Cupertino City Council
May 2, 2023

CITY OF CUPERTINO

CITY COUNCIL
AGENDA
10300 Torre Avenue and 10350 Torre Avenue and via Teleconference Tuesday, May 2, 2023
6:00 PM
Non-Televised Closed Session (6:00) and Televised Open Session Regular Meeting (6:45)

IN-PERSON AND TELECONFERENCE / PUBLIC PARTICIPATION INFORMATION Members of the public wishing to observe the meeting may do so in one of the following ways:
1) Attend in person at Cupertino Community Hall, 10350 Torre Avenue. 2) Tune to Comcast Channel 26 and AT&T U-Verse Channel 99 on your TV. 3) The meeting will also be streamed live on and online at www.Cupertino.org/youtube and www.Cupertino.org/webcast
Members of the public wishing to comment on an item on the agenda may do so in the following ways:
1) Appear in person for Closed Session in City Hall, Conference Room C or for Regular Meeting in Cupertino Community Hall. Members of the public may provide oral public comments pertaining to the agenda prior to the beginning of Closed Session and after Roll Call.

Members of the public may provide oral public comments during the Regular Meeting as follows:

Oral public comments will be accepted during the meeting. Comments may be made during “oral communications” for matters not on the agenda, and during the public comment period for each agenda item.

Members of the audience who address the City Council must come to the lectern/microphone, and are requested to complete a Speaker Card and identify themselves.

Completion of Speaker Cards and identifying yourself is voluntary and not required to attend the meeting or provide comments.
2) E-mail comments for Closed Session or Regular Meeting by 4:00 p.m. on Tuesday, May 2 to the Council at [email protected]. These e-mail comments will also be posted to

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the City’s website before and after the meeting.

Regular Meeting Teleconferencing Instructions
To address the City Council, click on the link below to register in advance and access the meeting:

Online
Register in advance for this webinar:
https://cityofcupertino.zoom.us/webinar/register/WN_t4Ir7G2zS4eSDDR_Q4qGcg Phone
Dial: 669-900-6833 and enter Webinar ID: 956 4395 8302 (Type *9 to raise hand to speak, *6 to unmute yourself). Unregistered participants will be called on by the last four digits of their phone number.

Or an H.323/SIP room system:

H.323:
162.255.37.11 (US West)
162.255.36.11 (US East)
Meeting ID: 956 4395 8302
SIP: [email protected]
After registering, you will receive a confirmation email containing information about joining the webinar.

Please read the following instructions carefully:

1. You can directly download the teleconference software or connect to the meeting in your internet browser. If you are using your browser, make sure you are using a current and up-to-date browser: Chrome 30+, Firefox 27+, Microsoft Edge 12+, Safari 7+. Certain functionality may be disabled in older browsers, including Internet Explorer.

2. You will be asked to enter an email address and a name, followed by an email with instructions on how to connect to the meeting. Your email address will not be disclosed to the public. If you wish to make an oral public comment but do not wish to provide your name, you may enter “Cupertino Resident” or similar designation.

3. When the Mayor calls for the item on which you wish to speak, click on “raise hand,” or, if you are calling in, press *9. Speakers will be notified shortly before they are called to speak.

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4. When called, please limit your remarks to the time allotted and the specific agenda topic.

5. Members of the public that wish to share a document must email [email protected] prior to speaking. These documents will posted to the City’s website after the meeting.

ROLL CALL - 6:00 PM
10300 Torre Avenue, Conference Room C

CLOSED SESSION

1. Subject: Conference with legal counsel - existing litigation pursuant to Government Code § 54956.9(a): Harshit Shrama & Poonam Salekar v. City of Cupertino et al., Santa Clara County Superior Court Case No. 22CV392971

2. Subject: Conference with legal counsel - initiation of litigation pursuant to Government Code § 54956.9(c) (one case)
RECESS

OPEN SESSION
CALL TO ORDER - 6:45 PM
10350 Torre Avenue, Community Hall and via Teleconference

PLEDGE OF ALLEGIANCE

ROLL CALL

CLOSED SESSION REPORT

CEREMONIAL ITEMS

3. Subject: Proclamation declaring May as Affordable Housing Month Recommended Action: Present proclamation declaring May as Affordable Housing Month
A - Proclamation

POSTPONEMENTS AND ORDERS OF THE DAY

ORAL COMMUNICATIONS
This portion of the meeting is reserved for persons wishing to address the Council on any matter within the jurisdiction of the Council and not on the agenda for discussion, including informational items. The total time for Oral Communications will ordinarily be limited to one hour. Individual speakers are

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limited to three (3) minutes. As necessary, the Chair may further limit the time allowed to individual speakers, or reschedule remaining comments to the end of the meeting on a first come first heard basis, with priority given to students. In most cases, State law will prohibit the Council from discussing or making any decisions with respect to a matter not listed on the agenda. A councilmember may, however, briefly respond to statements made or questions posed by speakers. A councilmember may also ask a question for clarification, provide a reference for factual information, request staff to report back concerning a matter, or request that an item be added to a future City Council agenda in response to public comment.

CONSENT CALENDAR (Items 4-11)
Items appearing on the Consent Calendar are considered routine City business and may be approved by one motion. Typical items may include meeting minutes, awards of contracts, the ratification of accounts payable, and second readings of ordinances. Any member of the Council may request to have an item removed from the Consent Calendar based on the rules set forth in the City Council Procedures Manual. Members of the public may provide input on one or more consent calendar items when the Mayor asks for public comments on the Consent Calendar.

4. Subject: Consider approval of the April 13 City Council minutes Recommended Action: Approve the April 13 City Council minutes A - Draft Minutes

5. Subject: Fiscal Year (FY) 2023-24 recommended funding allocations for the Community Development Block Grant (CDBG) Program, the Below Market Rate (BMR) Affordable Housing Fund (AHF), and the General Fund Human Services Grant (HSG) Recommended Action: Authorize the City Manager to execute FY 2023-24 CDBG, BMR AHF, and General Fund HSG funding agreements
Staff Report
A - FY 2023-24 NOFA RFP
B - Housing Commission Resolution 17-02 (CDBG Contingency Plan) C - FY 2023-24 CDBG, BMR AHF, HSG Funding Application Summary

6. Subject: Consider approval of the second amendment to the Countywide Household Hazardous Waste (HHW) Collection Program agreement between the City of Cupertino and the County of Santa Clara (County) to augment funding up to an additional $90,705 to the Countywide HHW Program during Fiscal Year (FY) 2023/24 using earmarked funds within the Resource Recovery Fund 520.

Recommended Action: Authorize the City Manager to execute the second amendment to the Countywide HHW Collection Program agreement between the City of Cupertino and the County of Santa Clara to augment funding up to an additional $90,705 to the Countywide HHW Program during FY 2023/24 for the purpose of attaining or increasing household participation, raising the not to exceed amount of the three-year 2022-2024 agreement to $198,885.

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Staff Report
A - Agreement for Countywide AB939 Implementation Fee
B - Agreement for Countywide HHW Collection Program with 1st Amdmt C - 2nd Amendment for Countywide HHW Collection Program

7. Subject: Consider a cost-sharing agreement between the City of Santa Clara and the City of Cupertino for the Via on-demand shuttle expansion.

Recommended Action: Authorize the City Manager to enter into a cost-sharing agreement between City of Santa Clara and the City of Cupertino for the Via on-demand shuttle expansion.

Staff Report
A - Silicon Valley Hopper Cost-Share Agreement

8. Subject: Consider approving the use of funds from the Art In-Lieu Fees for the Jollyman All-Inclusive Playground (AIPG) Capital Improvement Programs (CIP) project.

Recommended Action: 1. Approve the use of appropriations of $338,146.86 from the Art In-Lieu Fee in the General Fund, for artwork within the Jollyman AIPG CIP project;

2. Adopt Resolution No. 23-050 (Attachment A) approving budget modification no. 2223-274 increasing appropriations and revenue by $338,146.86 in the Capital Improvement Program Capital Projects Fund and increasing appropriations in the General Fund to transfer out restricted funds for the Jollyman All-Inclusive Playground Project (420-99-051, PVAR 007); and

3. Authorize the City Manager to execute any necessary contract amendments for a contingency of $100,489 for a total contract amount of $490,000 on the professional design services agreement between the City of Cupertino and MIG, Inc. for the Jollyman AIPG Project (Project 2019-15).

Staff Report
A- Draft Resolution
B- Art Concept Options

9. Subject: Consider award of a construction contract for the Service Center Security Gate Project (Project No. 2023-103) for the construction of a new motorized security gate, including associated improvements.

Recommended Action: 1. Award a construction contract for the Service Center Security Gate Project and authorize the City Manager to execute a contract in the amount of $365,750 with VNH Builders;

2. Authorize the Director of Public Works to execute any necessary change orders up to a construction contingency amount of $36,575 (10%) for a total authorized contract amount of $402,325; and

3. Adopt Resolution No. 23-051 approving budget modification #2223-266 increasing appropriations in the General Fund Service Center Facilities Maintenance Fund (budget unit 100-87-829) by $249,001.

