.

With the approval of the recommended actions, the City would receive $1,000,000 for construction of the playground and modify the budget by increasing the revenue by $1,000,000.
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SOURCE AMOUNT
City funds $2,084,034
County of Santa Clara AIPG $1,448,201
State Allocation (Specified Grant Funds) $1,000,000
TOTAL $4,532,235
_____________________________________
Prepared by: Evelyn Moran, Project Manager
Reviewed by: Susan Michael, Capital Improvement Programs Manager Reviewed by: Matt Morley, Director of Public Works
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Draft Resolution (Specified Grant Funds)
B – Draft Resolution (Capital Budget Amendment)
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Attachment A
RESOLUTION NO. ________

RESOLUTION OF THE CUPERTINO CITY COUNCIL APPROVING APPLICATION(S) FOR SPECIFIED GRANT FUNDS FROM THE BUDGET ACT OF 2022/23, CALIFORNIA STATE BUDGET, SECTION 19.56 (B)(1) (AB) $1,000,000 TO THE CITY OF CUPERTINO FOR THE JOLLYMAN PARK ALL-INCLUSIVE PLAYGROUND.

WHEREAS, the State Department of Parks and Recreation has been delegated the responsibility by the Legislature of the State of California for the administration of a grant to the City of Cupertino, setting up necessary procedures governing application(s); and
WHEREAS, said procedures established by the State Department of Parks and Recreation require the applicant’s Governing Body to certify by resolution the approval of project application(s) before submission of said applications to the State; and
WHEREAS the applicant will enter into a contract with the State of California to complete project(s);
NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby:

1. Certifies that the applicant has or will provide sufficient funds to operate and maintain the project(s); and

2. Approves the filing of project application(s) for specified grant project(s); and

3. Certifies that said applicant has or will have available, prior to commencement of project work utilizing specified grant funds, sufficient funds, including those provided by this grant, to complete the project; and

4. Certifies that the applicant has reviewed, understands, and agrees to the General Provisions contained in the contract shown in this Procedural Guide; and

5. Delegates the authority to the Director of Public Works, or designee to conduct all negotiations, sign and submit all documents, including, but not 672
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Attachment A
limited to applications, agreements, amendments, and payment requests, which may be necessary for the completion of the project scope(s); and

6. Agrees to comply with all applicable federal, state and local laws, ordinances, rules, regulations and guidelines.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 17th day of January, 2023, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Hung Wei, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk

________________________
Date
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Attachment B
RESOLUTION NO. ________

RESOLUTION OF THE CUPERTINO CITY COUNCIL AMENDING THE CAPITAL BUDGET FOR FISCAL YEAR 2022-23 BY APPROPRIATING AMONIES FOR THE

JOLLYMAN ALL-INCLUSIVE PLAYGROUND PROJECT
WHEREAS, the orderly administration of municipal government depends on a sound fiscal policy of maintaining a proper ratio of expenditures within anticipated revenues and available monies; and
WHEREAS, accomplishing City Council directives, projects and programs, and performing staff duties and responsibilities likewise depends on the monies available for that purpose; and
WHEREAS, the City Manager has determined that the balances from the funds specified in this resolution are adequate to cover the proposed amended appropriations, and therefore recommends the fund reallocations described herein.

NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby approve the recommended fund reallocations and ratifies the attached amended appropriations set forth in Exhibit A.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 17th day of January, 2023, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Hung Wei, Mayor
City of Cupertino
________________________
Date
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ATTEST:
________
Kirsten Squarcia, City Clerk

________________________
Date
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Exhibit A
Revenue Amendment Revenue
Capital Budget Funds 420-99-051 (Current) $25,000
Capital Budget Funds 420-99-051 (Revenue Amendment) $1,000,000 TOTAL $1,025,000
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CITY OF CUPERTINO
Agenda Item
22-11861 Agenda Date: 1/17/2023
Agenda #: 23.

Subject: Consider authorizing the Director of Public Works to reject all bids received for the Blackberry Farm Pool Improvements Capital Improvement Program (CIP) Project Authorize the Director of Public Works to reject all bids received for the Blackberry Farm Pool Improvements Project
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CITY COUNCIL STAFF REPORT
Meeting: 1/17/2023
Subject
Consider authorizing the Director of Public Works to reject all bids received for the Blackberry Farm Pool Improvements Capital Improvement Program (CIP) Project.

Recommended Action
Authorize the Director of Public Works to reject all bids received for the Blackberry Farm Pool Improvements Project.

Background
The Blackberry Farm Pools were originally purchased in 1991. The pools were reconditioned in 1995 and re-plastered in 2010. The industry standard is to have pools re-plastered or otherwise improved every eight to ten years. In 2019, $200,000 was allocated in the Facilities Operation Budget to replaster the pools. The project was advertised for bid on October 23, 2019. One bid was received in the amount of $469,000.

On December 3, 2019, Council rejected that bid, as it exceeded the available budget. As a result, the Director of Public Works was authorized to proceed with a project that had a reduced scope, which was related to deficiencies identified in the 2019 California Occupational Safety and Health Administration inspection report. The reduced scope, implemented in 2021-22, included spot repairs to resolve rust stains showing through the pool plaster. Making these repairs allowed the facility to continue operating.

Discussion
Following the 2019 project advertisement it was determined that the project would require an additional accessibility scope to bring the site into compliance with Americans with Disability Act and California Building Code standards. The revised Blackberry Farm Pool Improvement Project was included in the Fiscal Year (FY) 2021- 2022 CIP Budget, with an authorized project expenditure of $750,000. 678
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The project was advertised for bid on November 09, 2022, and the following bids were received December 5, 2022:

Bidder Bid Amount % Overestimate
Engineers Estimate $587,525.54
Western Water Features $890,031.61 51.5%
Tricon Aquatic Solutions $1,048,956.69 78.5%
Both bids significantly exceed the authorized expenditure. In reviewing the submitted bids, staff found that the proposed costs for project components directly related to pool improvements were comparable to the bid received in 2019. However, the proposed costs for the accessibility improvements greatly exceed the engineer’s estimate. Staff believes that by separating the accessibility items as a separate project and rebidding as two projects, significant cost savings can be achieved. To facilitate this, staff recommends that Council authorize the Director of Public Works to reject all bids.

With approval of the recommended action, staff will re-advertise as two separate projects, accessibility, and pool reconditioning. Because a minimum of 12 weeks is required for re-plastering the pools, it is not likely that this project work would complete prior to the 2023 swim season. The project schedule will be adjusted so that pool improvements begin immediately after the 2023 swim season. In consultation with maintenance staff, although not ideal, the pool reconditioning can wait until the end of the swim season.

Sustainability Impact
This action does not have any direct sustainability impact.

California Environmental Quality Act (CEQA)
The recommended action is not a project subject to CEQA.

Fiscal Impact
The FY 21-22 Budget allocated $750,000 for the Blackberry Farm Pool Improvements Project (budget unit 420-99-073 900-905.) Of that amount, $691,000 is currently available for construction and construction support services. No additional appropriations are requested at this time.
_____________________________________
Prepared by: Jo Anne Johnson, Project Manager
Reviewed by: Susan Michael, Capital Improvement Programs Manager Reviewed by: Matt Morley, Director of Public Works
Approved for Submission by: Pamela Wu, City Manager
Attachments:

None
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CITY OF CUPERTINO
Agenda Item
22-11745 Agenda Date: 1/17/2023
Agenda #: 24.

Subject: Consider award of a construction contract for the Wilson Park Basketball Court Project (Project No. 2022-11) for the construction of a new full-size outdoor basketball court, including associated improvements

1. Award a construction contract for the Wilson Park Basketball Court Project and authorize the City Manager to execute the contract in the amount of $299,474.00 with Guerra Construction Group;

2. Authorize the Director of Public Works to execute any necessary change orders up to a construction contingency amount of $29,947.40 (10 %) for a total authorized contract amount of $329,421.40; and

3. Adopt Resolution No. 23-017 approving budget modification #2223-248 increasing appropriations in the Capital Improvement Program Capital Projects Fund (budget unit 420-99-252) and the Capital Reserve (budget unit 420-99-001) by $160,000 including construction, contingency, construction management, inspection, and testing services
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CITY COUNCIL STAFF REPORT
Meeting: January 17, 2023
Subject
Consider award of a construction contract for the Wilson Park Basketball Court Project (Project No. 2022‐11) for the construction of a new full‐size outdoor basketball court, including associated improvements.

Recommended Action

1. Award a construction contract for the Wilson Park Basketball Court Project and authorize the City Manager to execute the contract in the amount of $299,474.00 with Guerra Construction Group;

2. Authorize the Director of Public Works to execute any necessary change orders up to a construction contingency amount of $29,947.40 (10%) for a total authorized contract amount of $329,421.40; and

3. Adopt Resolution No. 23‐xxx approving budget modification #2223‐248 increasing appropriations in the Capital Improvement Program Capital Projects Fund (budget unit 420‐99‐252) and the Capital Reserve (budget unit 420‐99‐001) by $160,000 including construction, contingency, construction management, inspection, and testing services.

Background
On February 18, 2020, the City Council approved the Parks and Recreation System Master Plan (Master Plan.) The Master Plan helps guide the City of Cupertino in enhancing recreation opportunities for all residents. The Master Plan started in 2015 with a robust community outreach and engagement process. Residents, stakeholders, partners, businesses, elected officials, and youth were invited to share their ideas for the park and recreation system. More than 2000 community members provided input and feedback through online and in‐person activities.

One of the key themes of the Master Plan is recreation variety. The community recommended adding varied facilities such as outdoor exercise equipment and moveable seating to City parks, as well as traditional elements, such as basketball courts.

Approximately 74% of questionnaire respondents believe that having a greater variety of facilities and programs is important.
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The outreach and engagement process also helped develop Master Plan goals. There are seven major Master Plan goals. Master Plan Goal #4 is enhancement, which emphasizes revitalizing parks and recreation facilities and diversifying offerings to support broad and inclusive recreation interests. It also emphasizes adding “new features and facilities at existing parks to create variety and respond to diverse recreation interests” and prioritizing “the addition of basketball courts, especially full‐size courts, to provide multiple basketball venues.” The Master Plan identified Wilson Park as a potential location for a full‐size basketball court.

On April 8, 2021, the Parks and Recreation Commission recommended Wilson Park as the ideal location for a full‐size outdoor basketball court. Currently, the park has two baseball fields, one soccer and baseball joint use field, and a playground. There are no basketball facilities at this park. This will be the only outdoor regulation size basketball court in the City’s park system.

Discussion
The Wilson Park Basketball Court Project will construct a new full‐size outdoor basketball court at Wilson Park. The proposed improvements would provide enhancement and variety to the facilities offered at the park. The basketball court will be located at the current site of an underutilized picnic area and separate but complimentary to other park facilities. The concurrent construction of the community gardens will not impact this project.

On December 6, 2022, the City received 12 bids for the project. The low bid was from Guerra Construction Group, which was approximately 14% below the Engineer’s Estimate.

Bidder Total Bid Amount
Guerra Construction Group $299,474.00
Central Pacific Engineering $314,495.00
Galeb Paving, Inc. $334,183.60
Tyman Construction, Inc. $342,131.00
Terocons, Inc. $346,743.75
Engineer’s Estimate $349,935
Silicon Valley Paving, Inc. $358,166.60
Frontline General Engineering Construction $388,483.19
Tri Valley Excavating Co., Inc. $427,032.00
Redgwick Construction Company $463,471.70
Villalobos & Associates Non‐responsive
VNH Builders Withdrawn
Michael Glynn Construction Services, Inc. Withdrawn
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Villalobos & Associates submitted a bid, but it was for another project and was deemed non‐responsive. Both VNH Builders and Michael Glynn Construction Service, Inc. have withdrawn their bids.

The bid submission from Guerra Construction Group was thoroughly reviewed for completeness and the contractor’s experience and qualifications are confirmed. It was determined that this bid is the lowest received, that the bid is responsive, and that the contractor is a responsible entity per the Instruction to Bidders and municipal code. The project is scheduled to begin construction in February or March.

The authorized contract amount requested for the project construction includes a 10% contingency. Contingency amounts are a typical contracting best practice. A contingency of between ten and twenty percent is normal, with more complicated or large projects justifying a higher percentage contingency amount, whereas a more straightforward or smaller projects can be managed with a smaller contingency. Staff recommends a ten percent contingency for this project as it is straight forward.

Sustainability Impact
No sustainability impact.

California Environmental Quality Act (CEQA)
This project is exempt from the CEQA under 14 C.C.R. Section 15301 (minor alterations to existing facilities).

Fiscal Impact
The Fiscal Year 2022‐2023 Capital Improvement Programs budget for the Wilson Park Basketball Court Project (budget unit 420‐99‐252) is $350,000, which includes $214,549 of grant funding. The budget is not adequate to implement the project due to overall increases in the cost of goods and services since the grant application was received. An additional appropriation of funds is requested in the amount of $160,000. The additional appropriations are to be funded by the Capital Reserve Fund through a transfer out of funds from (budget unit 420‐90‐001) and a transfer in to (budget unit 420‐99‐252.) In addition, revenues in the grant fund revenue category will increase by $36,597 to account for additional grant funds that were not included in the final budget. If approved, the total project budget will be $510,000 and the balance of the Capital Reserve is estimated at $9.6 million.
_____________________________________
Prepared by: Ayano Hattori, Project Manager
Reviewed by: Susan Michael, Capital Improvement Programs Manager Reviewed by: Matt Morley, Director of Public Works Department Approved for Submission by: Pamela Wu, City Manager
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Attachments:

A – Draft Contract
B – Draft Resolution
C – Bid Document Project Manual
D – Bid Document Project Drawings
E – Bid Document Addendum 1
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Wilson Park Basketball Court CONTRACT
Project No. 2022-11 Page 20
Contract
This public works contract (“Contract”) is entered into by and between City of Cupertino (“City”) and _________________________________________________ (“Contractor”), for work on the Wilson Park Basketball Court Project (“Project”).

The parties agree as follows:

1. Award of Contract. In response to the Notice Inviting Bids, Contractor has submitted a Bid Proposal to perform the Work to construct the Project. On _January 17_____, 2023_, City authorized award of this Contract to Contractor 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 Notice Inviting Bids;

2.2 Instructions to Bidders;

2.3 Addenda, if any;

2.4 Bid Proposal and attachments thereto;

2.5 Contract;

2.6 Payment and Performance Bonds;

2.7 General Conditions;

2.8 Special Conditions;

2.9 Project Plans and Specifications;

2.10 Change Orders, if any;

2.11 Notice of Potential Award;

2.12 Notice to Proceed; and

2.13 The following: No other documents

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. Contractor agrees to carry out its work in compliance with any applicable local, State or Federal order regarding COVID-19.

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 $___________________ (“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 Final Completion, within 90 calendar days from the commencement date given in the Notice to Proceed (“Contract Time”). By signing below, Contractor expressly waives any claim for delayed early completion.

6. Liquidated Damages. If Contractor fails to complete the Work within the Contract Time, City will assess liquidated damages in the amount of $1,500 per day for each day of Attachment A
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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.

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:

City of Cupertino
Department of Public Works
10300 Torre Avenue
Cupertino, CA 95014
Attn: Ayano Hattori
[email protected]
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Copy to: John Raaymakers
[email protected]
Contractor:

Name:_____________________________________
Address:___________________________________
City/State/Zip:_______________________________
Phone:_____________________________________
Attn:_______________________________________
Email:______________________________________
Copy to:____________________________________

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 Santa Clara 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 Santa Clara 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 Corporation Code § 313.

Guerra Construction Group
984 Memor Drive
Santa Clara, CA 95050
(408) 516 - 6555
Jaime Guerra
[email protected]
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The parties agree to this Contract as witnessed by the signatures below:

CITY: Approved as to form:
s/_______________________________ s/__________________________________ ________________________________ ___________________________________ Name, Title Name, Title
Date: ___________________________ Date: ______________________________ Attest:
s/_______________________________
_________________________________
Name, Title
Date: ___________________________
CONTRACTOR: ___________________________________________________ Business Name
s/_______________________________ Seal:
_________________________________
Name, Title
Date: ____________________________
Second Signature (See Section 12.8):
s/_______________________________
_________________________________
Name, Title
Date: ____________________________
___________________________________________________
Contractor’s California License Number(s) and Expiration Date(s)

END OF CONTRACT
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Attachment B
RESOLUTION NO. ________

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

AMENDING THE CAPITAL IMPROVEMENT BUDGET FOR FISCAL YEAR 2022-2023 BY APPROPRIATING MONIES FOR THE WILSON PARK

BASKETBALL COURT PROJECT
WHEREAS, the orderly administration of municipal government depends on a sound fiscal policy of maintaining a proper ratio of expenditures within anticipated revenues and available monies; and
WHEREAS, accomplishing City Council directives, projects, and programs and performing staff duties and responsibilities likewise depends on the monies available for that purpose; and
WHEREAS, the City Manager has determined that the balances from the funds specified in this resolution are adequate to cover the proposed amended appropriations, and therefore recommends the fund reallocations described herein.

NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby approve the recommended fund allocations and ratifies the attached amended appropriations as set forth in Exhibit A.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 17th day of January 2023, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:
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SIGNED:
________
Hung Wei, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
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Exhibit A
Fund Revenue Expenditure (Use of) Fund
Balance
420 $160,000 $160,000 $0
429 $0 $160,000 ($160,000)
TOTAL $160,000 $320,000 ($160,000)
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PUBLIC WORKS DEPARTMENT
10300 TORRE AVENUE
CUPERTINO, CALIFORNIA 95014

PROJECT MANUAL

FOR THE
Wilson Park Basketball Court Project
Bid Date: November 29, 2022
Project Number: 2022-11
Attachment C
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PROJECT MANUAL FOR

WILSON PARK BASKETBALL COURT PROJECT
PROJECT NO. 2022-11

APPROVED BY:
_________________________
Matt Morley
Director of Public Works
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PROJECT DIRECTORY
Project Name: Wilson Park Basketball Court
Project Number: 2022-11
Location: 19784 Wintergreen Drive, Cupertino, CA 95014
City Representative: City of Cupertino
Susan Michael
Public Works Department
10300 Torre Avenue
Cupertino, CA 95014
PH: (408) 777-1328
e-mail: [email protected]
Address for Stop Notices: City of Cupertino
Susan Michael
Public Works Department
10300 Torre Avenue
Cupertino, CA 95014
PH: (408) 777-1328
e-mail: [email protected]
Engineer of Record: MME Civil + Structural Engineering
Rodney Cahill, PE
224 Walnut Avenue, Suite B
Santa Cruz, CA 95060
PH: (831) 426-3186
e-mail: [email protected]

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SEALS PAGE
The Technical Specifications and Plans have been prepared by or under the direction of the following person(s).
10/27/2022
Rodney Cahill, P.E. Date
MME Civil + Structural Engineering
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TABLE OF CONTENTS
Notice Inviting Bids ....................................................................................................................... 1 Instructions to Bidders ................................................................................................................. 3 Bid Proposal ................................................................................................................................... 9 Bid Schedule ................................................................................................................................ 11 Subcontractor List ....................................................................................................................... 13 Noncollusion Declaration ........................................................................................................... 14 Bid Bond ....................................................................................................................................... 15 Bidder’s Questionnaire ............................................................................................................... 17 Contract ........................................................................................................................................ 20 Payment Bond .............................................................................................................................. 24 Performance Bond ...................................................................................................................... 26 General Conditions ..................................................................................................................... 28 Article 1 - Definitions ................................................................................................................... 28 Definitions .................................................................................................................................. 28 Article 2 - Roles and Responsibilities ....................................................................................... 31

2.1 City ................................................................................................................................ 31

2.2 Contractor ...................................................................................................................... 31

2.3 Subcontractors .............................................................................................................. 34

2.4 Coordination of Work ..................................................................................................... 34

2.5 Submittals ...................................................................................................................... 35

2.6 Shop Drawings .............................................................................................................. 36 Article 3 - Contract Documents .................................................................................................. 36

3.1 Interpretation of Contract Documents ........................................................................... 36

3.2 Order of Precedence ..................................................................................................... 37

3.3 Caltrans Standard Specifications .................................................................................. 38

3.4 For Reference Only ....................................................................................................... 38

3.5 Current Versions ........................................................................................................... 39

3.6 Conformed Copies ........................................................................................................ 39 Article 4 - Bonds, Indemnity, and Insurance ............................................................................ 39

4.1 Payment and Performance Bonds ................................................................................ 39

4.2 Indemnity ....................................................................................................................... 39

4.3 Insurance ....................................................................................................................... 40 Article 5 - Contract Time ............................................................................................................. 42

5.1 Time is of the Essence .................................................................................................. 42

5.2 Schedule Requirements ................................................................................................ 42

5.3 Delay and Extensions of Contract Time ........................................................................ 44

5.4 Liquidated Damages ..................................................................................................... 47 Article 6 - Contract Modification ................................................................................................ 48

6.1 Contract Modification. .................................................................................................... 48

6.2 Contractor Change Order Requests ............................................................................. 49

6.3 Adjustments to Contract Price ....................................................................................... 50

6.4 Unilateral Change Order ............................................................................................... 51

6.5 Non-Compliance Deemed Waiver ................................................................................. 51 Article 7 - General Construction Provisions ............................................................................. 51

7.1 Permits, Fees, Business License, and Taxes ............................................................... 51

7.2 Temporary Facilities ...................................................................................................... 51

7.3 Noninterference and Site Management ........................................................................ 52

7.4 Signs .............................................................................................................................. 52

7.5 Project Site and Nearby Property Protections............................................................... 52

7.6 Materials and Equipment ............................................................................................... 54

7.7 Substitutions .................................................................................................................. 54

7.8 Testing and Inspection .................................................................................................. 55 696
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7.9 Project Site Conditions and Maintenance ..................................................................... 56

7.10 Instructions and Manuals .............................................................................................. 57

7.11 As-built Drawings .......................................................................................................... 57

7.12 Existing Utilities ............................................................................................................. 58

7.13 Notice of Excavation ...................................................................................................... 58

7.14 Trenching and Excavations of Four Feet or More ......................................................... 59

7.15 Trenching of Five Feet or More ..................................................................................... 59

7.16 New Utility Connections ................................................................................................ 59

7.17 Lines and Grades. ......................................................................................................... 59

7.18 Historic or Archeological Items ...................................................................................... 60

7.19 Environmental Control ................................................................................................... 60

7.20 Noise Control. ................................................................................................................ 60

7.21 Mined Materials. ............................................................................................................ 60 Article 8 - Payment ...................................................................................................................... 61

8.1 Schedule of Values ....................................................................................................... 61

8.2 Progress Payments ....................................................................................................... 61

8.3 Adjustment of Payment Application .............................................................................. 61

8.4 Early Occupancy. .......................................................................................................... 62

8.5 Retention ....................................................................................................................... 62

8.6 Payment to Subcontractors and Suppliers .................................................................... 63

8.7 Final Payment ............................................................................................................... 63

8.8 Release of Claims ......................................................................................................... 64

8.9 Warranty of Title ............................................................................................................ 64 Article 9 - Labor Provisions ........................................................................................................ 64

9.1 Discrimination Prohibited ............................................................................................... 64

9.2 Labor Code Requirements ............................................................................................ 64

9.3 Prevailing Wages .......................................................................................................... 64

9.4 Payroll Records ............................................................................................................. 65

9.5 Labor Compliance ......................................................................................................... 65 Article 10 - Safety Provisions ..................................................................................................... 65

10.1 Safety Precautions and Programs ................................................................................ 65

10.2 Hazardous Materials ..................................................................................................... 66

10.3 Material Safety .............................................................................................................. 66

10.4 Hazardous Condition ..................................................................................................... 66

10.5 Emergencies ................................................................................................................. 67 Article 11 - Completion and Warranty Provisions .................................................................... 67

11.1 Final Completion ........................................................................................................... 67

11.2 Warranty ........................................................................................................................ 68

11.3 Use Prior to Final Completion ....................................................................................... 69

11.4 Substantial Completion ................................................................................................. 69 Article 12 - Dispute Resolution .................................................................................................. 69

12.1 Claims ............................................................................................................................ 69

12.2 Claims Submission ........................................................................................................ 70

12.3 City’s Response ............................................................................................................ 71

12.4 Meet and Confer ............................................................................................................ 72

12.5 Mediation and Government Code Claims ..................................................................... 72

12.6 Tort Claims .................................................................................................................... 73

12.7 Arbitration ...................................................................................................................... 73

12.8 Burden of Proof and Limitations .................................................................................... 73

12.9 Legal Proceedings ......................................................................................................... 73

12.10 Other Disputes .............................................................................................................. 73 Article 13 - Suspension and Termination .................................................................................. 73

13.1 Suspension for Cause ................................................................................................... 73

13.2 Suspension for Convenience ........................................................................................ 74

13.3 Termination for Default .................................................................................................. 74

13.4 Termination for Convenience ........................................................................................ 75 697
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13.5 Actions Upon Termination for Default or Convenience ................................................. 76 Article 14 - Miscellaneous Provisions ....................................................................................... 77

14.1 Assignment of Unfair Business Practice Claims ........................................................... 77

14.2 Provisions Deemed Inserted ......................................................................................... 77

14.3 Waiver ........................................................................................................................... 77

14.4 Titles, Headings, and Groupings ................................................................................... 77

14.5 Statutory and Regulatory References ........................................................................... 77

14.6 Survival. ......................................................................................................................... 77 Special Conditions ...................................................................................................................... 79 Technical Specifications ............................................................................................................. 85 Appendix A – Geotechnical Investigation (FOR REFERENCE ONLY) ................................. 187

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Wilson Park Basketball Court NOTICE INVITING BIDS
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Notice Inviting Bids

1. Bid Submission. City of Cupertino (“City”) will accept electronically submitted bids for its WILSON PARK BASKETBALL COURT PROJECT (“Project”), by or before November 29, 2022, at 2:00 p.m., via electronic submission to the City’s “Business Opportunities” online portal in the manner set forth in Section 1 of the Instructions to Bidders, at which time the bids will be opened by the City.

2. Project Information.

2.1 Location and Description. The Project is located at 19784 Wintergreen Drive, Cupertino, CA 95014, and is described as follows:

Installation of a new full-size outdoor basketball court, walkway, storm drainage system, and associated improvements.

2.2 Time for Final Completion. The Project must be fully completed within 90 calendar days from the start date set forth in the Notice to Proceed. City anticipates that the Work will begin on or about January 16, 2023, but the anticipated start date is provided solely for convenience and is neither certain nor binding.

3. License and Registration Requirements.

3.1 License. This Project requires a valid California contractor’s license for the following classification(s): Class A-General Engineering Contractor.

3.2 DIR Registration. City may not accept a Bid Proposal from or enter into the Contract with a bidder, without proof that the bidder is registered with the California Department of Industrial Relations (“DIR”) to perform public work pursuant to Labor Code § 1725.5, subject to limited legal exceptions.

4. Contract Documents. The plans, specifications, bid forms and contract documents for the Project, and any addenda thereto (“Contract Documents”) may be downloaded from City’s website located at: https://apps.cupertino.org/bidmanagement/index.aspx. A printed copy of the Contract Documents are not available.

5. Bid Security. Each bidder must submit bid security equal to ten percent of the maximum bid amount, in the form of a cashier’s or certified check made payable to City, or a bid bond executed by a surety licensed to do business in the State of California on the Bid Bond form included with the Contract Documents, in the manner set forth in Section 4 of the Instructions to Bidders. The bid security must guarantee that within ten days after City issues the Notice of Potential Award, the successful bidder will execute the Contract and submit the payment and performance bonds, insurance certificates and endorsements, and any other submittals required by the Contract Documents and as specified in the Notice of Potential Award.

6. Prevailing Wage Requirements.

6.1 General. Pursuant to California Labor Code § 1720 et seq., 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.

6.2 Rates. These prevailing rates are on file with the City and are available online at http://www.dir.ca.gov/DLSR. Each Contractor and Subcontractor must pay no less 699
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than the specified rates to all workers employed to work on the Project. The schedule of per diem wages is based upon a working day of eight hours. The rate for holiday and overtime work must be at least time and one-half.

6.3 Compliance. The Contract will be subject to compliance monitoring and enforcement by the DIR, under Labor Code § 1771.4.

7. Performance and Payment Bonds. The successful bidder will be required to provide performance and payment bonds, each for 100% of the Contract Price, as further specified in the Contract Documents.

8. Substitution of Securities. Substitution of appropriate securities in lieu of retention amounts from progress payments is permitted under Public Contract Code § 22300.

9. Subcontractor List. Each Subcontractor must be registered with the DIR to perform work on public projects. Each bidder must submit a completed Subcontractor List form with its Bid Proposal, including the name, location of the place of business, California contractor license number, DIR registration number, and percentage of the Work to be performed (based on the base bid price) for each Subcontractor that will perform Work or service or fabricate or install Work for the prime contractor in excess of one-half of 1% of the bid price, using the Subcontractor List form included with the Contract Documents.

10. Instructions to Bidders. All bidders should carefully review the Instructions to Bidders for more detailed information before submitting a Bid Proposal. The definitions provided in Article 1 of the General Conditions apply to all of the Contract Documents, as defined therein, including this Notice Inviting Bids.

By: ___________________________________ Date: ________________ Kirsten Squarcia, City Clerk
Publication Date: ___________________

END OF NOTICE INVITING BIDS
11/4/22
11/11/22 & 11/18/22
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Instructions to Bidders
Each Bid Proposal submitted to the City of Cupertino (“City”) for its Wilson Park Basketball Court Project (“Project”) must be submitted in accordance with the following instructions and requirements:

1. Bid Submission.

1.1 General. Each Bid Proposal must be signed and submitted to City, using the form provided in the Contract Documents, by or before the date and time set forth in Section 1 of the Notice Inviting Bids, or as amended by subsequent addendum, via electronic submission only as specified below in Section 1.2. Faxed, handdelivered, mailed, or emailed Bid Proposals will not be accepted, unless otherwise specified. Late submissions will not be considered. City reserves the right to postpone the date or time for receiving or opening bids. Each bidder is solely responsible for all of its costs to prepare and submit its bid and by submitting a bid waives any right to recover those costs from City. The bid price(s) must include all costs to perform the Work as specified, including all labor, material, supplies, and equipment and all other direct or indirect costs such as applicable taxes, insurance and overhead.

1.2 Electronic Submission. The Bid Proposal and all required forms and attachments must be submitted in PDF format on the City’s “Business Opportunities” portal at https://apps.cupertino.org/bidmanagement/index.aspx. To submit a bid, (1) select the folder icon in the “Actions” column for the Project; (2) select the “Electronic Submission” tab; (3) when the log-in screen appears, enter the log-in credentials used to access the Contract Documents and/or create an account, as appropriate; (4) after logging in, carefully follow all instructions for electronic submission of the Bid Proposal and all required forms and attachments.

Each bidder should familiarize itself with the City’s “Business Opportunities” portal before the bid deadline. Electronic submission may take more time than anticipated. Each bidder should plan accordingly and afford itself ample time to upload its bid. Bids that are in the process of uploading but are not completely uploaded by the bid deadline will be automatically rejected by the portal. The portal will not allow submission after the bid deadline. On the next Working Day following the bid opening, the City will post the bid results to
https://apps.cupertino.org/bidmanagement/index.aspx.

1.3 DIR Registration. Subject to limited legal exceptions for joint venture bids and federally-funded projects, City may not accept a Bid Proposal from a bidder without proof that the bidder is registered with the DIR to perform public work under Labor Code § 1725.5. If City is unable to confirm that the bidder is currently registered with the DIR, City may disqualify the bidder without opening its bid. (Labor Code §§ 1725.5 and 1771.1(a).)

2. Bid Proposal Form and Enclosures. Each Bid Proposal must be completed legibly using the Bid Proposal form included with the Contract Documents. The Bid Proposal form must be fully completed without interlineations, alterations, or erasures. Any necessary corrections must be clear and legible and must be initialed by the bidder’s authorized representative. A Bid Proposal submitted with exceptions or terms such as “negotiable,” “will negotiate,” or similar, will be considered nonresponsive. Each Bid Proposal must be accompanied by a completed Subcontractor List and Non-Collusion Declaration using the forms included with the Contract Documents, a PDF copy of the bid security, and any additional forms required by the Notice Inviting Bids or Instructions to Bidders. In addition to 701
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submitting a PDF copy of the bid security, each bidder must also send the original form of bid security to the City, as set forth in Section 4, below.

3. Authorization and Execution. Each Bid Proposal must be signed by the bidder’s authorized representative. A Bid Proposal submitted by a partnership must be signed in the partnership name by a general partner with authority to bind the partnership. A Bid Proposal submitted by a corporation must be signed with the legal name of the corporation, followed by the signature and title of two officers of the corporation with full authority to bind the corporation to the terms of the Bid Proposal, under California Corporation Code § 313.

4. Bid Security. Each bid must be guaranteed by bid security of ten percent of the maximum bid amount, in the form of a cashier’s or certified check made payable to the City, or bid bond using the form included in the Contract Documents and executed by a surety licensed to do business in the State of California.

4.1 Form of Security and Submission. In addition to submitting a PDF copy of the bid security, the wet-inked original bid bond, cashier’s or certified check, must be sent to the City via U.S. Mail or a reliable overnight delivery service in a sealed envelope addressed to City of Cupertino, Office of the City Clerk, 10300 Torre Avenue, Cupertino, CA 95014 and clearly labeled with the bidder’s legal name and address, the Project title, and date and time of the bid deadline. The envelope containing the original form of bid security must be postmarked or otherwise dated to show that it was submitted to the United States Postal Service or overnight delivery service by or before the date of the bid deadline.

4.2 Bid Guarantee. The bid security must guarantee that, within ten days after issuance of the Notice of Potential Award, the bidder will: execute and submit the enclosed Contract for the bid price; submit payment and performance bonds for 100% of the maximum Contract Price; and submit the insurance certificates and endorsements and any other submittals, if any, required by the Contract Documents or the Notice of Potential Award. A Bid Proposal may not be withdrawn for a period of 60 days after the bid opening without forfeiture of the bid security, except as authorized for material error under Public Contract Code § 5100 et seq.

5. Requests for Information. Questions or requests for clarifications regarding the Project, the bid procedures, or any of the Contract Documents must be submitted in writing to Susan Michael, Public Works CIP Manager, at [email protected]. Oral responses are not authorized and are not binding on the City. Bidders should submit any such written inquiries at least five Working Days before the scheduled bid opening. Questions received any later might not be addressed before the bid deadline. An interpretation or clarification by City in response to a written inquiry will be issued in an addendum.

6. Pre-Bid Investigation.

6.1 General. Each bidder is solely responsible at its sole expense for diligent and thorough review of the Contract Documents, examination of the Project site, and reasonable and prudent inquiry concerning known and potential site and area conditions prior to submitting a Bid Proposal. Each bidder is responsible for knowledge of conditions and requirements which reasonable review and investigation would have disclosed. However, except for any areas that are open to the public at large, bidders may not enter property owned or leased by the City or the Project site without prior written authorization from City.

6.2 Document Review. Each bidder is responsible for review of the Contract Documents and any informational documents provided “For Reference Only,” e.g., 702
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as-builts, technical reports, test data, and the like. A bidder is responsible for notifying City of any errors, omissions, inconsistencies, or conflicts it discovers in the Contract Documents, acting solely in its capacity as a contractor and subject to the limitations of Public Contract Code § 1104. Notification of any such errors, omissions, inconsistencies, or conflicts must be submitted in writing to the City no later than five Working Days before the scheduled bid opening. (See Section 5, above.) City expressly disclaims responsibility for assumptions a bidder might draw from the presence or absence of information provided by City.

6.3 Project Site. Questions regarding the availability of soil test data, water table elevations, and the like should be submitted to the City in writing, as specified in Section 5, above. Any subsurface exploration at the Project site must be done at the bidder’s expense, but only with prior written authorization from City. All soil data and analyses available for inspection or provided in the Contract Documents apply only to the test hole locations. Any water table elevation indicated by a soil test report existed on the date the test hole was drilled. The bidder is responsible for determining and allowing for any differing soil or water table conditions during construction. Because groundwater levels may fluctuate, difference(s) in elevation between ground water shown in soil boring logs and ground water actually encountered during Project construction will not be considered changed Project site conditions. Actual locations and depths must be determined by bidder’s field investigation. The bidder may request access to underlying or background information on the Project site in City’s possession that is necessary for the bidder to form its own conclusions, including, if available, record drawings or other documents indicating the location of subsurface lines, utilities, or other structures.

6.4 Utility Company Standards. The Project must be completed in a manner that satisfies the standards and requirements of any affected utility companies or agencies (collectively, “utility owners”). The successful bidder may be required by the third party utility owners to provide detailed plans prepared by a California registered civil engineer showing the necessary temporary support of the utilities during coordinated construction work. Bidders are directed to contact the affected third party utility owners about their requirements before submitting a Bid Proposal.

7. Bidders Interested in More Than One Bid. No person, firm, or corporation may submit or be a party to more than one Bid Proposal unless alternate bids are specifically called for.

However, a person, firm, or corporation that has submitted a subcontract proposal or quote to a bidder may submit subcontract proposals or quotes to other bidders.

8. Addenda. Any addenda issued prior to the bid opening are part of the Contract Documents. Subject to the limitations of Public Contract Code § 4104.5, City reserves the right to issue addenda prior to bid time. Each bidder is solely responsible for ensuring it has received and reviewed all addenda prior to submitting its bid. Bidders should check City’s website periodically for any addenda or updates on the Project at:
http://www.apps.cupertino.org/bidmanagment/index.aspx.

9. Brand Designations and “Or Equal” Substitutions. Any specification designating a material, product, thing, or service by specific brand or trade name, followed by the words “or equal,” is intended only to indicate quality and type of item desired, and bidders may request use of any equal material, product, thing, or service. All data substantiating the proposed substitute as an equal item must be submitted with the written request for substitution. A request for substitution must be submitted within 35 days after Notice of Potential Award unless otherwise provided in the Contract Documents. This provision does not apply to materials, products, things, or services that may lawfully be designated by a specific brand or trade name under Public Contract Code § 3400(c). 703
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10. Bid Protest. Any bid protest against another bidder must be submitted in writing and received by City at 10300 Torre Avenue, Cupertino CA 95014 or sent via email at [email protected] before 5:00 p.m. no later than two Working Days following the date upon which the City posts the bid results (“Bid Protest Deadline”) and must comply with the following requirements:

10.1 General. Only a bidder who has actually submitted a Bid Proposal is eligible to submit a bid protest against another bidder. Subcontractors are not eligible to submit bid protests. A bidder may not rely on the bid protest submitted by another bidder, but must timely pursue its own protest. If required by City, the protesting bidder must submit a non-refundable fee in the amount specified by City, based upon City’s reasonable costs to administer the bid protest. Any such fee must be submitted to City no later than the Bid Protest Deadline, unless otherwise specified.

For purposes of this Section 10, a “Working Day” means a day that City is open for normal business, and excludes weekends and holidays observed by City. Pursuant to Public Contract Code § 4104, inadvertent omission of a Subcontractor’s DIR registration number on the Subcontractor List form is not grounds for a bid protest, provided it is corrected within 24 hours of the bid opening or as otherwise provided under Labor Code § 1771.1(b).

10.2 Protest Contents. The bid protest must contain a complete statement of the basis for the protest and must include all supporting documentation. Material submitted after the Bid Protest Deadline will not be considered. The protest must refer to the specific portion or portions of the Contract Documents upon which the protest is based. The protest must include the name, address, email address, and telephone number of the protesting bidder and any person submitting the protest on behalf of or as an authorized representative of the protesting bidder.

10.3 Copy to Protested Bidder. Upon submission of its bid protest to City, the protesting bidder must also concurrently transmit the protest and all supporting documents to the protested bidder, and to any other bidder who has a reasonable prospect of receiving an award depending upon the outcome of the protest, by email or hand delivery to ensure delivery before the Bid Protest Deadline.

10.4 Response to Protest. The protested bidder may submit a written response to the protest, provided the response is received by City before 5:00 p.m., within two Working Days after the Bid Protest Deadline or after actual receipt of the bid protest, whichever is sooner (the “Response Deadline”). The response must attach all supporting documentation. Material submitted after the Response Deadline will not be considered. The response must include the name, address, email address, and telephone number of the person responding on behalf of or representing the protested bidder if different from the protested bidder.

10.5 Copy to Protesting Bidder. Upon submission of its response to the bid protest to the City, the protested bidder must also concurrently transmit by email or hand delivery, by or before the Response Deadline, a copy of its response and all supporting documents to the protesting bidder and to any other bidder who has a reasonable prospect of receiving an award depending upon the outcome of the protest.

10.6 Exclusive Remedy. The procedure and time limits set forth in this Section are mandatory and are the bidder’s sole and exclusive remedy in the event of a bid protest. A bidder’s failure to comply with these procedures will constitute a waiver 704
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of any right to further pursue a bid protest, including filing a Government Code Claim or initiation of legal proceedings.

10.7 Right to Award. City reserves the right, acting in its sole discretion, to reject any bid protest that it determines lacks merit, to award the Contract to the bidder it has determined to be the responsible bidder submitting the lowest responsive bid, and to issue a Notice to Proceed with the Work notwithstanding any pending or continuing challenge to its determination.

11. Reservation of Rights. City reserves the unfettered right, acting in its sole discretion, to waive or to decline to waive any immaterial bid irregularities; to accept or reject any or all bids; to cancel or reschedule the bid; to postpone or abandon the Project entirely; or to perform all or part of the Work with its own forces. The Contract will be awarded, if at all, within 60 days after opening of bids or as otherwise specified in the Special Conditions, to the responsible bidder that submitted the lowest responsive bid. Any planned start date for the Project represents the City’s expectations at the time the Notice Inviting Bids was first issued. City is not bound to issue a Notice to Proceed by or before such planned start date, and it reserves the right to issue the Notice to Proceed when the City determines, in its sole discretion, the appropriate time for commencing the Work. The City expressly disclaims responsibility for any assumptions a bidder might draw from the presence or absence of information provided by the City in any form. Each bidder is solely responsible for its costs to prepare and submit a bid, including site investigation costs.

12. Bonds. Within ten calendar days following City’s issuance of the Notice of Potential Award to the apparent low bidder, the bidder must submit payment and performance bonds to City as specified in the Contract Documents using the bond forms included in the Contract Documents. All required bonds must be calculated on the maximum total Contract Price as awarded, including additive alternates, if applicable.

13. License(s). The successful bidder and its Subcontractor(s) must possess the California contractor’s license(s) in the classification(s) required by law to perform the Work. The successful bidder must also obtain a City business license within 5 days following City’s issuance of the Notice of Potential Award. Subcontractors must also obtain a City business license before performing any Work.

14. Ineligible Subcontractor. Any Subcontractor who is ineligible to perform work on a public works project under Labor Code §§ 1777.1 or 1777.7 is prohibited from performing work on the Project.

15. Safety Orders. If the Project includes construction of a pipeline, sewer, sewage disposal system, boring and jacking pits, or similar trenches or open excavations, which are five feet or deeper, each bid must include a bid item for adequate sheeting, shoring, and bracing, or equivalent method, for the protection of life or limb, which comply with safety orders as required by Labor Code § 6707.

16. Subcontractor Work Limits. The prime contractor must perform at least 51% of the Work on the Project, calculated as a percentage of the base bid price, with its own forces, except for any Work identified as “Specialty Work” in the Contract Documents. The total bid amount for any such Specialty Work, as shown on the Bid Schedule, may be deducted from the base bid price before computing the 51% self-performance requirement. The remaining Work may be performed by qualified Subcontractor(s).

17. Additive and Deductive Alternates. As required by Public Contract Code § 20103.8, if this bid solicitation includes additive or deductive items, the method checked below will be used to determine the lowest bid. If no method is checked, subparagraph (A) will be used to 705
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determine the lowest bid. City retains the right to add to or deduct from the Contract any of the additive or deductive alternates included in the Bid Proposal. (A) The lowest bid will be the lowest bid price on the base contract without consideration of the prices on the additive or deductive items.

X (B) The lowest bid will be the lowest total of the bid prices on the base contract and those additive or deductive items that were specifically identified in the bid solicitation or Bid Proposal as being used for the purpose of determining the lowest bid price. _____ (C) The lowest bid will be the lowest total of the bid prices on the base contract and those additive or deductive items taken in order from a specifically identified list of those items that, when in the solicitation, and added to, or subtracted from, the base contract, are less than, or equal to, a funding amount publicly disclosed by City before the first bid is opened. _____ (D) The lowest bid will be determined in a manner that prevents any information that would identify any of the bidders or the proposed subcontractors or suppliers from being revealed to City before the ranking of all bidders from lowest to highest has been determined.

18. Bid Schedule. Each bidder must complete the Bid Schedule form with unit prices as indicated, and submit the completed Bid Schedule with its Bid Proposal.

18.1 Incorrect Totals. In the event a computational error for any bid item (base bid or alternate) results in an incorrect extended total for that item, the submitted base bid or bid alternate total will be adjusted to reflect the corrected amount as the product of the estimated quantity and the unit cost. In the event of a discrepancy between the actual total of the itemized or unit prices shown on the Bid Schedule for the base bid, and the amount entered as the base bid on the Bid Proposal form, the actual total of the itemized or unit prices shown on the Bid Schedule for the base bid will be deemed the base bid price. Likewise, in the event of a discrepancy between the actual total of the itemized or unit prices shown on the Bid Schedule for any bid alternate, and the amount entered for the alternate on the Bid Proposal form, the actual total of the itemized prices shown on the Bid Schedule for that alternate will be deemed the alternate price. Nothing in this provision is intended to prevent a bidder from requesting to withdraw its bid for material error under Public Contract Code § 5100 et seq.