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Staff Report
A - Draft Contract
B - Draft Resolution
C - Bid Document Project Manual
D - Bid Documents Project Drawings
E - Bid Document Addendum 1

10. Subject: Consider award of a construction contract for the 2023 Concrete Reconstruction Project (Project No. 2023-104) for the reconstruction of curbs, gutters, sidewalks and Americans with Disabilities Act (ADA) ramps at various locations throughout the City of Cupertino.

Recommended Action: 1. Award a construction contract for the 2023 Concrete Reconstruction Project and authorize the City Manager to execute a contract amount of $1,378,793.40 with R&S Construction Management, Inc.; and

2. Authorize the Director of Public Works to execute any necessary change orders up to a construction contingency amount of $137,879 (10%) for a total authorized contract amount of $1,516,672.40.

Staff Report
A - Draft Contract

11. Subject: Consider approval of a Semi-Rural Designation, eliminating the requirement for sidewalks on the east side of Carmen Road, between Scenic Boulevard and Stevens Creek Boulevard, pursuant to Ordinance No. 1925.

Recommended Action: Adopt Resolution No. 23-052 designating the east side of Carmen Road, between Scenic Boulevard and Stevens Creek Boulevard, as semi-rural.

Staff Report
A - Petition Area & Proposed Semi-Rural Designation Areas B - Draft Resolution
PUBLIC HEARINGS - None
Effective January 1, 2023, Government Code Section 65103.5 (SB 1214) limits the distribution of copyrighted material associated with the review of development projects. Members of the public wishing to view plans that cannot otherwise be distributed under SB 1214 may make an appointment with the Planning Division to view them at City Hall by sending an email to [email protected]. Plans will also be made available digitally during the hearing to consider the proposal.

ACTION CALENDAR

12. Subject: Consider a Request for Proposals (RFP) for garbage and construction and demolition (C&D) debris disposition services, including solicitation of options to process garbage for recovery of organic and other recyclables.

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Recommended Action: Approve the staff recommendation regarding the forthcoming Request for Proposals for garbage and construction and demolition debris disposition services, by incorporating the solicitation of options to process garbage for recovery of organic and other recyclable materials.

Presenter: Ursula Syrova, Environmental Programs Manager Staff Report

13. Subject: Consider a report regarding the review of potential violations of the City of Cupertino Municipal Code and City policies regarding Council- and commissioner-staff relations.

Staff and Commissioner-Staff Relations (“Report”).

Recommended Action: Receive confidential Report; consider waiving attorney-client privilege to allow for the public release of the Report; and consider further responses to Report.

Presenter: Christopher Jensen, City Attorney
Staff Report
A – Grand Jury Report – "A House Divided: Cupertino City Council and City Staff” B – City of Cupertino Response to Grand Jury Report

COUNCIL REPORTS AND COMMENTS

14. Subject: Councilmember Reports
A - Council Report, Chao
B - Council Report, Fruen
C - Council Report, Mohan
D - Council Report, Wei

CITY MANAGER REPORT

ORAL COMMUNICATIONS - CONTINUED
INFORMATIONAL ITEMS - None
Information items are intended to provide background information and routine reports to Councilmembers and the public, without discussion by Council. Members of the public wishing to comment on informational items should do so during oral communications.

COUNCIL AND STAFF COMMENTS AND FUTURE AGENDA ITEMS

ADJOURNMENT
Lobbyist Registration and Reporting Requirements: Individuals who influence or attempt to influence legislative or administrative action may be required by the City of Cupertino’s lobbying ordinance (Cupertino Municipal Code Chapter 2.100) to register and report lobbying activity. Persons whose communications regarding any legislative or administrative are solely limited to appearing at or

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submitting testimony for any public meeting held by the City are not required to register as lobbyists.

For more information about the lobbying ordinance, please contact the City Clerk’s Office at 10300 Torre Avenue, Cupertino, CA 94107; telephone (408) 777-3223; email [email protected]; and website: www.cupertino.org/lobbyist.

The City of Cupertino has adopted the provisions of Code of Civil Procedure §1094.6; litigation challenging a final decision of the City Council must be brought within 90 days after a decision is announced unless a shorter time is required by State or Federal law.

Prior to seeking judicial review of any adjudicatory (quasi-judicial) decision, interested persons must file a petition for reconsideration within ten calendar days of the date the City Clerk mails notice of the City’s decision. Reconsideration petitions must comply with the requirements of Cupertino Municipal Code §2.08.096. Contact the City Clerk’s office for more information or go to http://www.cupertino.org/cityclerk for a reconsideration petition form.

In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to attend this meeting who is visually or hearing impaired or has any disability that needs special assistance should call the City Clerk's Office at 408-777-3223, at least 48 hours in advance of the meeting to arrange for assistance. In addition, upon request, in advance, by a person with a disability, meeting agendas and writings distributed for the meeting that are public records will be made available in the appropriate alternative format.

Any writings or documents provided to a majority of the Cupertino City Council after publication of the packet will be made available for public inspection in the City Clerk’s Office located at City Hall, 10300 Torre Avenue, Cupertino, California 95014, during normal business hours; and in Council packet archives linked from the agenda/minutes page on the Cupertino web site.

IMPORTANT NOTICE: Please be advised that pursuant to Cupertino Municipal Code section

2.08.100 written communications sent to the Cupertino City Council, Commissioners or City staff concerning a matter on the agenda are included as supplemental material to the agendized item. These written communications are accessible to the public through the City’s website and kept in packet archives. Do not include any personal or private information in written communications to the City that you do not wish to make public, as written communications are considered public records and will be made publicly available on the City website.

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CITY OF CUPERTINO
Agenda Item
23-12246 Agenda Date: 5/2/2023
Agenda #: 1.

Subject: Conference with legal counsel - existing litigation pursuant to Government Code § 54956.9(a): Harshit Shrama & Poonam Salekar v. City of Cupertino et al., Santa Clara County Superior Court Case No. 22CV392971 CITY OF CUPERTINO Page 1 of 1 Printed on 4/25/2023
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CITY OF CUPERTINO
Agenda Item
23-12247 Agenda Date: 5/2/2023
Agenda #: 2.

Subject: Conference with legal counsel - initiation of litigation pursuant to Government Code § 54956.9(c) (one case) CITY OF CUPERTINO Page 1 of 1 Printed on 4/25/2023
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CITY OF CUPERTINO
Agenda Item
23-12163 Agenda Date: 5/2/2023
Agenda #: 3.

Subject: Proclamation declaring May as Affordable Housing Month Present proclamation declaring May as Affordable Housing Month CITY OF CUPERTINO Page 1 of 1 Printed on 4/25/2023
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WHEREAS,

WHEREAS,

WHEREAS,

WHEREAS,

WHEREAS,

THEREFORE,

CITY OF

CUPERTINO
Affordable housing is one of the cornerstones of democracy and is a basic need and right of everyone, and the City of Cupertino wishes to heighten public awareness of fair housing and fair treatment of communities in the region; and
Many Silicon Valley families and individuals struggle to find affordable homes in one of the most expensive housing markets in the nation; and
The local affordable housing community, including organizations like Silicon Valley at Home, concentrates efforts on the production, protection, and preservation of affordable housing options; and Many organizations throughout our region should continue working collaboratively to provide safe, stable, permanent, and affordable housing to all members of our community and continue bringing the need for affordable housing to the forefront of discussion; and
The City of Cupertino joins Silicon Valley at Home in supporting affordable housing efforts and wishes to focus public attention on May as Affordable Housing Month.

I, Mayor Hung Wei, and the Cupertino City Council do hereby proclaim the month of May in the City of Cupertino as
and encourage every person and community organization to support affordable housing efforts and to collaborate in finding viable, creative solutions to increase housing affordability for everyone.

IN WITNESS THEREOF, I have hereunto set my hand and caused the seal of the City of Cupertino to be affixed this Tuesday, May Second, Two Thousand and Twenty Three.

Mayor
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CITY OF CUPERTINO
Agenda Item
22-11703 Agenda Date: 5/2/2023
Agenda #: 4.

Subject: Consider approval of the April 13 City Council minutes Approve the April 13 City Council minutes
CITY OF CUPERTINO Page 1 of 1 Printed on 4/26/2023
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DRAFT MINUTES

CUPERTINO CITY COUNCIL
Thursday, April 13, 2023

SPECIAL MEETING
At 4:02 p.m. Mayor Wei called the Special City Council Meeting to order in open session and led the Pledge of Allegiance in the Cupertino Community Hall Council Chamber, 10350 Torre Avenue and via teleconference.

ROLL CALL

Present: Mayor Hung Wei, Vice Mayor Sheila Mohan, and Councilmembers Liang Chao, J.R.

Fruen and Kitty Moore. Absent: None.

CLOSED SESSION REPORT - None
CEREMONIAL ITEMS - None
POSTPONEMENTS AND ORDERS OF THE DAY – None

ORAL COMMUNICATIONS
Jennifer Griffin supported preserving the Stocklmeir property, including the history of the fruit orchard.

Cathy Helgerson was concerned about construction progress at the former Vallco site and issues of homelessness and supported youth training programs for the government job sector.

Peggy Griffin was concerned about a proposed Civic Center solar panel installation requiring the removal of trees and supported an analysis prior to removal.

Lisa Warren was concerned about Councilmember recusal from the Apple development item due to conflicts of interest and opposed the early meeting start time.

CONSENT CALENDAR (Items 1-3)
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Mayor Wei opened the public comment period for items on the Consent Calendar and, seeing no one, closed the public comment period.