18.2 Estimated Quantities. The quantities shown on the Bid Schedule are estimated and the actual quantities required to perform the Work may be greater or less than the estimated amount. The Contract Price will be adjusted to reflect the actual quantities required for the Work based on the itemized or unit prices provided in the Bid Schedule, with no allowance for anticipated profit for quantities that are deleted or decreased, and no increase in the unit price, and without regard to the percentage increase or decrease of the estimated quantity and the actual quantity.

19. Bidder’s Questionnaire. A completed, signed Bidder’s Questionnaire using the form provided with the Contract Documents and including all required attachments must be submitted within 48 hours following a request by City. A bid that does not fully comply with this requirement may be rejected as nonresponsive. A bidder who submits a Bidder’s Questionnaire which is subsequently determined to contain false or misleading information, or material omissions, may be disqualified as non-responsible.

END OF INSTRUCTIONS TO BIDDERS
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Wilson Park Basketball Court BID PROPOSAL
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Bid Proposal
Wilson Park Basketball Court Project
______________________________________________________ (“Bidder”) hereby submits this Bid Proposal to City of Cupertino (“City”) for the above-referenced project (“Project”) in response to the Notice Inviting Bids and in accordance with the Contract Documents referenced in the Notice.

1. Base Bid. Bidder proposes to perform and fully complete the Work for the Project as specified in the Contract Documents, within the time required for full completion of the Work, including all labor, materials, supplies, and equipment and all other direct or indirect costs including, but not limited to, taxes, insurance and all overhead for the following price (“Base Bid”):
$_______________________________________________________

2. Bid Alternate. Bidder submits the following prices for the specified bid alternate:

Bid Alternate No. 1: Court and Walkway Lime Treated Sub-base Add/Deduct: $__________________________________

3. Addenda. Bidder agrees that it has confirmed receipt of or access to, and reviewed, all addenda issued for this Bid. Bidder waives any claims it might have against the City based on its failure to receive, access, or review any addenda for any reason. Bidder specifically acknowledges receipt of the following addenda:

Addendum: Date Received: Addendum: Date Received:
#01 _____________ #05 _____________
#02 _____________ #06 _____________
#03 _____________ #07 _____________
#04 _____________ #08 _____________

4. Bidder’s Certifications and Warranties. By signing and submitting this Bid Proposal, Bidder certifies and warrants the following:

4.1 Examination of Contract Documents. Bidder has thoroughly examined the Contract Documents and represents that, to the best of Bidder’s knowledge, there are no errors, omissions, or discrepancies in the Contract Documents, subject to the limitations of Public Contract Code § 1104.

4.2 Examination of Worksite. Bidder has had the opportunity to examine the Worksite and local conditions at the Project location.

4.3 Bidder Responsibility. Bidder is a responsible bidder, with the necessary ability, capacity, experience, skill, qualifications, workforce, equipment, and resources to perform or cause the Work to be performed in accordance with the Contract Documents and within the Contract Time.

4.4 Responsibility for Bid. Bidder has carefully reviewed this Bid Proposal and is solely responsible for any errors or omissions contained in its completed Bid. All statements and information provided in this Bid Proposal and enclosures are true and correct to the best of Bidder’s knowledge.

4.5 Nondiscrimination. In preparing this Bid, the Bidder has not engaged in discrimination against any prospective or present employee or Subcontractor on grounds of race, color, ancestry, national origin, ethnicity, religion, sex, sexual orientation, age, disability, or marital status.
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4.6 Iran Contracting Act. If the Contract Price exceeds $1,000,000, Bidder 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.

5. Award of Contract. By signing and submitting this Bid Proposal, Bidder agrees that if Bidder is awarded the Contract for the Project, within ten days following issuance of the Notice of Potential Award to Bidder, Bidder will do all of the following:

5.1 Execute Contract. Enter into the Contract with City in accordance with the terms of this Bid Proposal, by signing and submitting to City the Contract prepared by City using the form included with the Contract Documents;

5.2 Submit Required Bonds. Submit to City a payment bond and a performance bond, each for 100% of the Contract Price, using the bond forms provided and in accordance with the requirements of the Contract Documents; and

5.3 Insurance Requirements. Submit to City the insurance certificate(s) and endorsement(s) as required by the Contract Documents.

6. Bid Security. As a guarantee that, if awarded the Contract, Bidder will perform its obligations under Section 4 above, Bidder is enclosing bid security in the amount of ten percent of its maximum bid amount in one of the following forms (check one):
____ A cashier’s check or certified check payable to City and issued by _______________________________ [Bank name] in the amount of $______________________________________________________. ____ A bid bond, using the Bid Bond form included with the Contract Documents, payable to City and executed by a surety licensed to do business in the State of California.

This Bid Proposal is hereby submitted on _________________________, 20__. s/ ___________________________________ ______________________________________ Name and Title
s/ ___________________________________ ______________________________________ [See Section 3 of Instructions to Bidders] Name and Title _____________________________________ ______________________________________ Company Name License #, Expiration Date, and Classification _____________________________________ ______________________________________ Address DIR Registration #
_____________________________________ ______________________________________ City, State, Zip Phone
_____________________________________ ______________________________________ Contact Name Contact Email

END OF BID PROPOSAL
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Wilson Park Basketball Court BID SCHEDULE
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Bid Schedule
This Bid Schedule must be completed in ink and included with the sealed Bid Proposal. Pricing must be provided for each Bid Item as indicated. Items marked “(SW)” are Specialty Work that must be performed by a qualified Subcontractor. The lump sum or unit cost for each item must be inclusive of all costs, whether direct or indirect, including profit and overhead. The sum of all amounts entered in the “Extended Total Amount” column must be identical to the Base Bid price entered in Section 1 of the Bid Proposal form.

AL = Allowance CF = Cubic Feet CY = Cubic Yard EA = Each LB = Pounds LF = Linear Foot LS = Lump Sum SF = Square Feet TON = Ton (2000 lbs) BID
ITEM
NO.

ITEM DESCRIPTION EST. QTY. UNIT UNIT
COST

EXTENDED

TOTAL AMOUNT

BASE BID
1 Mobilization 1 LS $ $
2 Modify Irrigation 1 LS $ $
3 Clearing and Grubbing 1 LS $ $
4 Temporary Construction
Fencing 1 LS $ $
5 Temporary Drainage Inlet
Protection 1 EA $ $
6 Remove Existing Drainage Inlet
and Piping 1 LS $ $
7 Remove Asphalt Walkway 910 SF $ $
8 Court and Walkway Excavation 925 CY $ $
9 Imported Engineered Fill 799 CY $ $
10 Class 2 Aggregate Base 119 CY $ $
11 Minor Concrete Walkway 1,205 SF $ $
12 Contour Grading Backfill 925 CY $ $
13 Hot Mix Asphalt (Type A) 128 TON $ $
14 Concrete Mowband 308 LF $ $
15 24” CIDH Pier 2 EA $ $
16 Drainage Swale with
Underdrain, Inlet, & Cleanouts 1 LS $ $
17 Basketball Hoop Equipment 2 EA $ $
18 Surface Paint System 6,000 SF $ $
19 Line Marking 1 LS $ $
20 Hydroseed Disturbed Areas 1 LS $ $
TOTAL BASE BID: Items 1 through 20 inclusive: $___________________________________________ Note: The amount entered as the “Total Base Bid” should be identical to the Base Bid amount entered in Section 1 of the Bid Proposal form.
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BID
ITEM
NO.

ITEM DESCRIPTION EST.

QTY. UNIT UNIT COST

EXTENDED TOTAL
AMOUNT
ALTERNATE NO. 1 BID
A-1.1 Deduct Court and Walkway
Excavation 785 CY $ $
A-1.2 Deduct Contour Grading Backfill 785 CY $ $
A-1.3 Deduct Imported Engineered Fill 799 CY $ $
A-1.4 Court and Walkway Lime Treated
Sub-Base 599 CY $ $
TOTAL BID ALTERNATE NO. 1: Items A-1.1 through A-1.4 inclusive: $___________________________ Note: The amount entered as the “Total Bid Alternate No. 1” should be identical to the Bid Alternate amount entered in Section 1 of the Bid Proposal form.

BIDDER NAME: ________________________________________________________________

END OF BID SCHEDULE
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Wilson Park Basketball Court SUBCONTRACTOR LIST
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Subcontractor List
For each Subcontractor that will perform a portion of the Work in an amount in excess of one-half of 1% of the Bidder’s total Contract Price,1 the bidder must list a description of the Work, the name of the Subcontractor, its California contractor license number, the location of its place of business, its DIR registration number, and the portion of the Work that the Subcontractor is performing based on a percentage of the Base Bid price.

DESCRIPTION

OF WORK

SUBCONTRACTOR
NAME

CALIFORNIA

CONTRACTOR
LICENSE NO.

LOCATION OF

BUSINESS
DIR REG. NO. PERCENT
OF
WORK

END OF SUBCONTRACTOR LIST
1 For street or highway construction this requirement applies to any subcontract of $10,000 or more. 711
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Wilson Park Basketball Court NONCOLLUSION DECLARATION
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Noncollusion Declaration

TO BE EXECUTED BY BIDDER AND SUBMITTED WITH BID
The undersigned declares:

I am the __________________________ [title] of _____________________________________ [business name], the party making the foregoing bid.

The bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation. The bid is genuine and not collusive or sham.

The bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid. The bidder has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or to refrain from bidding. The bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder. All statements contained in the bid are true. The bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, or to any member or agent thereof, to effectuate a collusive or sham bid, and has not paid and will not pay, any person or entity for such purpose.

This declaration is intended to comply with California Public Contract Code § 7106 and Title 23 U.S.C § 112.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on _______________ [date], at __________________________________ [city], _______ [state]. s/________________________________________
__________________________________________
Name [print]

END OF NONCOLLUSION DECLARATION
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Wilson Park Basketball Court BID BOND
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Bid Bond
________________________________________________________ (“Bidder”) has submitted a bid, dated ___________________________, 20______ (“Bid”), to City of Cupertino (“City”) for work on the Wilson Park Basketball Court Project (“Project”). Under this duly executed bid bond (“Bid Bond”), Bidder as Principal and _______________________________________________, its surety (“Surety”), are bound to City as obligee in the penal sum of ten percent of the maximum amount of the Bid (the “Bond Sum”). Bidder and Surety bind themselves and their respective heirs, executors, administrators, successors and assigns, jointly and severally, as follows:

1. General. If Bidder is awarded the Contract for the Project, Bidder will enter into the Contract with City in accordance with the terms of the Bid.

2. Submittals. Within ten days following issuance of the Notice of Potential Award to Bidder, Bidder must submit to City the following:

2.1 Contract. The executed Contract, using the form provided by City in the Project contract documents (“Contract Documents”);

2.2 Payment Bond. A payment bond for 100% of the maximum Contract Price, executed by a surety licensed to do business in the State of California using the Payment Bond form included with the Contract Documents;

2.3 Performance Bond. A performance bond for 100% of the maximum Contract Price, executed by a surety licensed to do business in the State of California using the Performance Bond form included with the Contract Documents; and

2.4 Insurance. The insurance certificate(s) and endorsement(s) required by the Contract Documents, and any other documents required by the Instructions to Bidders or Notice of Potential Award.

3. Enforcement. If Bidder fails to execute the Contract and to submit the bonds and insurance certificates as required by the Contract Documents, Surety guarantees that Bidder forfeits the Bond Sum to City. 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: ___________________________________________________

4. Duration and Waiver. If Bidder fulfills its obligations under Section 2, above, then this obligation will be null and void; otherwise it will remain in full force and effect for 60 days following the bid opening or until this Bid Bond is returned to Bidder, whichever occurs first.

Surety waives the provisions of Civil Code §§ 2819 and 2845. [Signatures are on the following page.]

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Wilson Park Basketball Court BID BOND
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This Bid Bond is entered into and effective on ___________________, 20_____.

SURETY:
___________________________________
Business Name
s/__________________________________ ______________________________ Date
___________________________________
Name, Title

(Attach Acknowledgment with Notary Seal and Power of Attorney) BIDDER:
___________________________________
Business Name
s/__________________________________ ______________________________ Date
___________________________________
Name, Title

END OF BID BOND
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Wilson Park Basketball Court BIDDER’S QUESTIONNAIRE
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Bidder’s Questionnaire

WILSON PARK BASKETBALL COURT PROJECT
Within 48 hours following a request by City, a bidder must submit to City a completed, signed Bidder’s Questionnaire using this form and all required attachments, including clearly labeled additional sheets as needed. City may request the Questionnaire from one or more of the apparent low bidders following the bid opening, and may use the completed Questionnaire as part of its investigation to evaluate a bidder’s qualifications for this Project. The Questionnaire must be filled out completely, accurately, and legibly. Any errors, omissions, or misrepresentations in completion of the Questionnaire may be grounds for rejection of the bid or termination of a Contract awarded pursuant to the bid.

Part A: General Information
Bidder Business Name: _______________________________________________ (“Bidder”) Check One: ___ Corporation (State of incorporation: ___________________) ___ Partnership
___ Sole Proprietorship
___ Joint Venture of: __________________________________ ___ Other: __________________________________________
Main Office Address and Phone: _____________________________________ _______________________________________________________________ Local Office Address and Phone: _____________________________________ _______________________________________________________________ Website address: __________________________________________________ Owner of Business: ________________________________________________ Contact Name and Title: ____________________________________________ Contact Phone and Email: ___________________________________________ Bidder’s California Contractor’s License Number(s): _______________________ Bidder’s DIR Registration Number: ____________________________________ Part B: Bidder Experience

1. How many years has Bidder been in business under its present business name? ____ years

2. Has Bidder completed projects similar in type and size to this Project as a general contractor? _____ Yes _____ No

3. Has Bidder ever been disqualified from a bid on grounds that it is not responsible, or otherwise disqualified or disbarred from bidding under state or federal law? _____ Yes _____ No
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If yes, provide additional information on a separate sheet regarding the disqualification or disbarment, including the name and address of the agency or owner of the project, the type and size of the project, the reasons that Bidder was disqualified or disbarred, and the month and year in which the disqualification or disbarment occurred.

4. Has Bidder ever been terminated for cause, alleged default, or legal violation from a construction project, either as a general contractor or as a subcontractor? _____ Yes _____ No
If yes, provide additional information on a separate sheet regarding the termination, including the name and address of the agency or owner of the subject project, the type and size of the project, whether Bidder was under contract as a general contractor or a subcontractor, the reasons that Bidder was terminated, and the month and year in which the termination occurred.

5. Provide information about Bidder’s past projects performed as general contractor as follows:

5.1 Three most recently completed public works projects within the last three years;

5.2 Three largest completed projects within the last three years; and

5.3 Any project which is similar to this Project including scope and character of the work.

6. Use separate sheets to provide all of the following information for each project identified in response to the above three categories:

6.1 Project name, location, and description;

6.2 Owner (name, address, email, and phone number);

6.3 Prime contractor, if applicable (name, address, email, and phone number);

6.4 Architect or engineer (name, email, and phone number);

6.5 Project and/or construction manager (name, email, and phone number);

6.6 Scope of work performed (as general or as subcontractor);

6.7 Initial contract price and final contract price (including change orders);

6.8 Original scheduled completion date and actual date of completion;

6.9 Time extensions granted (number of days);

6.10 Number and amount of stop notices or mechanic’s liens filed;

6.11 Amount of any liquidated damages assessed against Bidder; and

6.12 Nature and resolution of any project-related claim, lawsuit, mediation, or arbitration involving Bidder.

Part C: Safety

1. Provide Bidder’s Experience Modification Rate (EMR) for the last three years:

Year EMR

2. Complete the following, based on information provided in Bidder’s CalOSHA Form 300 or Form 300A, Annual Summary of Work-Related Illnesses and Injuries, from the most recent past calendar year:

2.1 Number of lost workday cases: ____

2.2 Number of medical treatment cases: ____

2.3 Number of deaths: ____
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3. Has Bidder ever been cited, fined, or prosecuted by any local, state, or federal agency, including OSHA, CalOSHA, or EPA, for violation of any law, regulation, or requirements pertaining to health and safety?
_____ Yes _____ No
If yes, provide additional information on a separate sheet regarding each such citation, fine, or prosecution, including the name and address of the agency or owner of the project, the type and size of the project, the reasons for and nature of the citation, fine, or prosecution, and the month and year in which the incident giving rise to the citation, fine, or prosecution occurred.

4. Name, title, and email for person responsible for Bidder’s safety program:
_________________________________________ ______________________ Name Title Email
Part D: Verification
In signing this document, I, the undersigned, declare that I am duly authorized to sign and submit this Bidder’s Questionnaire on behalf of the named Bidder, and that all responses and information set forth in this Bidder’s Questionnaire and accompanying attachments are, to the best of my knowledge, true, accurate and complete as of the date of submission. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Signature: ______________________________ Date: ________________ By: _______________________________________________________________ Name and Title
END OF BIDDER’S QUESTIONNAIRE
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Wilson Park Basketball Court CONTRACT
Project No. 2022-11 Page 20
Contract
This public works contract (“Contract”) is entered into by and between City of Cupertino (“City”) and _________________________________________________ (“Contractor”), for work on the Wilson Park Basketball Court Project (“Project”).

The parties agree as follows:

1. Award of Contract. In response to the Notice Inviting Bids, Contractor has submitted a Bid Proposal to perform the Work to construct the Project. On _____________, 20___, City authorized award of this Contract to Contractor 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 Notice Inviting Bids;

2.2 Instructions to Bidders;

2.3 Addenda, if any;

2.4 Bid Proposal and attachments thereto;

2.5 Contract;

2.6 Payment and Performance Bonds;

2.7 General Conditions;

2.8 Special Conditions;

2.9 Project Plans and Specifications;

2.10 Change Orders, if any;

2.11 Notice of Potential Award;

2.12 Notice to Proceed; and

2.13 The following: No other documents

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. Contractor agrees to carry out its work in compliance with any applicable local, State or Federal order regarding COVID-19.

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 $___________________ (“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 Final Completion, within 90 calendar days from the commencement date given in the Notice to Proceed (“Contract Time”). By signing below, Contractor expressly waives any claim for delayed early completion.

6. Liquidated Damages. If Contractor fails to complete the Work within the Contract Time, City will assess liquidated damages in the amount of $1,500 per day for each day of 718
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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.

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:

City of Cupertino
Department of Public Works
10300 Torre Avenue
Cupertino, CA 95014
Attn: Susan Michael
[email protected]
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Copy to: John Raaymakers
[email protected]
Contractor:

Name:_____________________________________
Address:___________________________________
City/State/Zip:_______________________________
Phone:_____________________________________
Attn:_______________________________________
Email:______________________________________
Copy to:____________________________________

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 Santa Clara 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 Santa Clara 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 Corporation Code § 313.

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

CITY: Approved as to form:
s/_______________________________ s/__________________________________ ________________________________ ___________________________________ Name, Title Name, Title
Date: ___________________________ Date: ______________________________

Attest:
s/_______________________________
_________________________________
Name, Title
Date: ___________________________
CONTRACTOR: ___________________________________________________ Business Name
s/_______________________________ Seal:
_________________________________
Name, Title
Date: ____________________________
Second Signature (See Section 12.8):
s/_______________________________
_________________________________
Name, Title
Date: ____________________________
___________________________________________________
Contractor’s California License Number(s) and Expiration Date(s)

END OF CONTRACT
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Payment Bond
City of Cupertino (“City”) and _____________________________ (“Contractor”) have entered into a contract for work on the Wilson Park Basketball Court Project (“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 $_____________________________________, under California Civil Code § 9550 et seq., to ensure payment to authorized claimants. This Bond is binding on the respective successors, assigns, owners, heirs, or executors of Surety and Contractor.

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

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

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

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

Attn: _____________________________________________________ Address: _________________________________________________ City/State/Zip: _____________________________________________ Phone: ___________________________________________________ Email: ___________________________________________________

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 Santa Clara 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.]

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

SURETY:
___________________________________
Business Name
s/__________________________________ ______________________________ Date
___________________________________
Name, Title

(Attach Acknowledgment with Notary Seal and Power of Attorney) CONTRACTOR:
___________________________________
Business Name
s/__________________________________ ______________________________ Date
___________________________________
Name, Title

END OF PAYMENT BOND
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Performance Bond
City of Cupertino (“City”) and __________________________ (“Contractor”) have entered into a contract for work on the Wilson Park Basketball Court Project (“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 $_______________________________________________ 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: _________________________________________________ 724
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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 Santa Clara County Superior Court, and no other place.

Surety will be responsible for City’s attorneys’ fees and costs in any action to enforce the provisions of this Bond.

9. Effective Date; Execution. This Bond is entered into and effective on ____________________, 20___.

SURETY:
___________________________________
Business Name
s/__________________________________ ______________________________ Date
___________________________________
Name, Title

(Attach Acknowledgment with Notary Seal and Power of Attorney) CONTRACTOR:
___________________________________
Business Name
s/__________________________________ ______________________________ Date
___________________________________
Name, Title

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

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

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 for City and his or her authorized delegee(s).

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 Notice Inviting Bids; the Instructions to Bidders; addenda, if any; the Bid Proposal, and attachments thereto; the Contract; the Notice of Potential Award and Notice to Proceed; the payment and performance bonds; the General Conditions; the Special Conditions; the Project Plans and Specifications; any Change Orders; 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 or adjusted for an Allowance. The Contract Price is not subject to adjustment due to inflation or due to the increased cost of labor, material, supplies or equipment following submission of the Bid Proposal.

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 the individual, partnership, corporation, or joint-venture that has signed the Contract with City to perform the Work.

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

DIR means the California Department of Industrial Relations.

Drawings has the same meaning as Plans.

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

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

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

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

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

Furnish means to purchase and deliver for the Project.

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

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 public works project referenced in the Contract. 727
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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 his or her authorized delegee(s) when the Project Manager is unavailable. If no Project Manager has been designated for this Project, any reference to Project Manager is deemed to refer to the Engineer.

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 City, and does not include the Contract, General Conditions or Special Conditions.

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.

Holidays observed by the City and furlough days are:
a. New Year’s Day, January 1;
b. Martin Luther King Jr.’s Birthday, third Monday in January; c. Lincoln’s Birthday, February 12;
d. Presidents’ Day, third Monday in February;
e. Memorial Day, last Monday in May;
f. Independence Day, July 4;
g. Labor Day, first Monday in September;
h. Veterans’ Day, November 11;
i. Thanksgiving Day, as designated by the President;
j. The Day following Thanksgiving Day;
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k. Christmas Day, December 25;
l. City Closure, December 24, 26, 27,28,29,30 and 31: and m. Each day appointed by the Governor of California and formally recognized by the Santa Clara County Board of Supervisors as a day of mourning, thanksgiving, or special observance.