Mohan moved and Fruen seconded to approve the items on the Consent Calendar, except for Item 3 which was pulled for discussion. Ayes: Wei, Mohan, Chao, Fruen, and Moore. Noes:

None. Abstain: None. Absent: None.

Item 3 was placed after the Action Calendar for consideration.

1. Subject: Consider approval of the April 4 City Council minutes Recommended Action: Approve the April 4 City Council minutes

2. Subject: Consider ratifying Accounts Payable for the periods ending February 10, 2023; February 17, 2023; February 24, 2023; and March 3, 2023 Recommended Action: A. Adopt Resolution No. 23-043 ratifying Accounts Payable for the Period ending February 10, 2023;
B. Adopt Resolution No. 23-044 ratifying Accounts Payable for the Period ending February 17, 2023;
C. Adopt Resolution No. 23-045 ratifying Accounts Payable for the Period ending February 24, 2023; and
D. Adopt Resolution No. 23-046 ratifying Accounts Payable for the Period ending March 3, 2023

PUBLIC HEARINGS

4. Subject: Consider the proposed development of a 282,320-square-foot office building with a detached 213,080-square-foot parking structure and removal and replacement of 113 trees subject to a Development Permit, Architectural and Site Approval, and Tree Removal Permit, and exemption from the California Environmental Quality Act. (Application No(s): DP-2021-001, ASA-2021-003, TR-2021-020; Applicant(s): Apple, Inc.; Location: 19191 Vallco Parkway; APN #316-20-117)
Recommended Action: Recommends that the City Council adopt the Resolutions (Attachments A-C) to:

1. Find the project exempt from CEQA pursuant to Guidelines section 15183;

2. Adopt Resolution No. 23-047 approving the Development Permit (DP-2021-001) including the adoption of alternative parking standards pursuant to Municipal Code section 19.124.060(C);

3. Adopt Resolution No. 23-048 approving the Architectural and Site Approval Permit (ASA-2021-003); and

4. Adopt Resolution No. 23-049 approving the Tree Removal Permit (TR-2021-020). 15 CC 05-02-2023
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Presenter: Gian Martire, Senior Planner
Written communications for this item included staff and applicant presentations, a supplemental report of Phase I ESA-Phase II Report, a supplemental report and desk item with staff responses to councilmember questions, and emails to Council.

Senior Planner Gian Martire gave a presentation.

Gary Chao, Head of Development Services for Apple Real Estate & Development, gave a presentation.

Councilmembers disclosed any ex parte communications prior to deliberation in this matter.

Councilmembers asked questions and made comments.

Placeworks consultants Mike Watson, Senior Geologist, and Terri McCracken, Associate Principal, answered questions.

Mayor Wei opened the public hearing and the following people spoke.

Jennifer Griffin supported the project approval.

Peggy Griffin supported the project with additional requirements, including a covenant to list those commercial space conditions. (Shared written comments).

Jennifer Van Every, representing Shashi Hospitality Group/Aloft Hotel, supported the project approval.

Sean Panchal, representing First Muganson Holdings Cupertino, supported the development approval.

Louise Saadati supported the project approval and City staff and involved residents.

Bicycle Pedestrian Commissioner Jennifer Shearin (representing self) supported the development approval, including the bike shop.

Claudio Bono supported approval of the project.

Jean Bedord supported approval of the project.

Rhoda Fry supported the project approval and was concerned about housing, retail, 16 CC 05-02-2023
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density, parking, a head count tax, and bird safety.

Cathy Helgerson was concerned about the facility next door on Bandley Drive emitting pollution.

Housing Commissioner Connie Cunningham (representing self) supporting the project and addressing the bird safety and dark sky impacts of the Alternative Plan.

Mayor Wei closed the public hearing.

Wei moved and Chao seconded the recommended action.

Fruen added a friendly amendment to include Moore’s changes, based upon errors detected in the packet. Wei and Chao accepted the friendly amendment.

Final motion:

Wei moved and Chao seconded, as amended, to:

1. Find the project exempt from CEQA pursuant to Guidelines section 15183;

2. Adopt Resolution No. 23-047 approving the Development Permit (DP-2021-001) including the adoption of alternative parking standards pursuant to Municipal Code section 19.124.060(C), as amended:
 Page 3, Item 2. The granting of the exception will not be injurious to property or improvements in the area nor be detrimental to the public safety, health and welfare.
…VP1 Apple Office Project CEQA Guidelines Section 15183 Checklist which concluded that the project would not create any significant impacts beyond what was analyzed in the City’s General Plan EIR.
 Page 7, Item 13. PRE-CONSTRUCTION MEETING AND CONSTRUCTION

MANAGEMENT PLAN
a. Compliance with CEQA mitigation measures

3. Adopt Resolution No. 23-048 approving the Architectural and Site Approval Permit (ASA-2021-003); and

4. Adopt Resolution No. 23-049 approving the Tree Removal Permit (TR-2021-020).

The amended motion carried unanimously.

Council recessed from 5:35 to 5:43 p.m.

ACTION CALENDAR

5. Subject: Consider submitting a letter in support of, or otherwise regarding, Assembly Constitutional Amendment (“ACA”) 5, expressing the intent of the Legislature to 17 CC 05-02-2023
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amend the California Constitution to protect marriage equality Recommended Action: Consider submitting a letter in support of ACA 5 Presenter: Christopher Jensen, City Attorney
City Attorney Christopher Jensen reviewed the staff report.

Councilmembers asked questions and made comments.

Mayor Wei opened the public comment period and the following people spoke.

Bicycle Pedestrian Commissioner Jennifer Shearin (representing self) supported submitting a letter in support of ACA 5.

Cathy Helgerson opposed submitting a letter in support of ACA 5.

Geoff Paulsen supported submitting a letter in support of ACA 5.

Louise Saadati supported submitting a letter in support of ACA 5.

Housing Commissioner Connie Cunningham (representing self) supported submitting a letter in support of ACA 5.

Liana Crabtree supported submitting a letter in support of ACA 5.

Mayor Wei closed the public comment period.

Fruen moved and Chao seconded to submit a letter in support of Assembly Constitutional Amendment (“ACA”) 5, expressing the intent of the Legislature to amend the California Constitution to protect marriage equality. The motion carried unanimously.

6. Subject: Consider the FY 2023-24 10-Year Budget Forecast Informational Update presentation
Recommended Action: Receive the FY 2023-24 10-Year Budget Forecast Informational Update presentation
Presenters: Kristina Alfaro, Director of Administrative Services and Thomas Leung, Budget Manager
Written communications for this item included a supplemental report with staff responses to councilmember questions, and emails to Council. 18 CC 05-02-2023
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Administrative Services Director Kristina Alfaro and Budget Manager Thomas Leung gave a presentation.

Councilmembers asked questions and made comments.

Mayor Wei opened the public comment period and the following people spoke.

Geoff Paulsen opposed selling Blackberry Farm Golf Course to generate revenue.

Cathy Helgerson opposed the budget update options and paying back sales tax revenues and supported other solutions. (Submitted written comments).

Peggy Griffin opposed selling assets and supported spending reductions and alternate savings ideas. (Submitted written comments).

Louise Saadati supported collaborative solutions, strategic reductions, revenue increases, and waiting for more details to unfold before making cuts.

Bicycle Pedestrian Commissioner Jennifer Shearin (representing self) asked why the previous Council did not discuss the matter and supported strategic reductions.

Jean Bedord was concerned about the budget balancing options presented and supported a strategic emphasis in other areas.

Rhoda Fry opposed selling assets and was concerned about clear messaging and why the matter wasn’t brought forward sooner by staff. (Submitted written comments).

Housing Commissioner Govind Tatachari (representing self) opposed selling assets and supported exploring payback negotiation strategies and spending management.

San R supported spending reductions and additional details on staffing, revenue levels, and City projects and opposed selling assets.

Lisa Warren opposed selling assets and receiving support from outside interests and supported spending reductions.

Mayor Wei closed the public comment period.

Council received the FY 2023-24 10-Year Budget Forecast Informational Update presentation.
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Council recessed from 7:52 p.m. to 8:30 p.m.

ITEMS REMOVED FROM THE CONSENT CALENDAR
The following item was pulled from the Consent Calendar and placed after the Action Calendar for discussion.

3. Subject: Consider authorizing City funding of up to $2,200 for the visit to Sister City Hsinchu, Taiwan.

Recommended Action: Authorize City funding of up to $2,200 for the visit to Sister City Hsinchu, Taiwan.

Written communications for this item included a supplemental report and desk item with staff responses to councilmember questions, and emails to Council.

Councilmembers asked questions and made comments.

City Manager Pamela Wu answered questions.

Mayor Wei opened the public comment period and the following people spoke.

Peggy Griffin opposed authorizing City funding.

Jean Bedord supported authorizing City funding.

Louis Saadati supported authorizing City funding.

Rhoda Fry was concerned about the short notice to authorize City funding.

San R opposed authorizing City funding.

Liana Crabtree was concerned about the role of the City Manager on the visit.

Lisa Warren opposed authorizing City funding.

Housing Commissioner Tessa Parish (representing self) was concerned about public perception and setting a precedent by authorizing City funding.

Mayor Wei closed the public comment period.

Wei moved and Mohan seconded to authorize City funding of up to $2,200 for the visit 20 CC 05-02-2023
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to Sister City Hsinchu, Taiwan. The motion carried with Chao and Moore voting no.

COUNCIL REPORTS AND COMMENTS

7. Subject: Councilmember Reports
Written communications for this item included a Council Report from Councilmember Chao.

Councilmembers reported on their various committees and activities, as provided in the published agenda and written communications.

CITY MANAGER REPORT
City Manager Pamela Wu shared a video montage showing photos of the recent Big Bunny 5K Race and Kids Fun Run event.

ORAL COMMUNICATIONS - CONTINUED
Mayor Wei reopened Oral Communications.

Stanley Young, representing IFPTE Local 21 and speaking on behalf of Local 21 members who are CEA, supported investing in City employees and Council direction that includes fair cost of living increases for staff.

Mayor Wei closed Oral Communications.

INFORMATIONAL ITEMS

8. Subject: Consider the Monthly Treasurer's Report for February 2023 Recommended Action: Receive the Monthly Treasurer's Report for February 2023 The informational report was provided as part of the published agenda.

9. Subject: Consider the Monthly Treasurer's Investment Report for February 2023 Recommended Action: Receive the Monthly Treasurer's Investment Report for February 2023
The informational report was provided as part of the published agenda.

COUNCIL AND STAFF COMMENTS AND FUTURE AGENDA ITEMS
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Council did not hear this item.

Council recessed from 9:32 p.m. to 9:40 p.m.

At 9:40 p.m. Mayor Wei reconvened the Special City Council Meeting in closed session in City Hall Conference Room C, 10300 Torre Avenue.

CLOSED SESSION

10. Subject: Conference with legal counsel - initiation of litigation pursuant to Government Code § 54956.9(c) (two cases)
Council met with legal counsel regarding initiation of litigation (two cases).

11. Subject: Conference with Labor Negotiators pursuant to Government Code § 54957.6 (Kristina Alfaro and Christopher Boucher)
Council met with Labor Negotiators.

OPEN SESSION REPORT REGARDING CLOSED SESSION
City Attorney Chris Jensen conducted the open session report regarding the Closed Session.

City Attorney Jensen reported that Council authorized the initiation of an administrative appeal of the anticipated CDTFA’s decision to reallocate sales tax revenue to jurisdictions outside of Cupertino. There was no other reportable action.

ADJOURNMENT
At 11:13 p.m., Mayor Wei adjourned the Special City Council Meeting.

Minutes prepared by:
_________________________
Kirsten Squarcia, City Clerk
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CITY OF CUPERTINO
Agenda Item
23-11952 Agenda Date: 5/2/2023
Agenda #: 5.

Subject: Fiscal Year (FY) 2023-24 recommended funding allocations for the Community Development Block Grant (CDBG) Program, the Below Market Rate (BMR) Affordable Housing Fund (AHF), and the General Fund Human Services Grant (HSG)
Authorize the City Manager to execute FY 2023-24 CDBG, BMR AHF, and General Fund HSG funding agreements
CITY OF CUPERTINO Page 1 of 1 Printed on 4/25/2023
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CITY COUNCIL STAFF REPORT
Meeting: May 02, 2023
Subject
Fiscal Year (FY) 2023-24 recommended funding allocations for the Community Development Block Grant (CDBG) Program, the Below Market Rate (BMR) Affordable Housing Fund (AHF), and the General Fund Human Services Grant (HSG).

Recommended Action
Authorize the City Manager to execute FY 2023-24 CDBG, BMR AHF, and General Fund HSG funding agreements.

Reasons for Recommendation
Background
On November 07, 2022, the City of Cupertino issued an annual Notice of Funding Availability (NOFA) and a Request for Proposals (RFP) (Attachment A), inviting applicants to apply for eligible public services (two-year funding cycle) and capital housing projects (one-year funding cycle). The funding would be part of the City’s Fiscal Year 23-24 adopted budget. The NOFA/RFP submittal deadline was February 07, 2023.

The City received a total of ten applications during the submittal period.

At its March 9, 2023 meeting, the Housing Commission reviewed the CDBG, BMR AHF, and General Fund HSG applications and made funding recommendations to the City Council (Attachment C). While the CDBG program is administered through the U.S.

Department of Housing and Urban Development (HUD), the City Council has the final approval for the BMR AHF and HSG funding requests. CDBG funding amounts will be reduced or increased proportionately for FY 23-24 based on the final HUD allocations.

Given that the final HUD allocation may vary, the Housing Commission adopted Resolution 17-02 (CDBG Contingency Plan, Attachment B), on May 11, 2017 to address whether the City receives more or less CDBG funding from HUD. Public service funding cycles have been determined by the timeframe in the City’s 2020-2025 Consolidated Plan.

The first cycle covered Fiscal Years 20-21, 21-22, and 22-23, and this current cycle will cover Fiscal Years 23-24 and 24-25.
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2 Housing Commission Recommendation
The Housing Commission held a public hearing on March 9, 2023, to finalize the initial ratings and rankings of the FY 2032-43 CDBG, BMR AHF, and General Fund HSG funding allocations. The Commission recommended approval of the proposed FY 2023- 24 funding allocations.

CDBG Funding
HUD annually allocates CDBG funding to local jurisdictions for a range of community development activities. Cupertino is one of nine entitlement jurisdictions within Santa Clara County. In order to be classified as an entitlement jurisdiction and receive funds directly from HUD, cities must have a population of 50,000 or more. Entitlement grants are allocated on a formula basis and based on several objective measures of community needs, including the extent of poverty, population, housing overcrowding, age of housing, and the extent of population growth lag in relation to other metropolitan areas.

The CDBG Contingency Plan as described in Resolution 17-02 (attachment B) identifies allocation options in the event that the funding either increases or decreases.

On February 27, 2023, HUD released a notice that the City will receive $358,910 in FY 23- 24 CDBG entitlement funding. Additionally, program income in the amount of $7,944 will be received and allocated from existing CDBG loan payoffs. There is also $222,032.28 in prior year unexpended CDBG funds. HUD regulations establish the maximum percentages that may be allocated to CDBG administration and public services. Of the total estimated funding, a maximum of 20% may be used for administrative costs to cover salary and benefits of staff who operate the CDBG program, a maximum of 15% may be used for public services, and a minimum of 65% must be used for capital housing projects.

As noted earlier, CDBG funding amounts will be reduced or increased proportionately for FY 23-24 based on the final HUD allocations and City Council’s approval. The final determination will be available May 15, 2023.

FY 23-24 CDBG Budget (est.)
Entitlement Amount (EN) $358,910.00
Program Income (FY 23-24) $7,944.00
Unexpended Funds (FY 21-22) $35,439.62
Unexpended Funds (FY 22-23) $186,592.66
Sub-Total $588,886.28
Program Administration (20% EN) $73,370.80
Public Service (15% EN) $55,028.10
Capital/Housing Projects (65% EN + Unexpended Funds) $460,487.38 Total $588,886.28
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3 HUD regulations require that eligible activities selected for funding must benefit very low and low-income households, eliminate a blighted area, or address an urgent (emergency) community need, and must also meet a HUD national objective. In addition, only certain types of eligible activities qualify under the CDBG regulations. Examples of eligible activities are:
• Public improvements
• Public service activities
• Affordable housing developments
• Property acquisition for affordable housing
• Rehabilitation of affordable units
2023-24 CDBG Program Administration Funds
An estimated total of $73,370.80 will be used for CDBG program administration. The City will use these funds for administrative costs to cover partial salary and benefits of the City’s Housing Division staff who operate the CDBG program. 2023-24 CDBG Capital Housing Project Funds (One-Year Funding Cycle) An estimated total of $460,487.38 is available to be used for eligible CDBG capital housing projects. This consists of FY 23-24 funding and unexpended funding from prior years.

City staff conducted extensive outreach and the NOFA/RFP was sent to over 250 contacts in the affordable housing community. In addition, staff provided technical assistance to six affordable housing developers and non-profits during this time, resulting in the receipt of one application in this category, totaling $92,536.00. The City did not receive applications for the excess $367,951.38 in funds and is, therefore, still actively seeking eligible opportunities to expend the excess funding. When an appropriate activity is identified, the City will complete a Substantial Amendment to the FY 22-23 and FY 23-24 Annual Action Plans to allocate the funding. Funding recommendations are listed in the table below.
1 CDBG Capital Housing Projects
FY 23-24 Application Summary Funds
Available
Funding
Requests
Funding
Recommendations
FY 22-23
Funding
Allocations
a
Rebuilding Together Silicon
Valley- Homeowner Repair and
Rehabilitation Program
$92,536.00 $92,536.00 $88,966.00
Sub-Total $460,487.38 $92,536.00 $92,536.00
$88,966.00
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4 2023-24 CDBG Public Service Funds (Two-Year Funding Cycle) An estimated total of $55,028.10 is available to be used for eligible CDBG public service activities. These activities include youth, senior and homeless services as well as other services that benefit low- and moderate-income persons and households. The City received three applications in this category, totaling $121,536.00, one of which was not eligible, for the reasons stated, below. The two eligible applications totaled $63,536, resulting in a shortfall of $8,507.90. Funding was decreased proportionally based on the City’s Contingency Plan. Funding recommendations are listed in the table below.