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

Article 2 - Roles and Responsibilities

2.1 City.
(A) City Council. The City Council has final authority in all matters affecting the Project, except to the extent it has delegated authority to the Engineer. (B) Engineer. The Engineer, acting within the authority conferred by the City Council, is responsible for administration of the Project on behalf of City, including authority to provide directions to the Design Professional and to Contractor to ensure proper and timely completion of the Project. The Engineer’s decisions are final and conclusive within the scope of his or her authority, including interpretation of the Contract Documents.
(C) Project Manager. The Project Manager assigned to the Project will be the primary point of contact for the Contractor and will serve as City’s representative for daily administration of the Project on behalf of City. Unless otherwise specified, all of Contractor’s communications to City (in any form) will go to or through the Project Manager. City reserves the right to reassign the Project Manager role at any time or to delegate duties to additional City representatives, without prior notice to or consent of Contractor.
(D) Design Professional. The Design Professional is responsible for the overall design of the Project and, to the extent authorized by City, may act on City’s 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 729
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extent that the Contract Documents provide other specific instructions. Contractor’s responsibilities extend to any plan, method or sequence suggested, but not required by City or specified in the Contract Documents. From the date of commencement of the Work until either the date on which City formally accepts the Project or the effective date of termination of the Contract, whichever is later, Contractor bears all risks of injury or damage to the Work and the materials and equipment delivered to any Worksite, by any cause including fire, earthquake, wind, weather, vandalism or theft. (C) Project Administration. Contractor must provide sufficient and competent administration, staff, and skilled workforce necessary to perform and timely complete the Work in accordance with the Contract Documents. Before starting the Work, Contractor must designate in writing and provide complete contact information, including telephone numbers and email address, for the officer or employee in Contractor’s organization who is to serve as Contractor’s primary representative for the Project, and who has authority to act on Contractor’s behalf. A Subcontractor may not serve as Contractor’s primary representative.
(D) On-Site Superintendent. Contractor must, at all times during performance of the Work, provide a qualified and competent full-time superintendent acceptable to City, and assistants as necessary, who must be physically present at the Project site while any aspect of the Work is being performed. The superintendent must have full authority to act and communicate on behalf of Contractor, and Contractor will be bound by the superintendent’s communications to City. City’s approval of the superintendent is required before the Work commences. If City is not satisfied with the superintendent’s performance, City may request a qualified replacement of the superintendent. Failure to comply may result in temporary suspension of the Work, at Contractor’s sole expense and with no extension of Contract Time, until an approved superintendent is physically present to supervise the Work. Contractor must provide written notice to City, as soon as practicable, before replacing the superintendent.
(E) Standards. Contractor must, at all times, ensure that the Work is performed in an efficient, skillful manner following best practices and in full compliance with the Contract Documents and Laws and applicable manufacturer’s recommendations.

Contractor has a material and ongoing obligation to provide true and complete information, to the best of its knowledge, with respect to all records, documents, or communications pertaining to the Project, including oral or written reports, statements, certifications, Change Order requests, or Claims.
(F) Meetings. Contractor, its project manager, superintendent and any primary Subcontractors requested by City, must attend a pre-construction conference, if requested by City, as well as weekly Project progress meetings scheduled with City. If applicable, Contractor may also be required to participate in coordination meetings with other parties relating to other work being performed on or near the Project site or in relation to the Project, including work or activities performed by City, other contractors, or other utility owners.
(G) Construction Records. Contractor will maintain up-to-date, thorough, legible, and dated daily job reports, which document all significant activity on the Project for each day that Work is performed on the Project. The daily report for each day must include the number of workers at the Project site; primary Work activities; major deliveries; problems encountered, including injuries, if any; weather and site conditions; and delays, if any.

Contractor will take date and 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 730
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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 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 731
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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.
(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 732
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work being performed on or adjacent to the Project site, including by any utility companies or agencies, and must avoid hindering, delaying, or interfering with the work of other contractors, individuals, or entities, and must ensure safe and reasonable site access and use as required or authorized by City. To the full extent permitted by law, Contractor must hold harmless and indemnify City against any and all claims arising from or related to Contractor’s avoidable, negligent, or willful hindrance of, delay to, or interference with the work of any utility company or agency or another contractor or subcontractor.
(B) Coordination. If Contractor’s Work will connect or interface with work performed by others, Contractor is responsible for independently measuring and visually inspecting such work to ensure a correct connection and interface. Contractor is responsible for any failure by Contractor or its Subcontractors to confirm measurements before proceeding with connecting Work. Before proceeding with any portion of the Work affected by the construction or operations of others, Contractor must give the Project Manager prompt written notification of any defects Contractor discovers which will prevent the proper execution of the Work. Failure to give notice of any known or reasonably discoverable defects will be deemed acknowledgement by Contractor that the work of others is not defective and will not prevent the proper execution of the Work. Contractor must also promptly notify City if work performed by others, including work or activities performed by City’s own forces, is operating to hinder, delay, or interfere with Contractor’s timely performance of the Work. City reserves the right to backcharge Contractor for any additional costs incurred due to Contractor’s failure to comply with the requirements in this Section 2.4.

2.5 Submittals. Unless otherwise specified, Contractor must submit to the Engineer for review and acceptance, all schedules, Shop Drawings, samples, product data, and similar submittals required by the Contract Documents, or upon request by the Engineer.

Unless otherwise specified, all submittals, including Requests for Information, are subject to the general provisions of this Section, as well as specific submittal requirements that may be included elsewhere in the Contract Documents, including the Special Conditions or Specifications. The Engineer may require submission of a submittal schedule at or before a pre-construction conference, as may be specified in the Notice to Proceed. (A) General. Contractor is responsible for ensuring that its submittals are accurate and conform to the Contract Documents.
(B) Time and Manner of Submission. Contractor must ensure that its submittals are prepared and delivered in a manner consistent with the current 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. 733
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(F) Enforcement. Any Work performed or any material furnished, installed, fabricated or used without City’s prior acceptance of a required submittal is performed or provided at Contractor’s risk, and Contractor may be required to bear the costs incident thereto, including the cost of removing and replacing such Work, repairs to other affected portions of the Work or material, and the cost of additional time or services required of City, including costs for the Design Professional, Project Manager, or Inspector. (G) Excessive RFIs. A RFI will be considered excessive or unnecessary if City determines that the explanation or response to the RFI is clearly and unambiguously discernable from the Contract Documents. City’s costs to review and respond to excessive or unnecessary RFIs may be deducted from payments otherwise due to Contractor.

2.6 Shop Drawings. When Shop Drawings are required by the Specifications or requested by the Engineer, they must be prepared according to best practices at Contractor’s expense. The Shop Drawings must be of a size and scale to clearly show all necessary details. Unless otherwise specified by City, Shop Drawings must be provided to the Engineer for review and acceptance at least 30 days before the Work will be performed.

If City requires changes, the corrected Shop Drawings must be resubmitted to the Engineer for review within the time specified by the Engineer. For all Project components requiring Shop Drawings, Contractor will not furnish materials or perform any Work until the Shop Drawings for those components are accepted by City. Contractor is responsible for any errors or omissions in the Shop Drawings, shop fits and field corrections; any deviations from the Contract Documents; and for the results obtained by the use of Shop Drawings. Acceptance of Shop Drawings by City does not relieve Contractor of Contractor’s responsibility.

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

2.8 Personnel. Contractor and its Subcontractors must employ only competent and skillful personnel to perform the Work. Contractor and its Subcontractor’s supervisors, security or safety personnel, and employees who have unescorted access to the Project site must possess proficiency in English sufficient to read, understand, receive, and implement oral or written communications or instructions 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 reemployed 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 734
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not particularly mentioned or shown. Contractor must perform all Work and services and supply all things reasonably related to and inferable from the Contract Documents. In the event of a conflict between the Plans and Specifications, the Specifications will control, unless the drawing(s) at issue are dated later than the Specification(s) at issue. Detailed drawings take precedence over general drawings, and large-scale drawings take precedence over smaller scale drawings. Any arrangement or division of the Plans and Specifications into sections is for convenience and is not intended to limit the Work required by separate trades. A conclusion presented in the Plans or Specifications is only a recommendation. Actual locations and depths must be determined by Contractor’s field investigation. Contractor may request access to underlying or background information in City’s possession that is necessary for Contractor to form its own conclusions. (B) Duty to Notify and Seek Direction. If Contractor becomes aware of a changed condition in the Project, or of any ambiguity, conflict, inconsistency, discrepancy, omission, or error in the Contract Documents, including the Plans or Specifications, Contractor must promptly submit a Request for Information to the Engineer and wait for a response from City before proceeding further with the related Work. The RFI must notify City of the issue and request clarification, interpretation or direction. The Engineer’s clarification, interpretation or direction will be final and binding on Contractor. If Contractor proceeds with the related Work before obtaining City’s response, Contractor will be responsible for any resulting costs, including the cost of correcting any incorrect or defective Work that results. Timely submission of a clear and complete RFI is essential to avoiding delay. Delay resulting from Contractor’s failure to submit a timely and complete RFI to the Engineer is Non-Excusable Delay. If Contractor believes that City’s response to an RFI justifies a change to the Contract Price or Contract Time, Contractor must perform the Work as directed, but may submit a timely Change Order request in accordance with the Contract Documents. (See Article 5 and 6.) (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) Addenda;
(C) Contract;
(D) Notice to Proceed;
(E) Attachment B – Federal Contract Requirements (only if used); (F) Special Conditions;
(G) General Conditions;
(H) Payment and Performance Bonds;
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(I) Specifications;
(J) Plans;
(K) Notice of Potential Award;
(L) Notice Inviting Bids;
(M) Attachment A – Federal Bidding Requirements (only if used); (N) Instructions to Bidders;
(O) Contractor’s Bid Proposal and attachments;
(P) the City’s standard specifications, as applicable; and (Q) Any generic documents prepared by and on behalf of a third party, that were not prepared specifically for this Project, such as the Caltrans Standard Specifications or Caltrans Special Provisions.

3.3 Caltrans Standard Specifications. Any reference to or incorporation of the Standard Specifications of the State of California, Department of Transportation (“Caltrans”), including “Standard Specifications,” “Caltrans Specifications,” “State Specifications,” or “CSS,” means the most current edition of Caltrans’ Standard Specifications, unless otherwise specified (“Caltrans Standard Specifications”), including the most current amendments as of the date that Contractor’s bid was submitted for this Project. The following provisions apply to use of or reference to the Caltrans Standard Specifications or Special Provisions:
(A) Limitations. The “General Provisions” of the Caltrans Standard Specifications, i.e., sections 1 through 9, do not apply to these Contract Documents with the exception of any specific provisions, if any, which are expressly stated to apply to these Contract Documents.
(B) Conflicts or Inconsistencies. If there is a conflict or inconsistency between any provision in the Caltrans Standard Specifications or Special Provisions and a provision of these Contract Documents, as determined by City, the provision in the Contract Documents will govern.
(C) Meanings. Terms used in the Caltrans Standard Specifications or Special Provisions are to be interpreted as follows:
(1) Any reference to the “Engineer” is deemed to mean the City Engineer. (2) Any reference to the “Special Provisions” is deemed to mean the Special Conditions, unless the Caltrans Special Provisions are expressly included in the Contract Documents listed in Section 2 of the Contract. (3) Any reference to the “Department” or “State” is deemed to mean City.

3.4 For Reference Only. Contractor is responsible for the careful review of any document, study, or report provided by City or appended to the Contract Documents solely for informational purposes and identified as “For Reference Only.” Nothing in any document, study, or report so appended and identified is intended to supplement, alter, or void any provision of the Contract Documents. Contractor is advised that City or its representatives may be guided by information or recommendations included in such reference documents, particularly when making determinations as to the acceptability of proposed materials, methods, or changes in the Work. Any record drawings or similar final or accepted drawings or maps that are not part of the Contract Documents are deemed to be For Reference Only. The provisions of the Contract Documents are not modified by any perceived or actual conflict with provisions in any document that is provided For Reference Only.
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3.5 Current Versions. Unless otherwise specified by City, any reference to standard specifications, technical specifications, or any City or state codes or regulations means the latest specification, code or regulation in effect at the time the Contract is signed.

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

3.7 Ownership. No portion of the Contract Documents may be used for any purpose other than construction of the Project, without prior written consent from City. Contractor is deemed to have conveyed the copyright in any designs, drawings, specifications, Shop Drawings, or other documents (in paper or electronic form) developed by Contractor for the Project, and City will retain all rights to such works, including the right to possession.

Article 4 - Bonds, Indemnity, and Insurance

4.1 Payment and Performance Bonds. Within ten days following issuance of the Notice of Potential 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 willful misconduct of an Indemnitee. This indemnity requirement applies to any Liability arising from alleged defects in the content or manner of submission of Contractor’s bid for the Contract.

Contractor’s failure or refusal to timely accept a tender of defense pursuant to this Contract will be deemed a material breach of the Contract. City will timely notify Contractor upon receipt of any third-party claim relating to the Contract, as required by Public Contract Code § 9201. Contractor waives any right to express or implied indemnity against any Indemnitee. Contractor’s indemnity obligations under this Contract will survive the expiration or any early termination of the Contract. 737
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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 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. (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. (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 738
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30 days written notice to City, unless due to non-payment of premiums, in which case ten days written notice must be made to City.
(C) Waiver of Subrogation. Each required policy must include an endorsement providing that the carrier will waive any right of subrogation it may have against City. (D) Required Endorsements. The CGL policy, automobile liability policy, pollution liability policy, and builder’s risk policy must include the following specific endorsements:
(1) The City, including its Council, officials, officers, employees, agents, volunteers and consultants (collectively, “Additional Insured”) must be named as an additional insured for all liability arising out of the operations by or on behalf of the named insured, and the policy must protect the Additional Insured against any and all liability for personal injury, death or property damage or destruction arising directly or indirectly in the performance of the Contract. The additional insured endorsement must be provided using ISO form CG 20 10 11 85 or an equivalent form approved by the City.
(2) The inclusion of more than one insured will not operate to impair the rights of one insured against another, and the coverages afforded will apply as though separate policies have been issued to each insured.
(3) The insurance provided by Contractor is primary and no insurance held or owned by any Additional Insured may be called upon to contribute to a loss. (4) This policy does not exclude explosion, collapse, underground excavation hazard, or removal of lateral support.
(E) Contractor’s Responsibilities. This Section 4.3 establishes the minimum requirements for Contractor’s insurance coverage in relation to this Project, but is not intended to limit Contractor’s ability to procure additional or greater coverage. Contractor is responsible for its own risk assessment and needs and is encouraged to consult its insurance provider to determine what coverage it may wish to carry beyond the minimum requirements of this Section. Contractor is solely responsible for the cost of its insurance coverage, including premium payments, deductibles, or self-insured retentions, and no Additional Insured will be responsible or liable for any of the cost of Contractor’s insurance coverage.
(F) Deductibles and Self-Insured Retentions. Any deductibles or 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 739
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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.

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. 740
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(1) Specialized Materials Ordering. Within five calendar days following issuance of the Notice to Proceed, Contractor must order any specialized material or equipment for the Work that is not readily available from material suppliers.

Contractor must also retain documentation of the purchase orders date(s).

(B) City’s Review of Schedules. City will review and may note exceptions to the baseline schedule, and to the progress schedules submitted as required below, to assure completion of the Work within the Contract Time. Contractor is solely responsible for resolving any exceptions noted in a schedule and, within seven days, must correct the schedule to address the exceptions. City’s review or acceptance of Contractor’s schedules will not operate to waive or limit Contractor’s duty to complete the Project within the Contract Time, nor to waive or limit City’s right to assess liquidated damages for Contractor’s unexcused failure to do so.
(C) Progress Schedules. After City accepts the final baseline schedule with no exceptions, Contractor must submit an updated progress schedule and 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 ten percent from payment(s) otherwise due to Contractor until the exceptions are resolved, the schedule is corrected and resubmitted, and City has accepted the schedule. In addition, Contractor’s failure to comply with the schedule requirements in this Section 5.2 will be deemed a material default and a waiver of any claims for Excusable Delay or loss of productivity arising during any period when Contractor is out of compliance, subject only to the limits of Public Contract Code § 7102. (D) Recovery Schedule. If City determines that the Work is more than one week behind schedule, within seven days following written notice of such 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. 741
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(G) Reservation of Rights. City reserves the right to direct the sequence in which the Work must be performed or to make changes in the sequence of the Work in order to facilitate the performance of work by City or others, or to facilitate City’s use of its property. The Contract Time or Contract Price may be adjusted to the extent such changes in sequence actually increase or decrease Contractor’s time or cost to perform the Work.
(H) Authorized Working Days and Times. Contractor is limited to working Monday through Friday, excluding holidays, during City’s normal business hours, except as provided in the Special Conditions or as authorized in writing by City. City reserves the right to charge Contractor for additional costs incurred by City due to Work performed on days or during hours not expressly authorized in the Contract Documents, including reimbursement of costs incurred for inspection, testing, and construction management services.

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

Month # Normal Weather Precipitation
Delay Days
January 6 2.86
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February 6 2.66
March 6 2.29
April 3 1.20
May 1 0.44
June 0 0.10
July 0 0.02
August 0 0.07
September 1 0.19
October 2 0.76
November 4 1.51
December 5 2.43
Total 34 14.53
(2) Contractor must fully comply with the applicable procedures in Articles 5 and 6 of the General Conditions regarding requests to modify the Contract Time. (3) 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.
(4) 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:
(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)); 743
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(8) delayed submission of required submittals, or the time required for correction and resubmission of defective submittals;
(9) time required for repair of, re-testing, or re-inspection of defective Work; (10) enforcement of Laws by City, or outside agencies with jurisdiction over the Work; or
(11) City’s exercise or enforcement of any of its rights or Contractor’s duties pursuant to the Contract Documents, including correction of defective Work, extra inspections or testing due to non-compliance with Contract requirements, safety compliance, environmental compliance, or rejection and return of defective or deficient submittals.
(E) Compensable Delay. Pursuant to Public Contract Code § 7102, in addition to entitlement to an extension of Contract Time, Contractor is entitled to compensation for costs incurred due to delay caused solely by City, when that delay is unreasonable under the circumstances involved and not within the contemplation of the parties (“Compensable Delay”). Contractor is not entitled to an extension of Contract Time or recovery of costs for Compensable Delay that is concurrent with Non-Excusable Delay.

Delay due to causes that are beyond the control of either City or Contractor, including Weather Delay Days, discovery of Historic or Archeological Items pursuant to Section

7.18, or the actions or inactions of third parties or other agencies, is not Compensable Delay, and will only entitle Contractor to an extension of time commensurate with the time lost due to such delay.
(F) Recoverable Costs. Contractor is not entitled to compensation for Excusable Delay unless it is Compensable Delay, as defined above. Contractor is entitled to recover only the actual, direct, reasonable, and substantiated costs (“Recoverable Costs”) for each working day that the Compensable Delay prevents Contractor from proceeding with more than 50% of the critical path Work scheduled for that day, based on the most recent progress schedule accepted by City. Recoverable Costs will not include home office overhead or lost profit.
(G) Request for Extension of Contract Time or Recoverable Costs. A request for an extension of Contract Time or any associated Recoverable Costs must be submitted in writing to City within ten calendar days of the date the delay is first encountered, even if the duration of the delay is not yet known at that time, or any entitlement to the Contract Time extension or to the Recoverable Costs will be deemed waived. In addition to complying with the requirements of this Article 5, the request must be submitted in compliance with the Change Order request 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 costefficient 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.
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(2) Delay Days and Costs. The request must specify the number of days of Excusable Delay claimed or provide a realistic estimate if the duration of the delay is not yet known. If Contractor believes it is entitled to Recoverable Costs for Compensable Delay, the request must specify the amount and basis for the Recoverable Costs that are claimed or provide a realistic estimate if the amount is not yet known. Any estimate of delay duration or cost must be updated in writing and submitted with all required supporting documentation as soon as the actual time and cost is known. The maximum extension of Contract Time will be the number of days, if any, by which an Excusable Delay or a Compensable Delay exceeds any concurrent Non-Excusable Delay. Contractor is entitled to an extension of Contract Time, or compensation for Recoverable Costs, only if, and only to the extent that, such delay will unavoidably delay Final Completion. (3) Supporting Documentation. The request must also include any and all supporting documentation necessary to evidence the delay and its actual impacts, including scheduling and cost impacts with a time impact analysis using critical path methodology and demonstrating the unavoidable delay to Final Completion. The time impact analysis must be submitted in a form or format acceptable to City.
(4) Burden of Proof. Contractor has the burden of proving that: the delay was an Excusable or Compensable Delay, as defined above; Contractor has fully complied with its scheduling obligations in Section 5.2, Schedule Requirements; Contractor has made reasonable efforts to mitigate the delay and its schedule and cost impacts; the delay will unavoidably result in delaying Final Completion; and any Recoverable Costs claimed by Contractor were actually incurred and were reasonable under the circumstances.
(5) Legal Compliance. Nothing in this Section 5.3 is intended to require the waiver, alteration, or limitation of the applicability of Public Contract Code § 7102. (6) No Waiver. Any grant of an extension of Contract Time, or compensation for Recoverable Costs due to Compensable Delay, will not operate as a waiver of City’s right to assess liquidated damages for Non-Excusable Delay. (7) Dispute Resolution. In the event of a dispute over entitlement to an extension of Contract Time or compensation for Recoverable Costs, Contractor may not stop Work pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work. Contractor’s sole recourse for an unresolved dispute based on City’s rejection of a Change Order request for an extension of Contract Time or compensation for Recoverable Costs is to comply with the dispute resolution provisions set forth in Article 12 below.

5.4 Liquidated Damages. It is expressly understood that if Final Completion is not achieved within the Contract Time, City will suffer damages from the delay that are difficult to determine and accurately specify. Pursuant to Public Contract Code § 7203, if Contractor fails to achieve Final Completion within the Contract Time, City will charge Contractor in the amount specified in the Contract for each day that Final Completion is delayed beyond the Contract Time, as liquidated damages and not as a penalty. Any waiver of accrued liquidated damages, in whole or in part, is subject to approval of the City Council or its authorized delegee.
(A) Liquidated Damages. Liquidated damages will not be assessed for any Excusable or Compensable Delay, as set forth above.
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(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 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, 746
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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 his or her scope of authority, do not require a Change Order. By executing an RFI reply from City, Contractor agrees that it will perform the Work as clarified therein, with no change to the Contract Price or Contract Time. (E) Remedy for Non-Compliance. Contractor’s failure to promptly comply with a City-directed change is deemed a material breach of the Contract, and in addition to all other remedies available to it, City may, at its sole discretion, hire another contractor or use its own forces to complete the disputed Work at Contractor’s sole expense, and may deduct the cost from the Contract Price.