The God’s Promise – Community Hub application was deemed ineligible for the following reasons: 1) the application doesn’t leverage any other funding sources; 2) the proposal doesn’t serve at least 51% low-moderate income (LMI) persons; 3) the project description and milestones were not clearly defined; 4) inadequate organizational capacity and lack of past performance measures; 5) the majority of the project budget goes to administrative costs rather than direct service costs; and 6) the proposal doesn’t fall within an eligible CDBG category.

City staff will make themselves available to God’s Promise to provide technical assistance on future applications. The applications for Live Oak Adult Day Services and West Valley Community Service’s CARE program are qualified for funding because they meet the CDBG eligibility criteria that’s established by HUD, and they scored well on the evaluation criteria that the Housing Commission uses to assess the applications. 2 CDBG Public Services
FY 23-24 Application Summary Funds
Available
Funding
Requests
Funding
Recommendations
FY 22-23
Funding
Allocations
a Live Oak Adult Day Services $22,000.00 $19,054.05 $21,405.76 b
West Valley Community Services
(WVCS) – Community Access to
Resources and Education
Program (CARE)
$41,536.00 $35,974.05 $38,054.69
c
God’s Promise – Community
Hub $58,000.00 Not eligible N/A
Sub-Total $55,028.10 $121,536.00 $55,028.10 $59,460.45
2023-24 BMR AHF Public Services (Two-Year Funding Cycle) The BMR AHF receives its revenue from the payment of housing mitigation fees from both non-residential (commercial, retail, hotel, research and development (R&D) and industrial) and residential development projects. Formal agreements and monitoring are 27 CC 05-02-2023
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5 required for this program, but the requirements are less stringent than federal funding.

A total of $50,000 is available to be used for eligible BMR AHF public services. The City received one application in this category totaling $50,000.00. Funding recommendations are listed in the table below.
3 BMR AHF Public Services
FY 23-24 Application Summary Funds
Available
Funding
Requests
Funding
Recommendations
FY 22-23
Funding
Allocations
a
Project Sentinel – Fair Housing
Activities $50,000.00 $50,000.00 $50,000.00
Sub-Total $50,000.00 $50,000.00 $50,000.00 $50,000.00
2023-24 BMR AHF Capital Housing Project Funds (One-Year Funding Cycle) The City estimates up to $4,900,000.00 will be available to fund eligible BMR AHF capital housing projects for FY 23-24 after accounting for administrative and other expenses.

Over the course of the year, staff met with multiple developers and non-profits to provide technical assistance in order to generate affordable housing. The City did not receive any applications for FY 23-24 BMR AHF Capital Housing Projects due to barriers such as the high cost of land and lack of adequate funding available to leverage the development of affordable housing. However, staff will continue to provide outreach and technical assistance to interested affordable housing developers and non-profits throughout the year.
2023-24 General Fund HSG Public Services (Two-Year Funding Cycle) The General Fund HSG program is funded by the City’s General Fund. Formal agreements and monitoring are required for this program, but the requirements are less stringent than the requirements for federal funding. A total of $125,000 is available to be used for eligible General Fund HSG public service activities. Eligible public service activities are similar to those under the CDBG program and include services that benefit seniors, homeless persons and other low- and moderate-income persons and households.

The City received five applications in this category totaling $251,500, one of which was not eligible. The four eligible applications totaled $126,500, resulting in a slight shortfall of $1,500. Funding was decreased proportionally based on the City’s Contingency Plan.

Funding recommendations are listed in the table below.

As with the CDBG Public Service funds, The God’s Promise – Homeless Services application was deemed ineligible for the following reasons: 1) the application doesn’t leverage any other funding sources; 2) the project description and milestones are not clearly defined; 3) inadequate organizational capacity and lack of past performance measures; and 4) the majority of the project budget goes to administrative costs rather than direct service costs.
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6 4 General Fund HSG Public Services
FY 23-24 Application Summary Funds
Available
Funding
Requests
Funding
Recommendation
s
FY 22-23
Funding
Allocation
s
a
Catholic Charities of Santa Clara
County – Long Term Care
Ombudsman Program
$10,000.00 $10,000 $10,000.00
b
Maitri – MTH-Direct Client
Services $25,000.00 $24,678.11 $25,000.00
c
Senior Adults Legal Assistance
(SALA) – Legal Assistance to
Cupertino Elders
$16,500.00 $16,287.55 $15,000.00
d
West Valley Community Services
– Haven to Home $75,000.00 $74,034.34
$65,780.00
e
God’s Promise – Homeless
Services $125,000.00 Not eligible N/A
Sub-Total $125,000.00 $251,500.00 $125,000.00 $115,780.00 Sustainability Impact
Authorization of the housing funding agreements will not result in a sustainability impact.

Fiscal Impact
CDBG programs and projects are funded by HUD grant funds. BMR AHF public services and projects are funded by housing mitigation fees collected from residential and nonresidential development projects. General Fund HSG activities are funded through the City’s General Fund. Budget allocations for approved funding allocations will be included for City Council’s approval as part of the proposed and final budget.

California Environmental Quality Act
Authorization of the housing funding agreements is not a project subject to the California Environmental Quality Act (CEQA).

Prepared by: Alec Vybiral, Assistant Housing Planner
Reviewed by: Kerri Heusler, Housing Manager
Luke Connolly, Interim Assistant Director of
Community Development
Benjamin Fu, Director of Community Development
Approved for Submission by: Matt Morley, Assistant City Manager Pamela Wu, City Manager
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7 Attachments:

A - FY 2023-24 NOFA/RFP
B - Housing Commission Resolution 17-02 (CDBG Contingency Plan) C - FY 2023-24 CDBG, BMR AHF, and HSG Funding Application Summary 30 CC 05-02-2023
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City of Cupertino
Notice of Funding Availability (NOFA)
and Request for Proposals (RFP)
Issued: November 07, 2022
Deadline: February 07, 2023
The City of Cupertino has issued the fiscal year (FY) 2023/24 NOFA and RFP. The City is requesting proposals for eligible capital housing projects and public service programs. The City may award and appropriate funds to one or more eligible projects in each funding category. Funds must be used to serve lowand/or moderate-income households located within the City of Cupertino jurisdiction limits.

The following funding sources are on a one-year grant funding cycle (FY 23/24):

1. Below Market Rate (BMR) Affordable Housing Fund (AHF) Capital Housing Projects (up to $4,900,000)

2. Community Development Block Grant (CDBG) Capital Housing Projects (approx. $364,000) The following funding sources are on a two-year grant funding cycle (FY 23/24 & 24/25):

1. BMR AHF Public Services (up to $50,000)

2. CDBG Public Services (approx. $58,000)

3. General Fund Human Services Grant (HSG) Program (up to $125,000) The estimated CDBG dollar amounts may change based upon the final federal budget approved by Congress.

BMR AHF and General Fund HSG allocations are subject to City Council approval and may change as a result.

CAPITAL HOUSING PROJECT FUNDS:
 Funding Source #1- BMR AHF Capital Housing Projects (FY 23/24):

The City estimates up to $4,900,000 will be available to fund eligible BMR AHF capital housing projects on a competitive basis for FY 23/24. BMR AHF funds must be used for eligible housing projects that will serve lowand/or moderate-income households located within the City of Cupertino jurisdiction limits.

Project Requirements:

BMR AHF capital housing project funds will not be granted or issued as forgivable loans. The City invites eligible non-profit and for-profit Development Entities (DEs) to submit proposals for eligible funding activities, which include, but are not limited to:
 Land acquisition
 New construction
 Acquisition and/or rehabilitation of buildings for permanent affordability  Substantial rehabilitation
Project Affordability Requirements:

BMR AHF affordable rental and/or ownership housing proposals must meet the City’s BMR requirements and offer 99 years of affordability. An affordable regulatory agreement will be recorded against the property to ensure affordability.

Eligible Development Entities (DEs):

Eligible DEs include non-profit and for-profit organizations licensed to conduct business in the State of California.

Attachment A - FY 2023-24 NOFA/RFP
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 DEs must demonstrate credit worthiness, financial capacity, relevant experience to undertake acquisition, rehabilitation, operation of rental housing, or redevelopment of new affordable housing.  DEs must have no negative financial and project management history within the last five years (i.e., DEs has not been in monetary default on a loan and has been current on all financial obligations and compliance documentation).

Loan Terms and Requirements:

Rental Ownership
Loan Type: Acquisition, predevelopment/construction
converting to permanent, rehabilitation
Acquisition, rehabilitation and/or
construction
Interest Rate: 3.0% simple interest 3.0% simple interest Loan Term: 30 yrs. 30 yrs.

Affordability
Term:
99 yrs. 99 yrs.

Security: Deed of Trust, Promissory Note and other
regulatory agreements recorded against the
property as required by the City
Deed of Trust, Promissory Note, and
other regulatory agreements recorded
against the property as required by the
City
Security
Position:

Will consider subordinating to a construction or
permanent lender with City approval
Will consider subordinating to a
construction or permanent lender with
City approval
Repayment
Terms:

Interest only. All outstanding interest and
principal will be due in full and payable on or by
the maturity date. Required 50/50 split of the
residual receipts.

Interest only. All outstanding interest and
principal will be due in full and payable on
or by the maturity date. Required 50/50
split of the residual receipts.

Timeframe: It is expected that projects must proceed
expeditiously to construction
It is expected that projects must proceed
expeditiously to construction
Financial ProForma: Submit development financial pro-forma to be reviewed by City. Subject to review by qualified
third-party consultant/organization to determine
reasonableness
Submit development financial pro-forma
to be reviewed by City. Subject to review
by qualified third-party
consultant/organization to determine
reasonableness
Environmental
Conditions:

All environmental conditions (EX: CEQA) that
are applicable to an eligible project must be
satisfied
All environmental conditions (EX: CEQA)
that are applicable to an eligible project
must be satisfied
Project
Conditions:

Project may be subject to Planning
Commission and/or City Council approval prior
to Deed of Trust, Promissory Note and other
recorded regulatory agreements being
executed and disbursement of funding being
approved
Project may be subject to Planning
Commission and/or City Council approval
prior to Deed of Trust, Promissory Note
and other recorded regulatory
agreements being executed and
disbursement of funding being approved
Underwriting Criteria:

Proposals and DE’s will be underwritten in accordance with City policies which includes, but not limited to, compliance with the General Plan, BMR Housing Mitigation Program Procedural Manual (Housing Mitigation Manual), and Policy and Procedures Manual for Administering Deed Restricted Affordable Housing Units (BMR Manual).
 Funding Source #2: CDBG Capital Housing Projects (FY 23/24):

The City estimates allocating approximately $364,000 in funding for eligible CDBG capital housing projects on a competitive basis for FY 23/24. CDBG capital housing project funds must be used for projects that will serve low-income households located within the City of Cupertino jurisdiction limits. CDBG capital housing projects 32 CC 05-02-2023
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are subject to HUD Section 3 requirements. The CDBG program is directed toward expanding and maintaining the affordable housing supply; promoting housing opportunities and choices; maintaining and improving community facilities; increasing economic opportunities, accessibility, energy efficiency and sustainability; and providing supportive services specifically for persons of very low and/or low-income. Targeted groups might include persons who are homeless, seniors, persons with disabilities, and other special needs groups.

The City estimates receiving an approximate total of $212,000 in CDBG program entitlement funds from the United States Department of Housing and Urban Development (HUD) for FY 23/24. Approximately $226,000 in unexpended CDBG funds from FY 21/22 FY 22/23 will be added to the eligible CDBG capital housing project category. CDBG funding is allocated on a competitive basis. A list of eligible CDBG capital housing project activities is available on the HUD website: https://www.hudexchange.info/cdbg-entitlement/cdbg-entitlementprogram-eligibility-requirements/.

Santa Clara County Measure A- Affordable Housing Bond
The City’s NOFA/RFP is issued in conjunction with the County’s NOFA for the Measure A- Affordable Housing Bond. Measure A funding is available on a rolling basis for development capital funding, project-based vouchers, and acquisition funding. Information and applications are available on the County's Website.

PUBLIC SERVICE FUNDS:
(Note: Two-year funding cycle for FY 23/24 & FY 24/25)
The City will award all Public Service funds through this NOFA/RFP on a two-year cycle to line up with the 2020-2025 CDBG Consolidated Plan.
 Funding Source #3- BMR AHF Public Services (FY 23/24 & 24/25):

The City estimates allocating up to $50,000 in funding annually for eligible BMR AHF public service programs for the two-year cycle. BMR AHF funds will be awarded on a competitive basis and must be used for eligible public service programs that will serve low- and/or moderate-income households located within the City of Cupertino jurisdiction limits. Eligible BMR AHF programs may include, but are not limited to, tenant/landlord dispute resolution, fair housing programs, and other programs serving low- and/or moderate-income households.
 Funding Source #4- CDBG Public Services (FY 23/24 & 24/25):

The City estimates allocating up to $58,000 in funding annually for eligible CDBG public service programs for the two-year cycle. CDBG public service funds will be awarded on a competitive basis and must be used to serve low-income households within the City of Cupertino jurisdiction limits.  Funding Source #5- General Fund HSG Program (FY 23/24 & 24/25):

The City estimates allocating up to $125,000 in funding annually for eligible HSG programs for the two-year cycle. HSG funds will be awarded on a competitive basis and must be used to serve low- and/or moderateincome households within the City of Cupertino jurisdiction limits. Eligible HSG programs may include, but are not limited to, senior services, homeless services, and other services that serve low- and/or moderate-income households.

RFP Review Process:

Upon receipt of proposals, staff will conduct an initial review to determine program and/or project eligibility and completeness. The City reserves the right to request additional information from an applicant. After the RFP deadline, all eligible and complete applications will be forwarded to the City’s five-member Housing Commission for initial rating and ranking. A Housing Commission public hearing will be held in Spring 2023 and funding recommendations will be forwarded to the City Council for final approval. A City Council public hearing will be held in Spring 2023 to determine the final funding recommendations.

Award Notification:

In late Spring 2023, organizations will be notified of City Council final funding recommendations through this FY 23/24 NOFA/RFP.
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Disclaimer:

This RFP does not commit the City to award any contract or developer agreement, execute any grant or loan documents, pay and pre-award expenses, or pay any costs incurred in the preparation of a proposal. The City reserves the right to: 1) accept or reject any or all proposals received; 2) waive a non-substantive deficiency or irregularity; 3) negotiate with any qualified applicant; 4) execute grant or loan documents in what it believes to be in the best interest of the City; 5) cancel this request, in part or its entirety, if it is deemed to be in the best interest of the City; 6) reject the proposal of any applicant who has previously failed to perform properly; 7) reject the proposal of any applicant who has failed to complete a contract within the specified timeframe; 8) reject the proposal of any applicant that is not in a position to fulfill a resulting contractual obligation; or 9) recommend partial funding of a proposal.

Evaluation Criteria:

Proposals will be reviewed and scored relative to the below program and project scoring summary. The maximum possible score is 100.

Scoring Summary Points

1. Organization Experience and Capacity 50

2. Program/Project Readiness 30

3. Program/Project Leveraged Funds 20
Maximum Possible Score 100
RFP Application Information & Deadlines:

The RFP application period will open at 8:00am on Monday, November 07, 2022, and will end at 5:00pm on Tuesday, February 07, 2023. Organizations who intend to apply for funds through this RFP must apply online at www.citydataservices.net. To obtain a temporary login username and password, please visit and request at www.citydataservices.net. For additional questions, please contact Alec Vybiral, Assistant Housing Planner, at [email protected] or (408) 777-1347. Any RFP application that does not meet the deadline will not be accepted.

Note: All proposals are subject to the conditions, instructions and specifications included in this NOFA/RFP. Applicants will be notified of upcoming meetings and public hearings to discuss the expenditure of BMR AHF, General Fund HSG, and CDBG funds.

The City will provide alternative accessible formats of this document upon request. If you need this document in an alternative format such as large print, Braille, audiotape, or computer disc, please contact the City at the contact information listed above.
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RESOLUTION NO. 17-02

A RESOLUTION OF THE HOUSING COMMISSION OF THE CITY OF CUPERTINO RECOMMENDING APPROVAL OF THE 2017-18 CDBG, GENERAL FUND HUMAN

SERVICE GRANTS (HSG) PROGRAM AND BELOW MARKET-RATE (BMR)

AFFORDABLE HOUSING FUND (AHF) RECOMMENDED FUNDING ALLOCATIONS TO

CITY COUNCIL FOR FINAL ADOPTION
WHEREAS, the Housing and Community Development Act of 1974 provides that funds be made available for the Community Development Block Grant (CDBG) Program; and WHEREAS, the City of Cupertino wishes to apply for funds as an Entitlement Jurisdiction under said Act; and
WHEREAS, the City of Cupertino estimates receiving a $307,952 CDBG entitlement grant from the United States Department of Housing and Urban Development (HUD) to be allocated for fiscal year 2017-18; and
WHEREAS, the City of Cupertino estimates allocating $7,944 in CDBG program income for fiscal year 2017-18; and
WHEREAS, The City of Cupertino estimates allocating up to $8,161 of available uncommitted CDBG funds from prior fiscal year 2016-17 for fiscal year 2017-18; and WHEREAS, the City of Cupertino is required to submit a fiscal year 2017-18 CDBG Annual Action Plan to HUD for review and approval prior to being allowed to expend CDBG funds for fiscal year 2017-18; and
WHEREAS, the City of Cupertino put into place a CDBG Contingency Plan (Exhibit 1) because of the uncertainty in the federal budget and the revised timeline provided by HUD to submit the Action Plan; and
BE IT FURTHER RESOLVED that the Housing Commission of the City of Cupertino hereby recommends approval of the fiscal year 2017-18 CDBG, HSG and BMR AHF recommended funding allocations (Exhibit 2) to the City Council for final adoption; and BE IT FURTHER RESOLVED that the fiscal year 2017-18 CDBG, HSG and BMR AHF recommended grant funding allocations will be decreased/increased based on final budget allocations by HUD and the City Council.