6.2 Contractor Change Order Requests. Contractor must submit a request or proposal for a change in the Work, compensation for Extra Work, or a change in the Contract Price or Contract Time as a written Change Order request or proposal. (A) Time for Submission. Any request for a change in the Contract Price or the Contract Time must be submitted in writing to the Engineer within ten calendar days of the date that Contractor first encounters the circumstances, information or conditions giving rise to the Change Order request, even if the total amount of the requested change in the Contract Price or impact on the Contract Time is not yet known at that time. If City requests that Contractor propose the terms of a Change Order, unless otherwise specified in City’s request, Contractor must provide the Engineer with a written proposal for the change in the Contract Price or Contract Time within five working days of receiving City’s request, in a form satisfactory to the Engineer. 747
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(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.
(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, and which may include a not-to-exceed limit, calculated as the total of the following sums, the cumulative total of which may not exceed the maximum markup rate of 15%:
(1) All direct labor costs provided by the Contractor, excluding superintendence, project management, or administrative costs, plus 15% markup; 748
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(2) All direct material costs provided by the Contractor, including sales tax, plus 15% markup;
(3) All direct plant and equipment rental costs provided by the Contractor, plus 15% markup;
(4) All direct additional subcontract costs plus 10% markup for Work performed by Subcontractors; and
(5) Increased bond or insurance premium costs computed at 1.5% of total of the previous four sums.

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

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

Article 7 - General Construction Provisions

7.1 Permits, Fees, Business License, and Taxes.
(A) Permits, Fees, and City Business License. Contractor must obtain and pay for all permits, fees, or licenses required to perform the Work, including a City business license. Contractor must cooperate with and provide notifications to all government agencies with jurisdiction over the Project, as may be required. Contractor must provide City with copies of all records of permits and permit applications, payment of required fees, and any licenses required for the Work.
(B) Taxes. Contractor must pay for all taxes on labor, material and equipment, except Federal Excise Tax to the extent that City is exempt from Federal Excise Tax.

7.2 Temporary Facilities. Contractor must provide, at Contractor’s sole expense, any and all temporary facilities for the Project, including an onsite staging area for materials and equipment, a field office, sanitary facilities, utilities, storage, scaffolds, barricades, walkways, and any other temporary structure required to 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. 749
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(B) Removal and Repair. Contractor must promptly remove all such temporary facilities when they are no longer needed or upon completion of the Work, whichever comes first. Contractor must promptly repair any damage to City’s property or to other property caused by the installation, use, or removal of the temporary facilities, and must promptly restore the property to its original or intended condition.

7.3 Noninterference and Site Management. Contractor must avoid interfering with City’s use of its property at or adjacent to the Project site, including use of roadways, entrances, parking areas, walkways, and structures. Contractor must also minimize disruption of access to private property in the Project vicinity. Contractor must coordinate with affected property owners, tenants, and businesses, and maintain some vehicle and pedestrian access to their residences or properties at all times. Temporary access ramps, fencing or other measures must be provided as needed. Before blocking access to a private driveway or parking lot, Contractor must provide effective notice to the affected parties at least 48 hours in advance of the pending closure and allow them to remove vehicles.

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

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

7.5 Project Site and Nearby Property Protections.
(A) General. Contractor is responsible at all times, on a 24-hour basis and at its sole cost, for protecting the Work, the Project site, and the materials and equipment to be incorporated into the Work, until the City has accepted the Project, excluding any exceptions to acceptance, if any. Except as specifically authorized by City, Contractor must confine its operations to the area of the Project site indicated in the Plans and Specifications. Contractor is liable for any damage caused by Contractor or its Subcontractors to the Work, City’s property, the property of adjacent or nearby property owners and the work or personal property of other contractors working for City, including damage related to Contractor’s failure to adequately secure the Work or any Worksite. (1) Subject to City’s approval, Contractor will provide and install safeguards to protect the Work; any Worksite, including the Project site; City’s real or personal property and the real or personal property of adjacent or nearby property owners, including plant and tree protections.
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(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 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.
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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.
(A) “Or Equal.” Any Specification designating a material, product, or thing (collectively, “item”) or service by specific brand or trade name, followed by the words “or equal,” is intended only to indicate the quality and type of item or service desired, and Contractor may request use of any equal item or service. Unless otherwise stated in the Specifications, any reference to a specific brand or trade name for an item that is used solely for the purpose of describing the type of item desired, will be deemed to be followed by the words “or equal.” A substitution will only be approved if it is a true “equal” item in every aspect of design, function, and quality, as determined by City, including dimensions, weight, maintenance requirements, durability, fit with other elements, and schedule impacts.
(B) Request for Substitution. A post-award request for substitution of an item or service must be submitted in writing to the Engineer for approval in advance, within the applicable time period provided in the Contract Documents. If no time period is specified, the substitution request may be submitted any time within 35 days after the date of award of the Contract, or sufficiently in advance of the time needed to avoid delay of the Work, whichever is earlier.
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(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 locations during construction and/or fabrication and at any Worksite, including at shops and yards as well as at the Project site. All manufacturers’ application or installation instructions must be provided to the Inspector at least ten days prior to the first such application or installation. Contractor must, at all times, make the Work available for testing or inspection. Neither City’s inspection or testing of Work, nor its failure to do so, operate to waive or limit Contractor’s duty to complete the Work in accordance with the Contract Documents. (B) Scheduling and Notification. Contractor must cooperate with City in coordinating the inspections and testing. Contractor must submit samples of materials, at Contractor’s expense, and schedule all tests required by the Contract Documents in time to avoid any delay to the progress of the Work. Contractor must notify the Engineer no later than noon of the Working Day before any inspection or testing and must provide timely notice to the other necessary parties as specified in the Contract Documents. If Contractor schedules an inspection or test beyond regular Work hours, or on a Saturday, Sunday, or recognized City holiday, Contractor must notify the Engineer at least two Working Days in advance for approval. If approved, Contractor must reimburse City for the cost of the overtime inspection or testing. Such costs, including the City’s hourly costs for required personnel, may be deducted from payments otherwise due to Contractor. (C) Responsibility for Costs. City will bear the initial cost of inspection and testing to be performed by independent testing consultants retained by City, subject to the following exceptions:
(1) Contractor will be responsible for the costs of any subsequent tests which are required to substantiate compliance with the Contract Documents, and any associated remediation costs.
(2) Contractor will be responsible for inspection costs, at City’s hourly rates, for inspection time lost because the Work is not ready or Contractor fails to appear for a scheduled inspection.
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(3) If any portion of the Work that is subject to inspection or testing is covered or concealed by Contractor prior to the inspection or testing, Contractor will bear the cost of making that portion of the Work available for the inspection or testing required by the Contract Documents, and any associated repair or remediation costs.
(4) Contractor is responsible for properly shoring all compaction test sites deeper than five feet below grade, as required under Section 7.15 below. (5) Any Work or material that is defective or fails to comply with the requirements of the Contract Documents must be promptly repaired, removed, replaced, or corrected by Contractor, at Contractor’s sole expense, even if that Work or material was previously inspected or included in a progress payment. (D) Contractor’s Obligations. Contractor is solely responsible for any delay occasioned by remediation of defective or noncompliant Work or material. Inspection of the Work does not in any way relieve Contractor of its obligations to perform the Work as specified. Any Work done without the required inspection(s) will also be subject to rejection by City.
(E) Distant Locations. If required off-site testing or inspection must be conducted at a location more than 100 miles from the Project site, Contractor is solely responsible for the additional travel costs required for testing and/or inspection at such locations. (F) Final Inspection. The provisions of this Section 7.8 also apply to final inspection under Article 11, Completion and Warranty Provisions.

7.9 Project Site Conditions and Maintenance. Contractor must at all times, on a 24-hour basis and at its sole cost, maintain the Project site and staging and storage areas in clean, neat, and sanitary condition and in compliance with all Laws pertaining to safety, air quality, and dust control. Adequate toilets must be provided, and properly maintained and serviced for all workers on the Project site, located in a suitably secluded area, subject to City’s prior approval. Contractor must also, on a daily basis and at its sole cost, remove and properly dispose of the debris and waste materials from the Project site. (A) Air Emissions Control. Contractor must not discharge smoke or other air contaminants into the atmosphere in violation of any Laws. (B) Dust and Debris. Contractor must minimize and confine dust and debris resulting from the Work. Contractor must abate dust nuisance by cleaning, sweeping, and immediately sprinkling with water excavated areas of dirt or other materials prone to cause dust, and within one hour after the Engineer notifies Contractor that an airborne nuisance exists. The Engineer may direct that Contractor provide an approved waterspraying 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.
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(1) Except as otherwise specified, all excess Project materials, and the materials removed from existing improvements on the Project site with no salvage value or intended reuse by City, will be Contractor’s property.
(2) Hauling trucks and other vehicles leaving the Project site must be cleaned of exterior mud or dirt before traveling on City streets. Materials and loose debris must be delivered and loaded to prevent dropping materials or debris. Contractor must immediately remove spillage from hauling on any publicly traveled way.

Streets affected by Work on the Project must be kept clean by street sweeping. (D) Disposal. Contractor must dispose of all Project debris and waste materials in a safe and legal manner. Contractor may not burn or bury waste materials on the Project site. Contractor will not allow any dirt, refuse, excavated material, surplus concrete or mortar, or any associated washings, to be disposed of onto streets, into manholes or into the storm drain system.
(E) Completion. At the completion of the Work, Contractor must remove from the Project site all of its equipment, tools, surplus materials, waste materials and debris, presenting a clean and neat appearance. Before demobilizing from the Project site, Contractor must ensure that all surfaces are cleaned, sealed, waxed, or finished as applicable, and that all marks, stains, paint splatters, and the like have been properly removed from the completed Work and the surrounding areas. Contractor must ensure that all parts of the construction are properly joined with the previously existing and adjacent improvements and conditions. Contractor must provide all cutting, fitting and patching needed to accomplish that requirement. Contractor must also repair or replace all existing improvements that are damaged or removed during the Work, both on and off the Project site, including curbs, sidewalks, driveways, fences, signs, utilities, street surfaces and structures. Repairs and replacements must be at least equal to the previously existing improvements, and the condition, finish and dimensions must match the previously existing improvements. Contractor must restore to original condition all property or items that are not designated for alteration under the Contract Documents and leave each Worksite clean and ready for occupancy or use by City. (F) Non-Compliance. If Contractor fails to comply with its maintenance and cleanup obligations or any City clean up order, City may, acting in its sole discretion, elect to suspend the Work until the condition(s) is corrected with no increase in the Contract Time or Contract Price, or undertake appropriate cleanup measures without further notice and the cost will be deducted from any amounts due or to become due to Contractor.

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 755
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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 aboveground 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 existing main or trunkline utility facilities located on the Project site if those utilities are not identified in the Contract Documents. Contractor will be compensated in accordance with the provisions of the Contract Documents for the costs of locating, repairing damage not due to Contractor’s failure to exercise reasonable care, and removing or relocating utility facilities not indicated in the Plans or Specifications with reasonable accuracy, and for equipment on the Project necessarily idled during such work. Contractor will not be assessed liquidated damages for delay in completion of the Work, to the extent the delay was caused by City’s failure to provide for removal or relocation of the utility facilities.

7.13 Notice of Excavation. Contractor must comply with all applicable requirements in Government Code §§ 4216 through 4216.5, which are incorporated by reference herein.

Government Code § 4216.2 requires that, except in an emergency, Contractor must contact the appropriate regional notification center, or Underground Services Alert, at least two working days, but not more than 14 calendar days, before starting any excavation if the excavation will be conducted in an area that is known, or reasonably should be known, to contain subsurface installations. Contractor may not begin excavation until it has obtained and submitted to Engineer an inquiry identification number from Underground Services Alert.
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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.

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, 757
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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.

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, 758
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which is available online at:
ftp://ftp.consrv.ca.gov/pub/omr/AB3098%20List/AB3908List.pdf.

Article 8 - Payment

8.1 Schedule of Values. Prior to submitting its first application for payment, Contractor must prepare and submit to the Project Manager a schedule of values apportioned to the various divisions and phases of the Work, including mobilization and demobilization. If a Bid Schedule was submitted with Contractor’s bid, the amounts in the schedule of values must be consistent with the Bid Schedule. Each line item contained in the schedule of values must be assigned a value such that the total of all items equals the Contract Price.

The items must be sufficiently detailed to enable accurate evaluation of the percentage of completion claimed in each application for payment, and the assigned value consistent with any itemized or unit pricing submitted with Contractor’s bid. (A) Measurements for Unit Price Work. Materials and items of Work to be paid for on the basis of unit pricing will be measured according to the methods specified in the Contract Documents.
(B) Deleted or Reduced Work. Contractor will not be compensated for Work that City has deleted or reduced in scope, except for any labor, material or equipment costs for such Work that Contractor reasonably incurred before Contractor learned that the Work could be deleted or reduced. Contractor will only be compensated for those actual, direct and documented costs incurred, and will not be entitled to any mark up for overhead or lost profits.

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

8.3 Adjustment of Payment Application. City may adjust or reject the amount requested in a payment application, including application for Final Payment, in whole or in part, if the amount requested is disputed or unsubstantiated. Contractor will be notified in writing of the basis for the modification to the amount requested. City may also deduct or withhold from payment otherwise due based upon any of the circumstances and amounts listed below. Sums withheld from payment otherwise due will be released when the basis for that withholding has been remedied and no longer exists. (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 759
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withhold or deduct an amount based on the City’s estimated cost to correct or complete the Work.
(B) For loss or damage caused by Contractor or its Subcontractors arising out of or relating to performance of the Work or any failure to protect the Project site, City may deduct an amount based on the estimated cost to repair or replace. (C) For Contractor’s failure to pay its Subcontractors and suppliers when payment is due, City may withhold an amount equal to the total of past due payments and may opt to pay that amount separately via joint check pursuant to Section 8.6(B), Joint Checks. (D) For Contractor’s failure to timely correct rejected, nonconforming, or defective Work, City may withhold or deduct an amount based on the City’s estimated cost to correct or complete the Work.
(E) For any unreleased stop notice, City may withhold 125% of the amount claimed. (F) For Contractor’s failure to submit any required schedule or schedule update in the manner and within the time specified in the Contract Documents, City may withhold an amount equal to five percent of the total amount requested until Contractor complies with its schedule submittal obligations.
(G) For Contractor’s failure to maintain or submit as-built documents in the manner and within the time specified in the Contract Documents, City may withhold or deduct an amount based on the City’s cost to prepare the as-builts. (H) For Work performed without Shop Drawings that have been accepted by City, when accepted Shop Drawings are required before proceeding with the Work, City may deduct an amount based on the estimated costs to correct unsatisfactory Work or diminution in value.
(I) For fines, payments, or penalties assessed under the Labor Code, City may deduct from payments due to Contractor as required by Laws and as directed by the Division of Labor Standards Enforcement.
(J) For any other costs or charges that may be withheld or deducted from payments to Contractor, as provided in the Contract Documents, including liquidated damages, City may withhold or deduct such amounts from payment otherwise due to Contractor.

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

8.5 Retention. City will retain five percent of the full amount due on each progress payment (i.e., the amount due before any withholding or deductions pursuant to Section 8.3, Adjustment to Payment Application), or the percentage stated in the Notice Inviting Bids, whichever is greater, as retention to ensure full and satisfactory performance of the Work.

Contractor is not entitled to any reduction in the rate of withholding at any time, nor to release of any retention before 35 days following City’s acceptance of the Project. (A) Substitution of Securities. As provided by Public Contract Code § 22300, Contractor may request in writing that it be allowed, at its sole expense, to substitute securities for the retention withheld by City. Any escrow agreement entered into pursuant to this provision must fully comply with Public Contract Code § 22300 and will be subject to approval as to form by City’s legal counsel. If City exercises its right to draw upon such securities in the event of default pursuant to section (7) of the statutory Escrow Agreement for Security Deposits in Lieu of Retention, pursuant to subdivision (f) of Public 760
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Contract Code § 22300 (“Escrow Agreement”), and if Contractor disputes that it is in default, its sole remedy is to comply with the dispute resolution procedures in Article 12 and the provisions therein. It is agreed that for purposes of this paragraph, an event of default includes City’s rights pursuant to these Contract Documents to withhold or deduct sums from retention, including withholding or deduction for liquidated damages, incomplete or defective Work, stop payment notices, or backcharges. It is further agreed that if any individual authorized to give or receive written notice on behalf of a party pursuant to section (10) of the Escrow Agreement are unavailable to give or receive notice on behalf of that party due to separation from employment, retirement, death, or other circumstances, the successor or delegee of the named individual is deemed to be the individual authorized to give or receive notice pursuant to section (10) of the Escrow Agreement.
(B) Release of Undisputed Retention. All undisputed retention, less any amounts that may be assessed as liquidated damages, retained for stop notices, or otherwise withheld pursuant to Section 8.3, Adjustment of Payment Application, will be released as Final Payment to Contractor no sooner than 35 days following recordation of the notice of completion, and no later than 60 days following acceptance of the Project by City’s governing body or authorized designee pursuant to Section 11.1(C), Acceptance, or, if the Project has not been accepted, no later than 60 days after the Project is otherwise considered complete pursuant to Public Contract Code § 7107(c).

8.6 Payment to Subcontractors and Suppliers. Each month, Contractor must promptly pay each Subcontractor and supplier the value of the portion of labor, materials, and equipment incorporated into the Work or delivered to the Project site by the Subcontractor or supplier during the preceding month. Such payments must be made in accordance with the requirements of Laws pertaining to such payments, and those of the Contract Documents and applicable subcontract or supplier contract. (A) Withholding for Stop Notice. Pursuant to Civil Code § 9358, City will withhold 125% of the amount claimed by an unreleased stop notice, a portion of which may be retained by City for the costs incurred in handling the stop notice claim, including attorneys’ fees and costs, as authorized by law.
(B) Joint Checks. City reserves the right, acting in its sole discretion, to issue joint checks made payable to Contractor and a Subcontractor or supplier, if City determines this is necessary to ensure fair and timely payment for a Subcontractor or supplier who has provided services or goods for the Project. As a condition to release of payment by a joint check, the joint check payees may be required to execute a joint check agreement in a form provided or approved by the City Attorney’s Office. The joint check payees will be jointly and severally responsible for the allocation and disbursement of funds paid by joint check. Payment by joint check will not be construed to create a contractual relationship between City and a Subcontractor or supplier of any tier beyond the scope of the joint check agreement.

8.7 Final Payment. Contractor’s application for Final Payment must comply with the requirements for submitting an application for a progress payment as stated in Section

8.2, above. Corrections to previous progress payments, including adjustments to estimated quantities for unit priced items, may be included in the Final Payment. If Contractor fails to submit a timely application for Final Payment, City reserves the right to unilaterally process and issue Final Payment without an application from Contractor in order to close out the Project. For the purposes of determining the deadline for Claim submission pursuant to Article 12, the date of Final Payment is deemed to be the date that City acts to release 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 761
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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 or 1720.9, including cleanup at the Project site, must be paid at a rate not less than the prevailing wage as defined in §§ 1771 and 1774 of the Labor Code. The prevailing wage rates are on file with the City and available online at http://www.dir.ca.gov/dlsr. Contractor must post a copy of the applicable prevailing rates at the Project site.
(A) Penalties. Pursuant to Labor Code § 1775, Contractor and any Subcontractor will forfeit to City as a penalty up to $200.00 for each calendar day, or portion a day, for each worker paid less than the applicable prevailing wage rate. Contractor must also pay each worker the difference between the applicable prevailing wage rate and the amount actually paid to that worker.
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(B) Federal Requirements. If this Project is subject to federal prevailing wage requirements in addition to California prevailing wage requirements, Contractor and its Subcontractors are required to pay the higher of the currently applicable state or federal prevailing wage rates.

9.4 Payroll Records. Contractor must comply with the provisions of Labor Code §§ 1776 and 1812 and all implementing regulations, which are fully incorporated by this reference, including requirements for electronic submission of payroll records to the DIR. (A) Contractor and Subcontractor Obligations. Contractor and each Subcontractor must keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed in connection with the Work. Each payroll record must contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
(1) The information contained in the payroll record is true and correct; and (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 763
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include: (1) the name and address of the injured or deceased person; (2) the name and address of each employee of Contractor or of any Subcontractor involved in the incident; (3) a detailed description of the incident, including precise location, time, and names and contact information for known witnesses; and (4) a police or first responder report, if applicable. If Contractor is required to file an accident report with a government agency, Contractor will provide a copy of the report to City.
(B) Legal Compliance. Contractor’s safety program must comply with the applicable legal and regulatory requirements. Contractor must provide City with copies of all notices required by Laws.
(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 764
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exists or is created, Contractor must take all precautions necessary to address the condition and ensure that the Work progresses safely under the circumstances.

Hazardous conditions may result from, but are not limited to, use 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 selfperform the outstanding items or to retain a third party to complete any such outstanding punch list item.
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11.2 Warranty.
(A) General. Contractor warrants that all materials and equipment will be new unless otherwise specified, of good quality, in conformance with the Contract Documents, and free from defective workmanship and materials. Contractor further warrants that the Work will be free from material defects not intrinsic in the design or materials required in the Contract Documents. Contractor warrants that materials or items incorporated into the Work comply with the requirements and standards in the Contract Documents, including compliance with Laws, and that any Hazardous Materials encountered or used were handled as required by Laws. At City’s request, Contractor must furnish satisfactory evidence of the quality and type of materials and equipment furnished. Contractor’s warranty does not extend to damage caused by normal wear and tear, or improper use or maintenance.
(B) Warranty Period. Contractor’s warranty must guarantee its Work for a period of one year from the date of Project acceptance (the “Warranty Period”), except when a longer guarantee is provided by a supplier or manufacturer or is required by the Specifications or Special Conditions. Contractor must obtain from its Subcontractors, suppliers and manufacturers any special or extended warranties required by the Contract Documents.
(C) Warranty Documents. As a condition precedent to Final Completion, Contractor must supply City with all warranty and guarantee documents relevant to equipment and materials incorporated into the Work and guaranteed by their suppliers or manufacturers.
(D) Subcontractors. The warranty obligations in the Contract Documents apply to Work performed by Contractor and its Subcontractors, and Contractor agrees to be 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, 766
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Contractor and its surety are solely responsible for all of City’s attorney’s fees and legal costs expended to enforce Contractor’s warranty obligations herein in addition to any and all costs City incurs to correct the defective Work.

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

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

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.
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(D) No Work Delay. Notwithstanding the submission of a Claim or any other dispute between the parties related to the Project or the Contract Documents, Contractor must perform the Work and may not delay or cease Work pending resolution of a Claim or other dispute, but must continue to diligently prosecute the performance and timely completion of the Work, including the Work pertaining to the Claim or other dispute. (E) Informal Resolution. Contractor will make a good faith effort to informally resolve a dispute before initiating a Claim, preferably by face-to-face meeting between authorized representatives of Contractor and City.

12.2 Claims Submission. The following requirements apply to any Claim subject to this Article:
(A) Substantiation. The Claim must be submitted to City in writing, clearly identified as a “Claim” submitted pursuant to this Article 12 and must include all of the documents necessary to substantiate the Claim including the Change Order request that was rejected in whole or in part, and a copy of City’s written rejection that is in dispute.