Attachment B - Housing Commission Resolution 17-02 (CDBG Contingency Plan) 35 CC 05-02-2023
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PASS ED AND ADOPTED at a regular meeting of the Housing Commission of the City of Cupertino this 11th day of May, 2017 by the following vote:

Vote Members of the Housing Commission
A YES: Chair Daruwalla, Vice Chair Chu, Kapil, Zhao, Bose NOES: none
ABSENT: none
ABSTAIN: none
ATTEST: APPROVED:

KerriH~ Nill~
Senior Housing Planner Chair, Housing Commission
2 36
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Exhibit 1
CDBG Contingency Plan
In the case of funding increase, the following plan is recommended:
® Public Services ($47,188): Distribute the additional available amount in the public services cap until an applicant is fully funded. If an applicant reaches the funding amount requested, any remaining funds will be distributed to other applicants who have not yet reached the maximum funding amount.
® Administration ($63,107): Funds are to be allocated to the City of Cupertino for CDBG administration. General Fund allocation will be reduced accordingly. ® Capital/Housing Projects ($213,259): Distribute the additional available amount in the capital/housing projects cap until an applicant is fully funded. If an applicant reaches the funding amount requested, any remaining funds will be distributed to other applicants who have not yet reached the maximum funding amount.

In the case of a funding decrease, the following plan is recommended:
® Public Services ($47,188): Distribute any funding decrease proportionately among the remaining public service applicants, but maintain a minimum funding allocation of $15,000 for any applicant to the extent feasible.
® Administration ($63,107): Any decrease in funding will be supplemented by the General Fund for CDBG administration.
® Capital/Housing Projects ($213,259): Any decrease in funding will be supplemented by the Below Market Rate (BMR) Affordable Housing Fund (AHF) for CDBG capital/housing projects. 3 37
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Attachment C
FY 2023-24 Community Development Block Grant (CDBG), Below Market Rate (BMR) Affordable Housing Funds (AHF), and General Fund Human Services Grant (HSG) Funding Application Summary

1. CDBG Capital Housing Projects:

Application 1a.

Name of Organization: Rebuilding Together Silicon Valley (RTSV) Name of Project: Housing Repair and Rehabilitation Project Annual Goal: 7 low-income Cupertino homeowners
Project Description: Provide critical home safety repairs and accessibility modifications for 7 low-income Cupertino homeowners.

Funding Request: $92,536.00
Housing Commission
Funding Recommendation: $92,536.00

2. CDBG Public Services:

Application 2a.

Name of Organization: Live Oak Adult Day Services
Name of Project: Senior Adult Day Care
Annual Goal: 20 low-income Cupertino seniors
Project Description: Provide a specialized program of adult day care for frail, dependent seniors to give respite for their caregivers.

Funding Request: $22,000.00
Housing Commission
Funding Recommendation: $19,054.05
Application 2b.

Name of Organization: West Valley Community Services (WVCS) Name of Project: Community Access to Resources and Education Program (CARE) Annual Goal: 100 low-income Cupertino residents
Project Description: CARE helps improve the self-sufficiency of low-income individuals at risk of homelessness by connecting them to community resources, making services easily available and accessible, and working with them on capacity building.

Funding Request: $41,536.00
Housing Commission
Funding Recommendation: $35,974.05
Application 2c.

Name of Organization: God’s Promise
Name of Project: Community Hub
Annual Goal: 58,622 people
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Project Description: Create a community hub to act as a space where people can relax both indoors and outdoors.

Funding Request: $58,000.00
Housing Commission
Funding Recommendation: Not eligible: 1) application doesn’t leverage any other funding sources; 2) proposal doesn’t serve at least 51% low-moderate income (LMI) persons; 3) project description and milestones are not clearly defined; 4) inadequate organizational capacity and lack of past performance measures; 5) majority of the project budget goes to administrative costs rather than direct service costs; and 6) doesn’t fall within an eligible CDBG matrix code.

3. BMR AHF Public Services:

Application 3a.

Name of Organization: Project Sentinel
Name of Project: Fair Housing – Tenant-Landlord Counseling and Dispute Resolution Services
Annual Goal: 100 low-income Cupertino residents
Project Description: Provide fair housing services to educate tenants and landlords on their respective rights and responsibilities, provides instruction on how to resolve housing problems, and conduct dispute resolution services such as mediation and conciliation to help resolve problems.

Funding Request: $50,000.00
Housing Commission
Funding Recommendation: $50,000.00

4. General Fund HSG Public Services:

Application 4a.

Name of Organization: Catholic Charities of Santa Clara County Name of Project: Long Term Care Ombudsman Program
Annual Goal: 60 low-income Cupertino residents
Project Description: The Ombudsmen helps to identify, receive, investigate, and resolve complaints, including violations of personal rights and allegations of elder abuse, for all residents in licensed long-term care facilities in the City of Cupertino.

Funding Request: $10,000.00
Housing Commission
Funding Recommendation: $10,000.00
Application 4b.

Name of Organization: Maitri
Name of Project: MTH-Direct Client Services
Annual Goal: 7 low-income Cupertino residents
Project Description: Support women and children impacted by domestic violence who are residing at Maitri's Anjali Transitional House.
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Funding Request: $25,000.00
Housing Commission
Funding Recommendation: $24,678.11
Application46c.

Name of Organization: Senior Adults Legal Assistance (SALA) Name of Project: Legal Assistance to Cupertino Elders
Annual Goal: 20 low-income Cupertino seniors
Project Description: Provide free legal assistance to seniors.

Funding Request: $16,500.00
Housing Commission
Funding Recommendation: $16,287.55
Application 4d.

Name of Organization: West Valley Community Services (WVCS) Name of Project: Haven to Home
Annual Goal: 75 low-income Cupertino residents
Project Description: Provide case management using a harm reduction approach in helping struggling families and individuals move out of crisis towards self-sufficiency by helping them build their own safety net in order to help them avoid homelessness.

Funding Request: $75,000.00
Housing Commission
Funding Recommendation: $74,034.34
Application 4e.

Name of Organization: God’s Promise
Name of Project: Homeless Services
Annual Goal: 12 people
Project Description: Provide shelter and assistance to homeless persons in need.

Funding Request: $125,000,00
Housing Commission
Funding Recommendation: Not eligible: 1) application doesn’t leverage any other funding sources; 2) project description and milestones are not clearly defined; 3) inadequate organizational capacity and lack of past performance measures; and 4) majority of the project budget goes to administrative costs rather than direct service costs. 40 CC 05-02-2023
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CITY OF CUPERTINO
Agenda Item
23-12208 Agenda Date: 5/2/2023
Agenda #: 6.

Subject: Consider approval of the second amendment to the Countywide Household Hazardous Waste (HHW) Collection Program agreement between the City of Cupertino and the County of Santa Clara (County) to augment funding up to an additional $90,705 to the Countywide HHW Program during Fiscal Year (FY) 2023/24 using earmarked funds within the Resource Recovery Fund 520.

Authorize the City Manager to execute the second amendment to the Countywide HHW Collection Program agreement between the City of Cupertino and the County of Santa Clara to augment funding up to an additional $90,705 to the Countywide HHW Program during FY 2023/24 for the purpose of attaining or increasing household participation, raising the not to exceed amount of the three-year 2022-2024 agreement to $198,885.

CITY OF CUPERTINO Page 1 of 1 Printed on 4/25/2023
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CITY COUNCIL STAFF REPORT
Meeting: May 2, 2023
Subject
Consider approval of a second amendment to the Countywide Household Hazardous Waste (HHW) Collection Program agreement between the City of Cupertino and the County of Santa Clara (County) to augment funding up to an additional $90,705 to the Countywide HHW Program during Fiscal Year (FY) 2023/24 using earmarked funds within the Resource Recovery Fund 520.

Recommended Action
Authorize the City Manager to execute a second amendment to the Countywide HHW Collection Program agreement between the City of Cupertino and the County of Santa Clara to augment funding up to an additional $90,705 to the Countywide HHW Program during FY 2023/24 for the purpose of attaining or increasing household participation, raising the not to exceed amount of the three-year 2022 – 2024 agreement to $198,885.

Reasons for Recommendation
The City, along with the other cities in the County, have an agreement with the County of Santa Clara (the Agreement for Countywide Assembly Bill (AB) 939 Implementation Fee, attached as Exhibit A) to collect landfill tonnage disposal fees to pay for the costs of preparing, adopting, and implementing integrated waste management plans and programs, including HHW elements. The fee is $4.10 per ton of material disposed at any landfill in the County and is collected by the County from the landfills on behalf of the jurisdictions. The agreement specifies that the $4.10 per ton fee is divided into two parts:
$1.50 per ton assists in funding an integrated Waste Management Plan, and $2.60 per ton provides funding to implement the Countywide HHW Program. The current agreement was signed in 2021 for FY’s 2021-2022, 2022-2023, and 2023-2024; this agreement runs through 6/30/2024.

The City also has Agreements for Countywide Household Hazardous Waste Collection Program (Attachment B) between the County and each city individually, which spells out the desire to use the collected $2.60 per ton fee to fund the Countywide HHW Program. This arrangement provides operational efficiency to jurisdictions as they do not each have to run their own HHW collection programs. The County HHW Program 42 CC 05-02-2023
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includes two permanent drop-off facilities for HHW as well as temporary events at various locations in the County periodically throughout the year.