The Claim must clearly identify and describe the dispute, including relevant references to applicable portions of the Contract Documents, and a chronology of relevant events. Any Claim for additional payment must include a complete, itemized breakdown of all known or estimated labor, materials, taxes, insurance, and subcontract, or other costs.

Substantiating documentation such as payroll records, receipts, invoices, or the like, must be submitted in support of each component of claimed cost. Any Claim for an extension of time or delay costs must be substantiated with a schedule analysis and narrative depicting and explaining claimed time impacts.
(B) Claim Format and Content. A Claim must be submitted in the following format:
(1) Provide a cover letter, specifically identifying the submission as a “Claim” submitted under this Article 12 and specifying the requested remedy (e.g., amount of proposed change to Contract Price and/or change to Contract Time). (2) Provide a summary of each Claim, including underlying facts and the basis for entitlement, and identify each specific demand at issue, including the specific Change Order request (by number and submittal date), and the date of City's rejection of that demand, in whole or in part.
(3) Provide a detailed explanation of each issue in dispute. For multiple issues included within a single Claim or for multiple Claims submitted concurrently, separately number and identify each individual issue or Claim, and include the following for each separate issue or Claim:
a. A succinct statement of the matter in dispute, including Contractor’s position and the basis for that position;
b. Identify and attach all documents that substantiate the Claim, including relevant provisions of the Contract Documents, RFIs, calculations, and schedule analysis (see subsection (A), Substantiation, above);
c. A chronology of relevant events; and
d. Analysis and basis for claimed changes to Contract Price, Contract Time, or any other remedy requested.
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(4) Provide a summary of issues and corresponding claimed damages. If, by the time of the Claim submission deadline (below), the precise amount of the requested change in the Contract Price or Contract Time is not yet known, Contractor must provide a good faith estimate, including the basis for that estimate, and must identify the date by which it is anticipated that the Claim will be updated to provide final amounts.
(5) Include the following certification, executed by Contractor’s authorized representative:
“The undersigned Contractor certifies under penalty of perjury that its statements and representations in this Claim submittal are true and correct. Contractor warrants that this Claim submittal is comprehensive and complete as to the matters in dispute, and agrees that any costs, expenses, or delay not included herein are deemed waived.”
(C) Submission Deadlines.
(1) A Claim disputing rejection of a request for a change in the Contract Time or Contract Price must be submitted within 15 days following the date that City notified Contractor in writing that a request for a change in the Contract Time or Contract Price, duly submitted in compliance with Article 5 and Article 6, has been rejected in whole or in part. A Claim disputing the terms of a unilateral Change Order must be submitted within 15 days following the date of issuance of the unilateral Change Order. These Claim deadlines apply even if Contractor cannot yet quantify the total amount of any requested change in the Contract Time or Contract Price. If the Contractor cannot quantify those amounts, it must submit an estimate of the amounts claimed pending final determination of the requested remedy by Contractor.
(2) With the exception of any dispute regarding the amount of Final Payment, any Claim must be filed on or before the date of Final Payment or will be deemed waived.
(3) A Claim disputing the amount of Final Payment must be submitted within 15 days of the effective date of Final Payment, under Section 8.7, Final Payment. (4) Strict compliance with these Claim submission deadlines is necessary to ensure that any dispute may be mitigated as soon as possible, and to facilitate cost-efficient administration of the Project. Any Claim that is not submitted within the specified deadlines will be deemed waived by Contractor.

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

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

12.5 Mediation and Government Code Claims.
(A) Mediation. Within ten working days after the City issues the written statement identifying any portion(s) of the Claim remaining in dispute following the meet and confer, City and Contractor will mutually agree to a mediator, as provided under Public Contract Code § 9204. Mediation will be scheduled to ensure the mutual availability of the selected mediator and all of the individuals that each party requires to represent its interests. If there are multiple Claims in dispute, the parties may agree to schedule the mediation to address all outstanding Claims at the same time. The parties will share the costs of the mediator and mediation fees equally, but each party is otherwise solely and separately responsible for its own costs to prepare for and participate in the mediation, including costs for its legal counsel or any other consultants.
(B) Government Code Claims.
(1) Timely presentation of a Government Code Claim is a condition precedent to filing any legal action based on or arising from the Contract. Compliance with the Claim submission requirements in this Article 12 is a condition precedent to filing a Government Code Claim.
(2) The time for filing a Government Code Claim will be tolled from the time Contractor submits its written Claim pursuant to Section 12.2, above, until the time that Claim is denied in whole or in part at the conclusion of the meet and confer process, including any period of time used by the meet and confer process. However, if the Claim is submitted to mediation, the time for filing a 770
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Government Code Claim will be tolled until conclusion of the mediation, including any continuations, if the Claim is not fully resolved by mutual agreement of the parties during the mediation or any continuation of the mediation.

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

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

12.8 Burden of Proof and Limitations. Contractor bears the burden of proving entitlement to and the amount of any claimed damages. Contractor is not entitled to damages calculated on a total cost basis, but must prove actual damages. Contractor is not entitled to speculative, special, or consequential damages, including home office overhead or any form of overhead not directly incurred at the Project site or any other Worksite; lost profits; loss of productivity; lost opportunity to work on other projects; diminished bonding capacity; increased cost of financing for the Project; extended capital costs; nonavailability of labor, material or equipment due to delays; or any other indirect loss arising from the Contract. The Eichleay Formula or similar formula will not be used for any recovery under the Contract. The City will not be directly liable to any Subcontractor or supplier.

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

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

13. Article 13 - Suspension and Termination

13.1 Suspension for Cause. In addition to all other remedies available to City, if Contractor fails to perform or correct Work in accordance with the Contract Documents, including non-compliance with applicable environmental or health and safety Laws, City may immediately order the Work, or any portion of it, suspended until the circumstances giving rise to the suspension have been eliminated to City’s satisfaction. (A) Notice of Suspension. Upon receipt of City’s written notice to suspend the Work, in whole or in part, except as otherwise specified in the notice of suspension, Contractor and its Subcontractors must promptly stop Work as specified in the notice of suspension; comply with directions for cleaning and securing the Worksite; and protect the completed and in-progress Work and materials. Contractor is solely responsible for 771
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any damages or loss resulting from its failure to adequately secure and protect the Project.

(B) Resumption of Work. Upon receipt of the City’s written notice to resume the suspended Work, in whole or in part, except as otherwise specified in the notice to resume, Contractor and its Subcontractors must promptly re-mobilize and resume the Work as specified; and within ten days from the date of the notice to resume, Contractor must submit a recovery schedule, prepared in accordance with the Contract Documents, showing how Contractor will complete the Work within the Contract Time. (C) Failure to Comply. Contractor will not be entitled to an increase in the Contract Time or Contract Price for a suspension occasioned by Contractor’s failure to comply with the Contract Documents.
(D) No Duty to Suspend. City’s right to suspend the Work will not give rise to a duty to suspend the Work, and City’s failure to suspend the Work will not constitute a defense to Contractor’s failure to comply with the requirements of the Contract Documents.

13.2 Suspension for Convenience. City reserves the right to suspend, delay, or interrupt the performance of the Work in whole or in part, for a period of time determined to be appropriate for City’s convenience. Upon notice by City pursuant to this provision, Contractor must immediately suspend, delay, or interrupt the Work and secure the Project site as directed by City except for taking measures to protect completed or inprogress Work as directed in the suspension notice, and subject to the provisions of Section 13.1(A) and (B), above. If Contractor submits a timely request for a Change Order in compliance with Articles 5 and 6, the Contract Price and the Contract Time will be equitably adjusted by Change Order pursuant to the terms of Articles 5 and 6 to reflect the cost and delay impact occasioned by such suspension for convenience, except to the extent that any such impacts were caused by Contractor’s failure to comply with the Contract Documents or the terms of the suspension notice or notice to resume. However, the Contract Time will only be extended if the suspension causes or will cause unavoidable delay in Final Completion. If Contractor disputes the terms of a Change Order issued for such equitable adjustment due to suspension for convenience, its sole recourse is to comply with the Claim procedures in Article 12.

13.3 Termination for Default. City may declare that Contractor is in default of the Contract for a material breach of or inability to fully, promptly, or satisfactorily perform its obligations under the Contract.
(A) Default. Events giving rise to a declaration of default include Contractor’s refusal or failure to supply sufficient skilled workers, proper materials, or equipment to perform the Work within the Contract Time; Contractor’s refusal or failure to make prompt payment to its employees, Subcontractors, or suppliers or to correct defective Work or damage; Contractor’s failure to comply with Laws, or orders of any public agency with jurisdiction over the Project; evidence of Contractor’s bankruptcy, insolvency, or lack of financial capacity to complete the Work as required within the Contract Time; suspension, revocation, or expiration and nonrenewal of Contractor’s license or DIR registration; dissolution, liquidation, reorganization, or other major change in Contractor’s organization, ownership, structure, or existence as a business entity; unauthorized assignment of Contractor’s rights or duties under the Contract; or any material breach of the Contract requirements.

(B) Notice of Default and Opportunity to Cure. Upon City’s declaration that Contractor is in default due to a material breach of the Contract Documents, if City determines that the default is curable, City will afford Contractor the opportunity to cure 772
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the default within ten days of City’s notice of default, or within a period of time reasonably necessary for such cure, including a shorter period of time if applicable. (C) Termination. If Contractor fails to cure the default or fails to expediently take steps reasonably calculated to cure the default within the time period specified in the notice of default, City may issue written notice to Contractor and its performance bond surety of City’s termination of the Contract for default. (D) Waiver. Time being of the essence in the performance of the Work, if Contractor’s surety fails to arrange for completion of the Work in accordance with the Performance Bond within seven calendar days from the date of the notice of termination pursuant to paragraph (C), City may immediately make arrangements for the completion of the Work through use of its own forces, by hiring a replacement contractor, or by any other means that City determines advisable under the circumstances. Contractor and its surety will be jointly and severally liable for any additional cost incurred by City to complete the Work following termination, where “additional cost” means all cost in excess of the cost City would have incurred if Contactor had timely completed Work without the default and termination. In addition, City will have the right to immediate possession and use of any materials, supplies, and equipment procured for the Project and located at the Project site or any Worksite on City property for the purposes of completing the remaining Work.
(E) Compensation. Within 30 days of receipt of updated as-builts, all warranties, manuals, instructions, or other required documents for Work installed to date, and delivery to City of all equipment and materials for the Project for which Contractor has already been compensated, Contractor will be compensated for the Work satisfactorily performed in compliance with the Contract Documents up to the effective date of the termination pursuant to the terms of Article 8, Payment, subject to City’s rights to withhold or deduct sums from payment otherwise due pursuant to Section 8.3, and excluding any costs Contractor incurs as a result of the termination, including any cancellation or restocking charges or fees due to third parties. If Contractor disputes the amount of compensation determined by City, its sole recourse is to comply with the Claim Procedures in Article 12, by submitting a Claim no later than 30 days following notice from City of the total compensation to be paid by City. (F) Wrongful Termination. If Contractor disputes the termination, its sole recourse is to comply with the Claim procedures in Article 12. If a court of competent jurisdiction or an arbitrator later determines that the termination for default was wrongful, the termination will be deemed to be a termination for convenience, and Contractor’s damages will be strictly limited to the compensation provided for termination for convenience under Section 13.4, below. Contractor waives any claim for any other damages for wrongful termination including special or consequential damages, lost opportunity costs, or lost profits, and any award of damages is subject to Section 12.8, Burden of Proof and Limitations.

13.4 Termination for Convenience. City reserves the right, acting in its sole discretion, to terminate all or part of the Contract for convenience upon written notice to Contractor. (A) Compensation to Contractor. In the event of City’s termination for convenience, Contractor waives any claim for damages, including for loss of anticipated profits from the Project. The following will constitute full and fair compensation to Contractor, and Contractor will not be entitled to any additional claim or compensation:
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and unpaid costs for items delivered to the Project site that were fabricated for incorporation in the Work;
(2) Demobilization. Demobilization costs specified in the schedule of values, or if demobilizations cost were not provided in a schedule of values pursuant to Section 8.1, then based on actual, reasonable, and fully documented demobilization costs; and
(3) Termination Markup. Five percent of the total value of the Work performed as of the date of notice of termination, including reasonable, actual, and documented costs to comply with the direction in the notice of termination for convenience, and demobilization costs, which is deemed to cover all overhead and profit to date.
(B) Disputes. If Contractor disputes the amount of compensation determined by City pursuant to paragraph (A), above, its sole recourse is to comply with the Claim procedures in Article 12, by submitting a Claim no later than 30 days following notice from City of total compensation to be paid by City.

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

13. Payment will be made in accordance to the provisions of Article 8, based on the portion of the Work satisfactorily completed, including the close out requirements, and consistent with the previously submitted schedule of values and unit pricing, including demobilization costs. Adjustments to Final Payment may include deductions for the cost of materials, supplies, or equipment retained by Contractor; payments received for sale of any such materials, supplies, or equipment, less re-stocking fees charged; and as otherwise specified in Section 8.3, Adjustment of Payment Application. (E) Continuing Obligations. Regardless of any Contract termination, Contractor’s obligations for portions of the Work already performed will continue and the provisions of the Contract Documents will remain in effect as to any claim, indemnity obligation, warranties, guarantees, submittals of as-built drawings, instructions, or manuals, record maintenance, or other such rights and obligations arising prior to the termination date.

Article 14 - Miscellaneous Provisions

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

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

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

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

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

14.6 Survival. The provisions that survive termination or expiration of this Contract include Contract Section 11, Notice, and subsections 12.1, 12.2, 12.3, 12.4, 12.5, and 12.6, of Section 12, General Provisions; and the following provisions in these General Conditions:

Section 2.2(J), Contractor’s Records, Section 2.3(C), Termination, Section 3.7, 775
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Ownership, Section 4.2, Indemnity, Article 12, Dispute Resolution, and Section 11.2, Warranty.

END OF GENERAL CONDITIONS
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Special Conditions

1. Authorized Work Days and Hours.

1.1 Authorized Work Days. Except as expressly authorized in writing by City, Contractor is limited to performing Work on the Project on the following days of the week, excluding holidays observed by City:

Monday through Friday.

1.2 Authorized Work Hours. Except as expressly authorized in writing by City, Contractor is limited to performing Work on the Project during the following hours:

Monday through Friday: 7:00 a.m. – 5:00 p.m. local time If Contractor is authorized in writing by the City to perform Work on weekends, Contractor is limited to performing Work on the Project during the following hours:

Saturday: 9:00 a.m. – 5:00 p.m.

Sunday: 9:00 a.m. – 4:00 p.m.

1.3 Worker Arrival and Parking. Workers may arrive at the Project site no earlier than 7:00 a.m.

1.4 Equipment and Material Delivery and Off-Haul Hours. No equipment or material may be delivered or off-hauled except between the hours of 7:00 a.m. and 5:00 p.m. No equipment that has a safety backup beeper may be operated before 7:00 a.m. on any day.

2. Noise Limitation. No non-construction noise will be allowed, this includes amplified music, radio or other noise not due to construction activities.

3. Pre-Construction Conference. City will designate a date and time for a preconstruction conference with Contractor following Contract execution. Project administration procedures and coordination between City and Contractor will be discussed, and Contractor must present City with the following information or documents at the meeting for City’s review and acceptance before the Work commences:

3.1 Name, 24-hour contact information, and qualifications of the proposed on-site superintendent;

3.2 List of all key Project personnel and their complete contact information, including email addresses and telephone numbers during regular hours and after hours;

3.3 Staging plans that identify the sequence of the Work, including any phases and alternative sequences or phases, with the goal of minimizing the impacts on residents, businesses and other operations in the Project vicinity;

3.4 If required, traffic control plans associated with the staging plans that are signed and stamped by a licensed traffic engineer;

3.5 Draft baseline schedule for the Work as required under Section 5.2, to be finalized within ten days after City issues the Notice to Proceed;

3.6 Breakdown of lump sum bid items, to be used for determining the value of Work completed for future progress payments to Contractor;
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3.7 Schedule with list of Project submittals that require City review, and list of the proposed material suppliers;

3.8 Plan for coordination with affected utility owner(s) and compliance with any related permit requirements;

3.9 Videotape and photographs recording the conditions throughout the preconstruction Project site, showing the existing improvements and current condition of the curbs, gutters, sidewalks, signs, landscaping, streetlights, structures near the Project such as building faces, canopies, shades and fences, and any other features within the Project area limits; and

3.10 Any other documents specified in the Special Conditions or Notice of Potential Award.

4. Insurance Requirements. The insurance requirements under Section 4.3 of the General Conditions are modified for this Contract, as set forth below. Except as expressly stated below, all other provisions in Section 4.3 are unchanged and remain in full force and effect.

4.1 Pollution Liability Insurance Waived. The pollution liability insurance policy requirement set forth in subsection 4.3(A)(4) of the General Conditions is hereby waived and does not apply to this Contract.

4.2 Builders Risk Insurance Waived. The builder’s risk insurance policy requirement set forth in subsection 4.3(A)(5) of the General Conditions is hereby waived and does not apply to this Contract.

5. Construction Manager Role and Authority. 4Leaf or CSG Consultants will be the Construction Manager for this Project. The Construction Manager will assist City in the management of the construction of the Project. The Construction Manager may perform services in the areas of supervision and coordination of the work of Contractor and/or other contractors, scheduling the Work, monitoring the progress of the Work, providing City with evaluations and recommendations concerning the quality of the Work, recommending the approval of progress payments to Contractor, or other services for the Project in accordance with the Construction Manager’s contract with City.

5.1 Communications. Contractor must submit all notices and communications relating to the Work directly to the Construction Manager in writing, as follows:

To be Determined
With a copy to the Engineer:

Susan Michael, CIP Manager
City of Cupertino
[email protected]
408-777-1328

5.2 On-Site Management and Communication Procedures. The Construction Manager will provide and maintain a management team on the Project site to provide contract administration as an agent of City, and will establish and implement coordination and communication procedures among City, the Design Professional, Contractor, and others.
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5.3 Contract Administration Procedures. The Construction Manager will establish and implement procedures for reviewing and processing requests for clarifications and interpretations of the Contract Documents, Shop Drawings, samples, other submittals, schedule adjustments, Change Order proposals, written proposals for substitutions, payment applications, and maintenance of logs.

5.4 Pre-Construction Conference. Contractor will attend the pre-construction conference, during which the Construction Manager will review the Contract administration procedures and Project requirements.

5.5 Contractor’s Construction Schedule. The Construction Manager will review Contractor’s construction schedules and will verify that each schedule is prepared in accordance with the requirements of the Contract Documents.

6. Lines and Grades Verification. All Work must be done to the lines, grades, and elevations indicated on the Plans and Specifications, and in accordance with all applicable codes and laws. Contractor is required to verify forms and other work comply with lines, grades and elevations. Prior to pouring or placing any concrete or asphalt Contractor must have a California licensed land surveyor or civil engineer field verify lines, grades and elevations prior to proceeding with the placement of concrete or asphalt. The land surveyor or civil engineer must have at least five years of relevant experience, and must be acceptable to the City. Contractor must provide City verification of the licensing and experience for each proposed land surveyor or civil engineer.

Contractor must provide City with inspection results for form and grade work. Contractor must remedy any non-compliant Work at no additional cost to City.

7. Bond Act Sign. The Contractor shall install a sign acknowledging the California Drought, Water, Parks, Climate, Coastal Protection, and Outdoor Access for All Act of 2018 as the funding source for the project. The sign must be installed before construction and remain in place after the date of project completion. The size and information on the sign shall be per the Procedural Guide for the California Drought, Water, Parks, Climate, Coastal Protection, and Outdoor Access for All Act of 2018 Per Capita Program dated September 2020 or after. No additional compensation will be paid for installation of the sign and maintenance until after the date of project completion.

8. Construction and Demolition Debris Management Plan
A completed construction and demolition (C&D) Debris Management Plan must be submitted using the City’s Green Halo on-line application. All debris disposal and recycling from the construction project must be tracked throughout the duration of the project. The contractor must use Green Halo cupertino.wastetracking.com to create their Plan and to submit all construction waste generation tonnage information. No additional compensation will be paid for implementation of the Debris Management Plan and failure to meet all plan requirements may result in work stoppage, fines, and/or backcharges. For additional information, visit www.cupertino.org/greendev

9. Mitigation Measures
The following construction impact mitigation measures shall be observed at all times:

9.1 All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved access roads) shall be watered two times per day.

9.2 All haul trucks transporting soil, sand, or other loose material off-site shall be covered.

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9.3 All visible mud or dirt track-out onto adjacent public roads shall be removed using wet power vacuum street sweepers at least once per day. The use of dry power sweeping is prohibited.

9.4 All vehicle speeds on unpaved roads shall be limited to 15 mph.

9.5 All roadways, driveways, and sidewalks to be paved shall be completed as soon as possible. Building pads shall be laid as soon as possible after grading unless seeding or soil binders are used.

9.6 Idling times shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to 5 minutes (as required by the California airborne toxics control measure Title 13, Section 2485 of California Code of Regulations [CCR]). Clear signage shall be provided for construction workers at all access points.

9.7 All construction equipment shall be maintained and properly tuned in accordance with manufacturer’s specifications. All equipment shall be checked by a certified mechanic and determined to be running in proper condition prior to operation.

9.8 Post a publicly visible sign with the telephone number and person to contact at the Lead Agency regarding dust complaints. This person shall respond and take corrective action within 48 hours. The Air District’s phone number shall also be visible to ensure compliance with applicable regulations.

9.9 The project shall utilize off-road diesel-powered construction equipment that is rated by the U.S. Environmental Protection Agency (EPA) as Tier 4 or higher for equipment more than 25 horsepower. Any emissions control device used by the contractor shall achieve emissions reductions that are no less than what could be achieved by a Tier 4 interim emissions standard for a similarly sized engine, as defined by the California Air Resources Board’s (CARB) regulations. Applicable construction documents shall clearly show the selected emission reduction strategy for construction equipment over 25 horsepower.

9.10 The construction contractor shall maintain a list of all operating equipment in use on the project site for verification by the City. The construction equipment list shall state the makes, models, and number of construction equipment onsite.

9.11 Provide a proposed noise notice sign which includes permitted construction days and hours, as well as the telephone numbers of the City’s and contractor’s authorized representatives that are assigned to respond in the event of a noise or vibration complaint. This sign shall be posted at job site entrances at least 10 days prior to the commencement of construction activities and shall remain in place until construction concludes.

9.12 Haul routes shall avoid the greatest amount of sensitive use areas and submit to the City of Cupertino Public Works Department for approval prior to the start of the construction phase.

9.13 During the entire active construction period and to the extent feasible, the use of noise producing signals, including horns, whistles, alarms, and bells will be for safety warning purposes only. The Contractor will use smart back-up alarms, which automatically adjust the alarm level based on the background noise level or switch off back-up alarms and replace with human spotters in compliance with all safety requirements and law.
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10. Notification of Residents, Schools and Businesses – The Contractor shall notify, in writing, residents, businesses and schools within a 300 foot radius of project limits at a minimum of two times prior to start of construction. The first notice shall be given to all residents, businesses and schools within the project area five working days prior to any construction operation. The second notice shall be given to residents, businesses and schools two working days prior to any construction operation. Both notices shall be in writing and submitted to the Engineer for review and approval.

Sample notice is below. Notices shall include the project name, describe the nature and duration of the Contractor’s operations, and provide a toll-free telephone number or (408) area code number at which a Contractor’s representative may be contacted 24 hour per day for problems or emergencies encountered by residents and/or businesses.

Answering machines and voice mail shall not be permitted. Then notice will also contain the City’s Construction Management contact information. A separate notice shall be given at least two working days prior to any anticipated service/utility disruption or temporary closure of access to any driveway. The notice shall indicate the duration of the disruption. The Contractor shall submit a written request to the Engineer regarding the temporary closure of access to any driveway. No driveway access shall be closed by the Contractor at any time without prior written authorization from the Engineer. If construction operations are delayed for any reason beyond the duration stipulated in the notices, the Contractor shall re-issue written notices that explain the delay and provide a revised schedule. All written notices to residents, schools, businesses, agencies, etc. shall be submitted to the City for review and approval. Provide the City with a schedule of the notification deliveries so that the City can confirm that the notification was completed.

Payment for compliance with this section shall be deemed included in the various other items of work, and no additional compensation will be allowed therefore.

SAMPLE NOTICE:

NOTICE TO RESIDENTS / BUSINESS OWNERS
Date: [MONTH] [DAY], [YEAR]
Subject: [NAME OF PROJECT] – [One Week OR Two Day] Notice This notice is to inform you that the City of Cupertino, Department of Public Works, has contracted with [CONTRACTOR NAME] to [SCOPE OF WORK] along [STREET NAME] from [ADJACENT CROSS STREET] to [ADJACENT CROSS STREET].

This [SCOPE OF WORK] will mainly occur on [WEEKDAYS, SEE “SCHEDULE OFWORKING DAYS/HOURS”] from [START TIME] to [END TIME] and is scheduled to start in your area APPROXIMATELY seven days from the date of this notice and will continue from [START DATE] until [END DATE]. Please be aware that there may be construction activities that cause traffic delays.
[CONTRACTOR NAME] will make every effort to maintain normal traffic access and minimize disruption in your neighborhood. No Parking / Tow-Away signs will be posted in affected areas two working days in advance of enforcement. Access to driveways will be maintained at ALL times during the construction.

Prior to activities in your immediate area, you will be sent a notification TWO WORKING DAYS before work begins. [CONTRACTOR NAME] and the City of Cupertino, Department of Public Works, apologize for any inconvenience due to these activities. If you have any questions or need assistance as these activities progress, please call the number(s) listed below:
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[CONTRACTOR NAME]
[NAME OF PROJECT MANAGER, CONTRACTOR)
Project Manager
(XXX) XXX-XXXX (24-hour number)
City of Cupertino
(NAME OF CONSTRUCTION MANAGEMENT FIRM IF ONE)
(PERSON’S NAME FROM CONSTRUCTION MANAGEMENT FIRM)
(XXX) XXX-XXXX (24-hour number)
City Office: (408)777-3354 Department of Public Works
Thank you for your patience and cooperation,
[NAME OF PROJECT MANAGER, CONTRACTOR], Project Manager
[NAME OF CONSTRUCTION FIRM]

END OF SPECIAL CONDITIONS
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Technical Specifications
SECTION 01 20 00

MEASUREMENT AND PAYMENT
PART 1 – GENERAL

1.1 SECTION INCLUDES
A. Methods of Measurement
B. Description of Bid Items

1.2 METHODS OF MEASUREMENT
A. Materials and items of work which are to be paid for on the basis of measurement shall be measured in accordance with the method stipulated in the particular sections involved. In determining quantities, all measurements shall be made in a horizontal plane unless otherwise specified.

B. Measurement shall be in accordance with U.S. Standard Measures. A pound is an avoirdupois pound. A ton is 2,000 pounds avoirdupois. The unit of liquid measure is the U.S. gallon. The unit of length is feet. The unit of volume is cubic yards.

C. Material not used from a transporting vehicle shall be determined by the City Engineer and deducted from the certified tag.

D. When material is to be measured and paid for on a volume basis and it would be impractical to determine the volume, or when requested by the Contractor in writing and approved by the City Engineer in writing, the material will be weighed and converted to volume measurement for payment purposes. Factors for conversion from weight measurement to volume measurement will be determined by the City Engineer and shall be agreed to by the Contractor before such method of measurement of pay quantities will be adopted.

E. Full compensation for all expense involved in conforming to the above requirements for measuring and weighing materials shall be considered as included in the unit prices paid for the materials being measured or weighed and no additional allowances will be made therefore.

F. Quantities of material wasted or disposed of in a manner not called for under the contract; or rejected loads of material, including material rejected after it has been placed by reason of failure of the Contractor to conform to the provisions of the Contract; or material not unloaded from the transporting vehicle; or material placed outside the lines indicated on the plans or given by the City Engineer; or material remaining on hand after completion of the Contract, will not be paid for and such quantities will not be included in the final total quantities. No compensation will be allowed for hauling rejected material.

G. Bid items include all work necessary to complete the specific item described and not otherwise included in other bid items. The Contractor shall include each bid item all costs required to construct the work in accordance with the Contract Documents and as identified below.

1.3 DESCRIPTION OF BID ITEMS
A. Bid Item #1: Mobilization
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1. The lump sum bid price for this item shall constitute full compensation for mobilization including but not limited to equipment shipping and delivery, equipment set up, materials shipping and delivery, equipment set up, materials shipping and delivery, utility coordination, permitting, removal of equipment and project closeout. The Mobilization bid item shall not be in excess of five percent (5%) of the total bid schedule. Twenty-five percent (25%) of the total Mobilization bid price shall be considered the cost of Demobilization and will not be paid until completion of the work.

B. Bid Item #2: Modify Irrigation

1. The lump sum bid price for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary to provide any irrigation modification as required in the Contract Documents.

C. Bid Item #3: Clearing and Grubbing

1. The lump sum bid price for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary to provide Clearing and Grubbing required for the work as required in the Contract Documents.

D. Bid Item #4: Temporary Construction Fencing

1. The lump sum bid price for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary to provide all temporary fencing as required in the Contract Documents.

E. Bid Item #5: Temporary Drainage Inlet Protection

1. The unit price per inlet shall constitute full compensation for all material, labor, equipment, tools, and services necessary to provide inlet protection as required in the Contract Documents.

F. Bid Item #6: Remove Existing Drainage Inlet and Piping

1. The lump sum bid price for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary to remove the existing drainage outlet and pipe as required in the Project Plans.

G. Bid Item #7: Remove Asphalt Walkway

1. The unit bid price per square foot for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary to remove the existing asphalt walkway as required in the Project Plans.

H. Bid Item #8: Court and Walkway Excavation

1. The unit bid price per cubic yard for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary for excavation for the court and walkway as required in the Project Plans.

I. Bid Item #9: Imported Engineered Fill

1. The unit bid price per cubic yard for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary to place imported engineered fill in the court and walkway area as required in the Project Plans.

J. Bid Item #10: Class 2 Aggregate base

1. The unit bid price per cubic yard for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary for excavation for the court and walkway as required in the Project Plans.

K. Bid Item #11: Minor Concrete Walkway
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1. The unit bid price per square foot for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary to construct the concrete walkway as required by the Project Plans.

L. Bid Item #12: Contour Grading Backfill

1. The unit bid price per cubic yard for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary to place backfill on site as required by the Project Plans.

M. Bid Item #13: Hot Mix Asphalt (Type A)

1. The unit bid price per ton for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary to place 4” of Type A hot mix asphalt as required in the Project Plans.

N. Bid Item #14: Concrete Mowband

1. The unit bid price per linear foot for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary to install the concrete mowband as required in the Project Plans.

O. Bid Item #15: 24” CIDH Pier

1. The unit bid price per pier shall constitute full compensation for all material, labor, equipment, tools, and services necessary to place 24” concrete piers as required in the Project Plans

2. Price shall include pier excavation.

3. Price shall include reinforcement.

P. Bid Item #16: Drainage Swale With Underdrain, Inlet and Cleanouts

1. The lump sum bid price for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary to install the concrete swale as required in the Project Plans
Q. Bid Item #17: Basketball Hoop Equipment

1. The unit price per goal shall constitute full compensation for all material, labor, equipment, tools, and services necessary to install goal posts, backboards, hoops and nets as required in the Project Plans.

R. Bid Item #18: Surface Paint System

1. The unit bid price per square foot for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary to apply surface coating system per manufacturer’s recommendations and as required in the project plans.

S. Bid Item #19: Line Marking

1. The lump sum bid price for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary to provide line marking as required in the Project Plans.

T. Bid Item #20: Hydroseed Disturbed Areas

1. The lump sum bid price for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary to hydroseed all disturbed areas as required in the Project Plans.

U. Bid Alternate Item #A-1.1: Deduct Court and Walkway Excavation

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compensation for all material, labor, equipment, tools, and services necessary for excavation for the court and walkway as required by the Contract Documents for bid alternate one.

V. Bid Alternate Item #A-1.2: Deduct Contour Grading Backfill

1. Deduct payment for Contour Grading Backfill shall constitute full compensation for all material, labor, equipment, tools, and services necessary to place backfill on site as required by the Contract Documents for bid alternate one.

W. Bid Alternate Item #A-1.3: Deduct Imported Engineered Fill

1. Deduct payment for Imported Engineered Fill shall constitute full compensation for all material, labor, equipment, tools, and services necessary to place imported engineered fill in the court and walkway area as required by the Contract Documents for bid alternate one.

X. Bid Alternate Item #A-1.4: Court and Walkway Lime Treated Sub-Base

1. The unit bid price per cubic yard for this item shall constitute full compensation for all material, labor, equipment, tools, and services necessary for sub-base lime treatment as required by the Contract Documents for bid alternate one.

END OF SECTION
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SECTION 01 56 39

TEMPORARY TREE PROTECTION
PART 1 – GENERAL

1.1 RELATED DOCUMENTS
A. Drawings and General Provisions of Contract, including Special Provisions and all Specification sections, may apply to work of this section.

B. Related Sections

1. SECTION 31 10 00 – SITE CLEARING

2. SECTION 31 20 00 – EARTH MOVING

3. SECTION 32 84 00 – IRRIGATION WORK

4. SECTION 32 90 00 - PLANTING

5. SECTION 32 91 13 – SOIL PREPERATION

1.2 DESCRIPTION OF WORK
A. Protection and operational requirements of working around existing trees, as shown on the plans. Including but not limited to protection of root zones, tree trunk and canopy.

B. These tree protection specifications apply to any existing tree on site that will not be removed and will be within or near any area where demo or construction will occur. This includes any tree that is not located in an area that is completely fenced off from construction with a perimeter construction fence. If any portion of the canopy of a tree outside the construction zone overhangs a perimeter construction fence, these specifications shall apply to such trees as well.

C. Preconstruction reviews.

D. Tree protection fencing and other requirements of tree protections measures.

E. Pruning, irrigation and maintenance during construction.

1.3 REFERENCED STANDARDS
A. American Society of Consulting Arborists (ASCA).

B. Best Management Practices. Tree Pruning. 2008. International Society of Arboriculture, PO Box 3129, Champaign, IL 61826-3129. 217-355-9411.

C. ANSI Z1331 American National Standards for Tree Care Operations. 2006 Edition. National Arborist Association, Inc. American National Standards Institute, 11 West 42nd St., New York, New York, 10036. (Covers safety) D. ANSI A300 Pruning Standards. 2008 Edition. Ibid. (Covers tree care methodology)
E. Pruning practices shall conform to recommendations “Structural Pruning: A Guide for the Green Industry”; Published by Urban Tree Foundation, Visalia, California; most current edition.

F. Glossary of Arboricultural Terms, International Society of Arboriculture, Champaign IL, most current edition.
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1.4 DEFINITIONS
A. City’s Representative: The person appointed by the City to represent their interest in the review and approval of the work and to serve as the contracting authority with the Contractor. The City’s Representative may appoint other persons to review and approve any aspects of the work.

B. Reasonable and reasonably: When used in this specification is intended to mean that the conditions cited will not affect the establishment or long-term stability, health or growth of the plant. This specification recognizes that plants are not free of defects, and that plant conditions change with time. This specification also recognizes that some decisions cannot be totally based on measured findings and that profession judgment is required. In cases of differing opinion, the City’s Representative expert shall determine when conditions within the plant are judged as reasonable.

C. Shrub: Woody plants with mature height approximately less than 25 feet.

D. Tree and Plant Protection Area: Area surrounding individual trees, groups of trees, shrubs, or other vegetation to be protected during construction, and defined by a circle centered on the trunk with each tree with a radius equal to the crown dripline unless otherwise indicated by the City’s representative.

E. Tree: Single and multi-stemmed plants, including palms with anticipated mature height approximately greater than 25 feet or any plant identified on the plans as a tree.

1.5 SUBMITTALS:

A. Product Data: Submit manufacturer product data and literature describing all products required by this section to the City’s Representative for approval.

Provide submittal four weeks before the start of any work at the site.

1.6 PRE-CONSTRUCTION CONFERENCE
A. Prior to commencement of any construction activities, schedule a pre-construction meeting with the City’s representative, at least seven (7) days prior to beginning of work. Review of tree protection measures and project work schedule, as well as any questions the contractor may have will be discussed.

1. The following shall attend the conference:
a. General Contractor
b. Contractor’s Project Arborist
c. City’s Representative
d. Subcontractors, including those involved with demolition, earthwork, planting and irrigation.
e. Subcontractors responsible for work in areas adjacent to the existing trees to remain.

B. Prior to this meeting, mark all trees to remain. Provide sample of tree protection zone fencing for review.

1.7 QUALITY ASSURANCE
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A. Arborist qualifications

1. Arborist shall be a registered Consulting Arborist® (RCA) with American Society of Consulting Arborists or an ISA Board Certified Master Arborist and have a minimum of 5 years of experience.

B. Contractor qualifications

1. All pruning, branch tie back, tree removal, root pruning, and fertilizing required by this section shall be performed by or under the direct supervision of ISA Certified Arborist Submit aforementioned individual’s qualifications for approval by the City’s Representative.

C. Certified Pest Applicator Qualifications

1. All applications of pesticide or herbicide shall be performed by a person maintaining a current state license to apply chemical pesticides valid in the jurisdiction of the project. Submit copies of all required state licensing certificates including applicable chemical applicator licenses.

PART 2 – PRODUCTS

2.1 PROTECTION FENCING
A. Protective fencing shall be at least four (4) feet high, clearly visible, mounted on steel post. Fencing shall comply with Caltrans Standard Specification 16-2.03 Temporary High Visibility Fence
B. Posts shall be 2” x 6’ galvanized steel posts driven into the ground with 8’ minimum spacing between posts.

2.2 SIGNAGE
A. Laminated 8 ½” x 11 paper or metal.

B. Signs, 8.5 inches x 11 inches, white colored background with black 2 inch high or larger block letters. The signs shall be attached to the tree protection fence every 20 feet o.c.

C. The tree protection sign shall read “Keep Out – Tree Protection Zone” in 2” high or larger letters. Beneath this in ¾” high letters, sign shall read: “No unauthorized entry, storage of construction materials or debris, or vehicle or equipment will be allowed within fence. See “City of Cupertino Tree Protection Requirements”.

2.3 MATTING
A. Matting for vehicle and work protection shall be heavy duty matting designed for vehicle loading over tree roots, Alturnamats as manufactured by Alturnamats, Inc.

Franklin, PA 16323 or approved equal.

B. Submit supplier’s product data that product meets the requirements for approval.

2.4 GEOGRID
A. Geogrid shall be woven polyester fabric with PVC coating, Uni-axial or biaxial geogrid, inert to biological degradation, resistant to naturally occurring chemicals, alkalis, acids.

1. Geogrid shall be Miragrid 2XT as manufactured by Ten Cate Nicolon, 789
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Norcross, GA. http://www.tencate.com or approved equal.

B. Submit supplier’s product data that product meets the requirements for approval.

2.5 FILTER FABRIC
A. Filter Fabric shall be nonwoven polypropylene fibers, inert to biological degradation and resistant of naturally occurring chemicals, alkalis and acids.

1. Mirafi 135 N as manufactured by Ten Cate Nicolon, Norcross, GA. http://www.tencate.com or approved equal.

B. Submit supplier’s product data that product meets the requirements for approval.

2.6 MULCH
A. Mulch shall be coarse, ground, from tree and woody brush sources. The minimum range of fine particles shall be 3/8 inch or less in size and a maximum size of individual pieces shall be approximately 1 to 1-1/2 inch in diameter and maximum length of approximately 4 to 8 inches. No more that 25% of the total volume shall be fine particles and no more than 20% of total volume be large pieces.

B. Submit supplier’s product data that product meets the requirements and one quart sample sealed in a container, for approval.

PART 3 – EXECUTION

3.1 GENERAL TREE PROTECTION
A. Prior to construction activities, the General Contractor shall hire a Project Arborist to prepare an Arborist Report and Evaluation of the existing trees designated on the plans to remain and be protected. The Project Arborist shall be contracted to perform observation services throughout the project schedule, including but not limited to the following:

1. Pre-construction conference.

2. Tree Protection Zone / Fencing Review meeting.

3. Monthly progress evaluations and field report.

4. On-site observation and review as needed during constructions activities.

5. Valuation of any trees damaged during construction.

B. The General Contractor is responsible to see that these tree protection specifications are implemented and that all people working at the site are aware and adhere to these specifications. A copy of these Specifications is to remain and be accessible at the site at all times.

C. The General Contractor is responsible for coordination of all subcontractors that may impact tree health.

D. Contractor shall repair or replace all existing trees, shrubs, or ground cover vegetation not designated for removal that are damaged by construction operations, in a manner acceptable to City’s Representative. This may include the hiring of a licensed arborist by the Contractor to provide repair recommendations, per the discretion of the City’s Representative.

E. The Tree and Plant Protection Area or Zone is defined as all areas indicated on the tree protection plan. Where no limit of the Tree and Plant Protection area is 790
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defined on the drawings, the limit shall be the drip line (outer edge of the branch crown) of each tree.

1. Prior to any construction activity at the site including utility work, grading, storage of materials, or installation of temporary construction facilities, install all tree protection fencing, Filter Fabric, silt fence, tree protection signs, Geogrid, Mulch and or Wood Chips as shown on the drawings, or as designated by the Project Arborist.

F. No vehicle parking or equipment storage shall be allowed within drip lines of trees not designated for removal.

1. If unavoidable vehicle traffic within the tree protection zone is necessary, protection of the soil to reduce compaction must be accomplished through one of the following:
a. Apply 6-12” of woodchip mulch to the area.
b. Lay plywood or 4x4 wood beams over a 4” thick layer of wood chip mulch. c. Apply 4 to 6” of gravel over a taut, staked geotextile fabric. d. Placing commercial matting on top of a 4” thick woodchip mulch later.

2. Materials exceeding 4” in depth shall be removed after work in the area has been completed, to allow the roots to breath.

G. No dumping of cement tailings, chemicals or other waste products into any future landscape area and the tree protection area. Storage of materials, refuse, excavated spoils or dumping of poisonous materials on or around trees and roots.

Poisonous materials include, but are not limited to, paint, petroleum products, concrete or stucco mix, dirty water or any other material which may be deleterious to tree health.

H. The use of tree trunks as a winch support, anchorage, as a temporary power pole, sign posts or other similar function is prohibited within the tree protection fence.

I. Trees to be removed/demolished shall be chipped on site. Store chips onsite in an area designated by the City’s Representative or within tree protection zones.

These chips shall be used as mulch for trees to remain as determined by the City’s representative or consulting arborist. Trees with allelopathic inhibitors, such as Black Walnut or Eucalyptus, are not allowed to be chipped and used on site, but must be hauled off site.

J. Any damage or injury to trees shall be reported within six hours (6 hr.) to the Project Arborist and job superintendent so that mitigation can take place. All mechanical or chemical injury to branches, trunk or to roots over two inches (2”) in diameter shall be reported in the monthly inspection report.

1. Root injury: SEE 3.04 Root Treatment.

2. Bark or trunk wounding: Current bark tracing and treatment methods shall be performed by a qualified tree care specialist within two (2) days.

3. Scaffold branch or leaf canopy injury: Remove broken or torn branches back to an appropriate branch capable of resuming terminal growth within five (5) days. If leaves are heat scorched from equipment exhaust pipes, consult the Project Arborist within six (6) hours.

3.2 PRE-DEMOLITION / CONSTRUCTION
A. The demolition contractor shall meet with the City’s representative before 791
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beginning work to discuss work procedures and tree protection. No cutting of any part of project trees, including roots, shall be done without securing approval and direct supervision from the City.

B. Contractor shall tag and identify existing trees which are to remain within the project limits PRIOR to start of any work. Tree Protection fencing as described in

3.01 D shall be installed.

C. Existing groundcover or lawn shall be left in place and not ripped out until necessary and permanent irrigation and mulch is installed. When clearing is required, it shall be accomplished with hand-operated equipment.

D. Pruning

1. Pruning shall be performed by a qualified tree service with an ISA Certified Arborist on staff, in a supervisory position for the work, and pre-approved by the Project Arborist. The tree pruner shall follow the most current version of the arboriculture industry standards- See References.

2. Pruning protected trees prior to construction should be as little as possible, and only what is required for demolition and construction clearance from structures and activities. Trees shall be pruned to reduce hazards and develop a strong framework. Aesthetic pruning can be done later, if necessary. Branches that must be shortened should be cut back to appropriately sized lateral branches whenever possible, and not to stubs.

3. If urgent pruning is necessary for immediate construction clearance this may be done by the general or demolition contractor. In this case a short stub should be left which can be removed by a qualified tree service at a later time.

Please consult with the arborist prior to such pruning.

4. Where temporary clearance is needed for access, branches shall be tied back to hold them out of the clearance zone.

5. Pruning shall not be performed during periods of flight of adult boring insects because fresh wounds attract pests. Pruning shall be performed only when the danger of infestation is past.

6. Pruning cuts that expose heartwood and are larger than 4” in diameter shall be avoided.

7. No more than 25% of foliage shall be removed within the trees.

8. Interior branches shall not be stripped out.

9. Tree(s) to be removed that have branches extending into the canopy of tree(s) to remain must be removed by an International Society of Arboriculture (ISA) qualified arborist or tree worker and not by demolition or construction contractors. The qualified arborist shall remove the tree in a manner that causes no damage to the tree(s) and understory to remain.

10. Where tree specific disease vectors require, sterilize all pruning tools between the work in individual trees, per ISA standards.

E. Tree Root Pruning

1. Root prune as directed by the Project Arborist, if required.

F. Mulch

1. Refer to 3.06 MULCH below for further information.

G. Fertilizer

1. Apply a single dose of fertilizer to protected trees per the Project Arborist 792
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recommendation prior to construction, if required.

3.3 FENCING AND SIGNAGE
A. Before any construction may commence, the Contractor shall provide and install temporary fencing to protect all existing trees and vegetation not designated for removal. Protective fencing shall be placed at a distance of 6 times the diameter of the tree’s trunk measured 4.5 feet above the natural grade.

B. If fence must be placed on an impermeable surface, the post must be inserted into post stands. If the impervious surface is later removed, the posts must be replaced into the ground.

C. Allow a 24” gap between one set of posts to provide access for tree work and monitoring.

D. If it is not possible to fence a tree, then the Contractor shall wrap the trunk with 2” x 4” vertically stacked lumber from the ground up, with a gap of 1” to 2” between the boards, fastened to the tree with rope or metal straps at the top, bottom and middle of its height. The lumber is then wrapped in 2 layers of orange plastic ski fencing. Such trees also require ground protection underneath as much of the dripline as possible.

E. Tree protection signage shall be posted on the fencing every 20 feet and attached with ties on all four corners. Signage shall proclaim that there shall be no unauthorized work or persons within the tree protection zone, no dumping of chemicals or storage of materials or equipment, and who to contact regarding this.

3.4 TREE ROOT TREATMENT
A. Preconstruction root exploration is necessary for all existing trees adjacent to trenching, grade reduction or other activities that require exposure or removal of soil from the critical root zone. Roots shall be located using non-invasive exploration procedures, such as hand digging using small tools, pressurized water or a pneumatic air device, such as an Air-Spade®. This tool uses compressed air to displace soil without damage to roots. Once exposed, the roots can be examined and determinations by the City’s representative and/or the Project Arborist are made regarding the feasibility of root removal or root severance.

B. Contractor shall notify the City’s Representative if any roots over 2” in diameter are required to be cut. In this case, all work within the drip line of the tree shall be suspended until notified by the City’s Representative and/or Project Arborist.

C. Methods of root pruning (in order of preference):

1. Selective root cutting after exposing the roots as indicated in 3.04A, leaving roots intact (digging underneath) when possible.

2. Cutting roots with a root cutting machine (e.g. Dosco or Vermeer root pruner) along a predetermined line on the surface. Cleanly cut necessary roots. Bark should adhere to the wood without tearing. Wood fibers should remain intact without shattering.

3. Mechanically excavating (e.g. with trencher or backhoe) and hand pruning what is left of the roots. Work slowly and have ground crew cleanly cut roots as soon as possible after encountered.

D. The following tools are acceptable for use:
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1. Round blade shovel

2. Tree pruning handsaw designed for root cutting

3. Hand pruners

4. Loppers with 1 inch capacity reciprocating saw with wood cutting blade

5. Concrete circular saw (rock or root cutting saw, e.g. Stihl TS-400 with 12” blade, preferably carbon-tipped- start with new blade).

6. Chainsaw (for large roots over 4 inches in diameter- start with new chain).

E. Proper pruning technique shall encourage callusing of the roots. Root cutting and removal shall not exceed thirty-five (35%) of total root surface.

F. Exposed Roots

1. Temporarily cover exposed roots with wet burlap to prevent roots from drying out, maintain moist condition of burlap at all times and remove burlap and cover with earth as soon as possible (within two hours). If the air temperature is 80 degrees Fahrenheit or greater, the burlap must be inspected every hour and re-wet as necessary to maintain a constant cool moist condition. If air temperature is below 80 degrees Fahrenheit, the burlap must be inspected every 4 hours and re-wet as necessary to maintain a constant cool moist condition. Small roots can dry out and die in 10-15 minutes. Larger roots can succumb in an hour or less under unfavorable weather conditions.

G. Injured / Damaged Roots

1. Any roots damaged during grading or construction shall be exposed to sound tissue and cut cleanly with approved tools/equipment. Crushed or torn roots are more likely to allow decay to begin; sharply cut roots produce a flush of new roots helping the tree to recover from injury. If any roots over two inches (2”) in diameter are severed during any excavation, the following procedure shall be followed:
a. The roots shall be shaded by immediately covering the entire trench with plywood, or by covering the sides of the trench with burlap sheeting that is kept moist by watering twice (2x) per day.
b. When ready to backfill, each root shall be severed cleanly with a handsaw. Where practical, they should be cut back to a side root or 2” behind the ragged end. Immediately, a plastic bag shall be placed over the fresh cut, and secured with a rubber band or electrical tape. Shading should immediately be placed until backfilling occurs.
c. Plastic bags shall be removed prior to backfilling.
d. Backfill shall be clean, native material free of debris, gravel or wood chips.

H. Contractor shall pay the City the value of existing trees to remain that died or were damaged because of the contractor's failure to provide adequate protection and maintenance. In accordance with the schedule of values, using "tree caliper" method established in the most recent issue of the guide for establishing values of tree and other plants prepared by the council of tree if it is determined that the contractor has willfully or negligently damaged or destroyed the existing trees to remain, the values shall be tripled to reimburse City for inconvenience and damages.

3.5 TRENCHING / SITE WORK
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A. Demolition

1. Removal of existing pavement must be done carefully and slowly around protected trees. Jack hammering pavement to break into manageable pieces to be hand removed is preferred. SEE 3.6 MULCH for additional information.

B. Grading

1. If heavy grading equipment is used around the protected trees and roots are encountered that must be removed, grading must stop and the roots shall be cut immediately by the above methods. Tearing back roots toward the trunk to snap them or break them by continuing to operate heavy equipment is not acceptable.

2. When using heavy machinery around protected trees, the equipment shall sit on existing pavement and work backwards so as to remain on the pavement or otherwise outside the tree protection zones, or at least as far away from the trunk as possible. Machine operator shall work very slowly, removing soil in 6 inch lifts. Contractor shall have a ground crew with shovels to watch for and expose tree roots while the machines are excavating. The equipment operator should ‘feel’ for roots while excavating around protected trees and notify ground crew to cut roots per the above methods if the roots are smaller than 2”.

3. Soil Compaction: If compaction of the soil occurs, it shall be mitigated as outlined in Soil Compaction Damage, and/or Soil Improvement.

4. Grading Limitations within the Tree Protection Zone (TPZ):
a. Grade changes outside of the TPZ shall not significantly alter drainage to the tree.
b. Grade changes within the TPZ are not permitted.
c. Grade changes under specifically approved circumstances shall not allow more than six (6) inches of fill soil added or allow more than four (4) inches of existing soil to be removed from natural grade unless mitigated.

C. Trenching

1. Spoil from trench, footing, utility or other excavation shall not be placed within the tree protection zone, neither temporarily or permanently.

2. All underground utilities, drain lines or irrigation lines shall be routed outside the tree protection zone. If lines must traverse through the protection area, they shall be tunneled or bored under the tree as directed by the City/Project Arborist.

3. Open trenching in the root zone of any tree is prohibited except in cases where the trenching fall outside the drip-line of the tree involved. Exception will be allowed if, in the opinion of the Project Arborist, the impact of trenching upon the tree will be negligible. Project Arborist approval is required.

4. In the event trenches for irrigation and/or lighting are required within a tree’s canopy, they shall be installed by hand in a radial direction to the trees’ trunks. If irrigation trenches cannot be routed as such, the work may need to be performed using a pneumatic air device, such as an Air-Spade®, to avoid unnecessary root damage.

3.6 MULCHING
A. Apply 4-6” of wood chip mulch within the tree protection zone and maintain during 795
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construction. Mulch material may be chipped trees from on-site demolished trees.

Contractor shall maintain 6-12” clear around the base of the trunk. The mulch will help regenerate new fine roots in the soil just beneath the mulch. This can help to compensate for some of the root loss or root damage that trees experience.

B. If pavement is removed within the tree protection zone, the contractor shall wet the soil underneath the removed pavement to a maximum depth of 6”, and apply mulch per above.

3.7 CLEAN-UP
A. During tree and plant protection work, keep the site free of trash, pavements reasonably clean and work area in an orderly condition at the end of each day.

Remove trash and debris in containers from the site no less than once a week.

B. Immediately clean up any spilled or tracked soil, fuel, oil, trash or debris deposited by the Contractor from all surfaces within the project or on public right of ways and neighboring property.

C. Once tree protection work is complete, wash all soil from pavements and other structures. Ensure that Mulch is confined to planting beds.

D. Make all repairs to grades, ruts, and damage to the work or other work at the site.

E. Remove and dispose of all excess Mulch, Wood Chips, packaging, and other material brought to the site by the Contractor.

3.8 REMOVAL OF FENCING AND OTHER TREE AND PLANT PROTECTION A. At the end of the construction period or when requested by the City’s Representative remove all fencing, Wood Chips or Mulch, Geogrids and Filter Fabric, trunk protection and or any other Tree and Plant Protection material.

3.9 DAMAGE OR LOSS TO EXISTING PLANTS TO REMAIN
A. Any trees or plants designated to remain and which are damaged by the Contractor shall be replaced in kind by the Contractor at their own expense. Trees shall be replaced with a tree of similar species and of equal size or 6 inch caliper whichever is less. Shrubs shall be replaced with a plant of similar species and equal size or the largest size plants reasonably available whichever is less.

Where replacement plants are to be less than the size of the plant that is damaged, the City’s Representative shall approve the size and quality of the replacement plant.

B. All trees and plants shall be installed per the requirements of Specification Section Planting Work.

C. Plants that are damaged shall be considered as requiring replacement or appraisal in the event that the damage affects more than 25 % of the crown, 25% of the trunk circumference, or root protection area, or the tree is damaged in such a manner that the tree could develop into a potential hazard. Trees and shrubs to be replaced shall be removed by the Contractor at his own expense.

D. The City's Representative may engage an independent arborist to assess any tree or plant that appears to have been damaged to determine their health or condition.

E. Any tree that is determined to be dead, damaged or potentially hazardous by the City’s arborist and upon the request of the City’s Representative shall be immediately removed by the Contractor at no additional expense to the City. Tree 796
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removal shall include all cleanup of all wood parts and grinding of the stump to a depth sufficient to plant the replacement tree or plant, removal of all chips from the stump site and filling the resulting hole with topsoil.

F. Any remedial work on damaged existing plants recommended by the consulting arborist shall be completed by the Contractor at no cost to the City. Remedial work shall include but is not limited to: soil compaction remediation and vertical mulching, pruning and or cabling, insect and disease control including injections, compensatory watering, additional mulching, and could include application tree growth regulators (TGR).

G. Remedial work may extend up to two years following the completion of construction to allow for any requirements of multiple applications or the need to undertake applications at required seasons of the year.

END OF SECTION
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SECTION 02 41 13

SELECTIVE SITE DEMOLITION
PART 1 – GENERAL

1.1 SUMMARY
A. SECTION INCLUDES:

1. This work consists of the removal and disposal of abandoned utilities, pipes, sidewalks, appurtenances, fences, foundations, pavements, picnic tables and any other obstructions that are not designated or permitted to remain. It shall also include salvaging, stockpiling and loading salvable materials, sandblasting, plugging structures, and sawing and cutting to facilitate controlled breaking and removal of concrete and asphalt to a neat line.

Except in areas to be excavated, the resulting trenches, holes, and pits shall be backfilled.

2. Materials removed and not designated to be salvaged or incorporated into the WORK shall become the property of contractor.

1.2 REFERENCES
A. Section 31 20 00 Earth Moving
PART 2 – PRODUCTS

NOT APPLICABLE
PART 3 – EXECUTION

3.1 GENERAL
A. Contractor shall raze, remove, and dispose of all structures and obstructions which are identified on the Project Plans, except utilities, structures and obstructions removed under other contractual agreements or as otherwise provided for in the contract documents, and salvable material designed to remain the property of City.

B. Salvable Material

1. All salvable material designated in the contract or by the City Engineer to remain the property of City shall be removed without damage, in sections or pieces which may be readily transported, and shall be stockpiled by contractor at specified locations within the project limits.

2. Contractor shall safeguard salvable materials and shall be responsible for the expense of repairing or replacing damaged or missing material until it is incorporated into the work, or is loaded onto City’s equipment by contractor.

C. Demolish and completely remove underground utilities as shown on the plans.

Where utilities are shown to abandon in place, grout solid as directed with Controlled Low Strength Material (CLSM). CLSM shall be 1 sack cement sand slurry with a compressive strength of no less than 50 psi and no greater than 150 psi.
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D. Pavements, Sidewalks, and Curbs:

1. All concrete pavements, sidewalks, structures, etc., designated for removal, shall be disposed of offsite by contractor at contractor’s expense.

2. Sawing of concrete and asphalt shall be done to a true line, with a vertical face, unless otherwise specified.

3. The minimum depth of a saw cut shall be two (2) inches.

4. For reinforced concrete, the minimum depth shall be two (2) inches, or to the depth of the reinforcing steel, whichever occurs first.

E. Completely fill below-grade areas and voids resulting from demolition work.

Provide fill consisting of approved fill material, gravel or sand, free of trash and debris, roots or other organic matter, in accordance with the geotechnical investigation. See Section 31 20 00 – EARTH MOVING for compaction requirements.

F. If unanticipated mechanical, electrical or structural elements which conflict with intended function or design are encountered, investigate and measure both nature and extent of the conflict. Submit report to City's Representative in written, accurate detail. Pending receipt of directive from City's Representative, rearrange selective demolition schedule as necessary to continue overall job progress without delay.

3.2 DISPOSAL OF DEMOLISHED MATERIALS
A. Remove debris, rubbish, and other materials resulting from demolition operations from project site. Transport and legally dispose of materials off site on a daily basis and as dumpsters become full.

B. If hazardous materials are encountered during demolition operations, comply with applicable regulations, laws, and ordinances concerning removal, handling, and protection against exposure or environmental pollution. Notify City’s Representative immediately.

C. Burning of removed materials is not permitted.

D. A completed construction and demolition (C&D) Debris Management Plan must be submitted by the Contractor to the Building Division. All debris disposal and recycling from the construction project must be tracked throughout the duration of the project. Contractors must use Green Halo cupertino.wastetracking.com to create their Plan and to submit all construction waste generation tonnage information. A hold on issuance of the building permit will be placed until the Plan is submitted and approved. A hold will also be placed on the final inspection until all waste tonnage information for the project has been entered into Green Halo and approved by the Environmental Programs Division. For additional information, please visit www.cupertino.org/greendev

END OF SECTION
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SECTION 03 20 00

CONCRETE REINFORCEMENT
PART 1 – GENERAL

1.1 RELATED DOCUMENTS
A. Drawings and General Provisions of Contract, including Special Provisions and all Specification sections, may apply to work of this section.

1.2 SUMMARY
A. This Section Includes the following

1. Reinforcing steel bars and accessories for cast-in-place concrete.

B. Related Sections include the following:

1. Section 03 10 00 - Concrete Formwork.

2. Section 03 30 00 - Cast-in-Place Concrete.

1.3 REFERENCED STANDARDS
A. ACI 117 – Standard Specifications for Tolerances for Concrete Construction and Materials.

B. ACI 301 - Structural Concrete for Buildings.

C. ACI 315 – Details and Detailing of Concrete Reinforcing.

D. ASTM A615 - Deformed and Plain Billet Steel Bars for Concrete Reinforcement.

E. ASTM A706 – Low Alloy Steel Deformed Bars for Concrete Reinforcement.

F. AWS D1.4 - Structural Welding Code for Reinforcing Steel.

1.4 SUBMITTALS
A. Submit under the provisions of the General Conditions- Submittals.

B. Shop Drawings: Shall be completely detailed, including bending schedules and bending diagrams, and submitted for review. Shop drawings shall show placing details, size and location of reinforcing steel, and any welding to be done. Shop drawings shall clearly specify locations of bars. On elevations of beams and columns locate sleeves that conflict with typical details or reinforcing. Shop drawings shall not be copies of Construction Drawings.

C. Contract documents shall be reviewed for location for anchors, inserts, conduits, sleeves, and any other items which are required to be cast in concrete. Provisions shall be made so that reinforcing steel will not interfere with the placement of such embedded items.

D. Reinforcing steel shall not be fabricated or placed before the shop drawings have been reviewed by the City Engineer.

E. Review of shop drawings is of a general nature only, and responsibility for conformance with intent of drawings shall remain with the Contractor. Review does not imply or state that fabricator has correctly interpreted the construction drawings.
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F. Mill Test Reports: Certified mill test reports (tensile and bending strength) for each heat or melt of reinforcing steel shall be submitted before delivery of any material to the site. All sizes of reinforcing for the project shall have a test report. Where reinforcing is to be welded, mill test reports shall verify the weldability of the steel.

1.5 QUALITY ASSURANCE
A. Perform Work in accordance with ACI 301.

B. Maintain one copy of latest construction documents on site, including design drawings, approved shop drawings and permit drawings.

C. Special inspections, as required by Section 1705.3 of the California Building Code, shall be provided during construction by City representative.

D. All materials and equipment incorporated in the work shall be new unless otherwise specified. Materials and equipment not covered by detailed requirements in the Contract Documents shall be of the best commercial quality, suitable for the purpose intended, and approved by the City prior to use in the work. The Contractor shall provide proper storage facilities and exercise such measures as will ensure the preservation of the required quality and fitness of all materials and equipment. Materials or equipment not conforming to the requirements of the Contract Documents shall be rejected and immediately removed from the site of the work.

PART 2 – PRODUCTS

2.1 REINFORCEMENT
A. Reinforcing Steel:

1. ASTM A615, Grade 60, deformed bar, unless noted otherwise.

2. ASTM A706, deformed bars where reinforcement is to be welded.

3. Spiral Reinforcement: ASTM A615 Grade 60, deformed bar.

4. Shall be new, free from rust, scale, oil, and dirt.

2.2 ACCESSORIES
A. Tie Wire: Minimum 16 gage annealed type.

B. Chairs, Bolsters, Bar Supports, and Spacers: Plastic, sized and shaped for strength and support of reinforcement during concrete placement conditions.

C. Matting for vehicle and work protection shall be heavy duty matting designed for vehicle loading over tree roots, AlturnaMats as manufactured by AlturnaMats, Inc.

Franklin, PA 16323 or approved equal.

D. Submit supplier’s product data that product meets the requirements for approval.

E. Where supports bear on earth, use concrete blocks. For surfaces exposed to view, stainless steel support chairs, spacers, or bolsters shall be used.

F. The use of wood or organic supports or spacers inside the forms is not permitted.

G. Mechanical Splices: Lenton Standard Coupler (A2), capable of providing a Type 2 splice per ACI 318, as manufactured by Erico or equal with prior approval.

H. Headed Reinforcement: Lenton Terminator (D6), capable of providing the 801
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equivalent of a hooked bar development, as manufactured by Erico or equal with prior approval.

2.3 FABRICATION
A. Fabricate concrete reinforcing in accordance with ACI 301 and applicable portions of ASTM A1094 and appendices.

B. Weld reinforcement in accordance with AWS D1.4. As a minimum, use E70 electrodes.

C. Reinforcing splices not indicated on drawings shall be located at points of minimum stress and approved by the City Engineer prior to placement.

D. In case of fabrication errors do not re-bend reinforcement in a manner that will damage or weaken the material.

PART 3 – EXECUTION

3.1 PLACEMENT
A. Reinforcing steel shall be placed in accordance with the Construction Drawings, the reviewed shop drawings, and the requirements of the references. Place, support and secure reinforcement against displacement due to workmen and the placement of concrete. Do not deviate from required position.

B. Maintain concrete cover around reinforcing as follows unless noted otherwise:

Item Coverage
Formed, Exposed to Weather 2 inches
Formed, Exposed to Earth or Weather 3 inches
Concrete Formed Against Earth 3 inches
C. Obstructions: Where conduits, piping, inserts, sleeves, etc., interfere with placing of reinforcing steel, obtain acceptance from the City’s Representative for resolution before placing concrete.

D. Accommodate placement of formed openings.

E. Tying: Push in tie wire so that concrete placement will not force the wire ends to the surface of exposed concrete.

F. Splicing: Locate splices as specified in the Construction Drawings. Stagger splices in adjacent bars wherever possible.

G. Field Bending: All reinforcing shall be bent cold. Assure that minimum bend radiuses are maintained. Do not rebend reinforcement within 6 inches of previously bent areas without approval from the City’s Representative.

Reinforcing partially embedded in concrete shall not be field bent.

3.2 FIELD QUALITY CONTROL
A. Schedule inspections with special inspectors and Structural Engineer a minimum of 48 hours prior to placing concrete.

B. Provide free access to Work and cooperate with City and City’s Representative.

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SECTION 03 30 00

CAST-IN-PLACE CONCRETE
PART 1 – GENERAL

1.1 RELATED DOCUMENTS
A. Drawings and General Provisions of Contract, including Special Provisions and all Specification sections, may apply to work of this section.

1.2 SUMMARY
A. This Section includes the following:

1. Cast-in-place concrete required for this Work as indicated on the drawings and includes, but not necessarily limited to: foundations, piles and beams.

B. Related Sections include the following:

1. Section 03 20 00 - Concrete Reinforcement.

2. Section 31 63 00 – Drilled Concrete Piers.

1.3 REFERENCES
A. ACI 117 – Standard Specifications for Tolerances for Concrete Construction and Materials.

B. ACI 301 - Structural Concrete for Buildings.

C. ACI 302 - Guide for Concrete Floor and Slab Construction.

D. ACI 308 - Standard Practice for Curing Concrete.

E. ACI 309 - Guide for Consolidation of Concrete.

F. ASTM C33 - Concrete Aggregates.

G. ASTM C94 - Ready-Mixed Concrete.

H. ASTM C150 - Portland Cement.

I. ASTM C309 - Liquid Membrane-Forming Compounds.

J. ASTM C618 - Standard Specification for Coal Fly Ash and Raw or Calcined Natural Pozzolan for Use as a Mineral Admixture in Concrete.

1.4 SUBMITTALS FOR REVIEW
A. Submit under the provisions of the General Conditions- Submittals.

B. Submit to the City’s Representative, the proposed concrete mix designs stamped by a structural or civil engineer currently licensed in the State of California. The submittal should include a history of uses and test reports and product data sheets. All materials, source of materials, admixtures and their proportions. Shrinkage limits of mix design. Whether mix is appropriate for pumping and pump or hose size required to deliver concrete.

C. Submit curing method for review by the City’s Representative.

D. Submit schedule of concrete placement operations before commencing 803
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work. Show on one or more plans and/or elevations, locations of construction, contraction and expansion joints.

E. Submit coordination drawings, indicating all embedded items, penetrations, openings, and other coordination items related to the finished concrete work.

1.5 SUBMITTALS AT PROJECT CLOSEOUT
A. Accurately record actual locations of embedded items, utilities, and components which are concealed from view. Submit to the City at project closeout.