Cupertino residents (1,160 in FY 2021-22) use this drop-off service for responsible disposal of unwanted HHW materials. Cupertino’s portion of the fee is based on tons of material being disposed of that originated in Cupertino, including both regular accounts and construction and demolition debris. The County keeps track of the tonnage originating in Cupertino and the fees collected on that tonnage and keeps records on the jurisdiction of residence of each person who drops materials off at a HHW Program event. The County also tracks and reports on all the associated expenses for the Program. If the cost to serve Cupertino’s participating residents exceeds the funds collected via the per ton disposal fee, Cupertino is invoiced for the difference. Each year the County provides each jurisdiction an estimate of the anticipated shortfall between collected fess and participation cost for the next fiscal year, which they call augmented funds.

To assure payment of the shortfall from each jurisdiction, each year the County creates an amendment to the agreement to identify the expected need for augmented funds.

After the end of each fiscal year the County tallies up actual attendance and issues an invoice (or refund) as appropriate.

While this amendment and augmentation process happens annually, in past years (due to lower costs and lower participation in the program) the amounts for the augmentations and overall agreement amounts did not reach the level to require Council approval.

The deadline to return the signed Amendment to the County is May 26, 2023.

Sustainability Impact
Responsible management of solid waste, including HHW, is a requirement under Assembly Bill (AB) 939, the California Integrated Waste Management Act, and is part of section ten of the City’s Climate Action Plan 2.0. The AB 939 and HHW Agreements approve the countywide collection of fees to facilitate safe and appropriate disposal or re-purposing of all wastes. Additionally, the countywide HHW Agreement is designed to reduce and eventually eliminate the residential hazardous waste that is still sent to landfill countywide and to capture some of the hazardous waste that might otherwise be illegally dumped.

Fiscal Impact
There is no impact to the General Fund for this item. For approximately seven years, the City received a refund from the County every year due to the At-Your-Door Pickup Program which limited residential participation in the County HHW Program. The money that was refunded arrived earmarked for HHW collection purposes but went into the larger Resource Recovery Fund 520 330-301. The At-Your-Door Program ended abruptly in early 2018 (the service was no longer available) and the City pivoted to using 43 CC 05-02-2023
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the County program to the full extent. In order to separate earmarked HHW funds from the Resource Recovery Fund, a new fund was created. The AB 939 HHW Fund 520 330- 312 now holds previously refunded funds earmarked for use on HHW that can fund augmentation amounts. The County supplies invoices for use of the HHW program well into the following fiscal year, so this augmented amount for FY 2023-2024 will be part of the FY 2024-2025 Base Budget under 520-81-801 750-041.

California Environmental Quality Act (CEQA)
Execution of the contract amendment is exempt from the California Environmental Quality Act under CEQA Guidelines section 15301 (operation of existing facilities and programs).
_____________________________________
Prepared by: Ursula Syrova, Environmental Programs Manager Reviewed by: Chad Mosley, Interim Director of Public Works Reviewed by: Matt Morley, Assistant City Manager
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Agreement for Countywide AB939 Implementation Fee
B – Agreement for Countywide HHW Collection Program with 1st Amdmt C – 2
nd Amendment for Countywide HHW Collection Program
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DocuSign Envelope ID: A03C71BC-0651-481 F-8F89-30783177F586 DocuSign Envelope ID: EEC33BC7-ECFF-4CC3-82FF·8E43F60A5861

AGREEMENT FOR COUNTYWIDE
AB939 IMPLEMENTATION FEE
This Agreement is made by and among the Cities and Towns of Campbell Cupertino, Gilroy, Los Altos, Los Altos Hills, Los Gatos, Milpitas, Morgan Hill Monte Sereno, Mountain View, Palo Alto, San Jose, Santa Clarp, Saratoga and unnyvale (CITIES) and the County of Santa Clara (COUNTY) on the ~ day of un 202 1. The term CITIES may refer lo ClTfES collectively or individually.

RECITALS
WHEREAS pursuant to Public Resources Code Section 4190 I, a city, county, or city and county may impose fees in amounts sufficient to pay the costs of preparing, adopting, and implementing a countywide integrated waste management plan; WHEREAS, State law Public Resource Code Section 41750 requires that the countywide integrated waste management plans contain a household hazardous waste ( HHW") element for each city within the county as well as for the unincorporated area of the county; WHEREAS, the County of Santa Clara Board of Supervisors ("Board") has imposed a Countywide A8939 Implementation Fee ("Fee") since July I, 1992 to pay for the costs of preparing, adopting, and implementing integrated waste management plans and programs including HHW program elements;
WHEREAS the Board has approved reimposing the Fee for Fiscal Years 2022, 2023, and 2024 (July I, 2021 through June 30 2024) at $4.10 per ton of waste landfilled or incinerated in the County; received at any nondisposal or collection facility located within the County and subsequently transported for disposal or incineration outside of the County; collected from any location within the County by a solid waste hauler operating pursuant to a franchise, contract, license, or permit issued by any local jurisdiction and subsequently transported for disposal or incineration outside of the County; and removed from any location in the County by any person or business for disposal or incineration outside the County; WHEREAS HHW programs provide household hazardous waste management services to residents of Santa Clara County and are necessary to meet HHW planning and management requirements under State law;
WHEREAS, jurisdictions in Santa Clara County desire to provide safe, convenient, and economical means for residents to properly dispose of household hazardous wastes in an environmentally safe manner in order to avoid unauthorized or improper disposal in the garbage, sanitary sewer, storm drain system, or on the ground or in any other manner which creates a health or environmental hazard. These wastes include, but are not limited to, common household products such as household cleaning products, spot remover, furniture polish, solvents, oven cleaner, pesticides, oil based paints, motor oil, antifreeze, nuorcscent lamps, and batteries; and Agreement for Countywide AB939
Implementation Fee FYs 2022 • 2024
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DocuSign Envelope ID: A03C71 BC-0651-481F-8F89-307B3177F5B6 WHEREAS, the County will collect the Fee on behalf of the fifteen cities and for the unincorporated area of the County and will apportion the Fee according to the terms of this Agreement.

NOW THEREFORE, CITIES and COUNTY AGREE AS FOLLOWS:

1. PURPOSE
The purpose of this Agreement is to state the terms and conditions under which the COUNTY will collect and distribute the Fee of $4.10 per ton of waste to be disposed in Fiscal Years 2022, 2023 and 2024. The Fee is divided into two parts: 1) a Program Fee of $1.50 per ton to assist in funding the costs of preparing, adopting, and implementing the integrated waste management plan in the fifteen cities and the unincorporated area of the County; and 2) a Household Hazardous Waste Fee of $2.60 per ton to provide funding to implement the Countywide HHW Program. The Program Fee will be allocated among the CITIES and COUNTY as described in Exhibit B, attached hereto and incorporated herein. The HHW Fee will be allocated to the COUNTY, CITIES, and Countywide HHW Program as described in Exhibit C, attached hereto and incorporated herein. The Fee shall be imposed on each ton of waste landfilled or incinerated within the County; received at any non-disposal or collection facility located within the County and subsequently transported for disposal or incineration outside of the County; collected from any location within the County by a solid waste hauler operating pursuant to a franchise, contract, license, or permit issued by any local jurisdiction and subsequently transported for disposal or incineration outside of the County; or removed from any location in the County by any person or business for disposal or incineration outside the County.

Non-Disposal Facilities are defined as those facilities included in the County of Santa Clara NonDisposal Facility Element (and subsequent amendments to that Element) and are listed in Exhibit A, attached hereto and incorporated herein.

2. SERVICES PROVIDED BY COUNTY
COUNTY will collect and distribute the Fee. COUNTY will collect the Fee from landfills and non-disposal facilities listed in Exhibit A, and any landfill or non-disposal facility subsequently permitted, on a quarterly basis using data from tonnage reports filed by landfill and non-disposal facility operators with the County Recycling and Waste Reduction Division.

COUNTY shall require each landfill and non-disposal facility to submit required payment, documentation of tonnages disposed, and state-mandated Disposal Reporting System Reports on a quarterly basis, within 45 days of the end of each calendar quarter. Late submissions and/or payments shall be subject to a late filing penalty and delinquent penalties. COUNTY will research Santa Clara County tonnage reported to COUNTY by landfills outside the COUNTY in significant amounts to determine the identity of the hauler. That hauler will subsequently be billed in the same fashion subject to the same penalties as mentioned above. Collected funds and any late filing payments and delinquency penalties shall be distributed to CITIES and Countywide HHW Program based on the formula set forth in Exhibits B and C. COUNTY shall not be obligated to distribute funds that COUNTY has been unable to collect from landfill or non-disposal facility operators.

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Agreement for Countywide AB939
lmplementat1on Fee FY s 2022 - 20-zz.-----

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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-307B3177F5B6

3. ROLE OF CITIES
CITIES shall review the Disposal Reporting System Reports as prepared and submitted by the COUNTY and within 30 days ofreceipt shall report to COUNTY, with appropriate documentation, errors in waste allocations among jurisdictions.

4. COLLECTION AND USE OF FEE
Each ton of waste will be subject to the fee if it is landfilled or incinerated in the County; received at any non-disposal facility or collection facility in the County and subsequently transported for disposal or incineration outside the County; collected from any location within the County by a solid waste hauler operating under franchise, contract, license, or permit issued by a local jurisdiction and subsequently transported for disposal or incineration outside the County; or removed from any location in the County by any person or business for disposal or incineration outside the County. Best efforts will be made to prevent tonnage from being assessed a double fee (for instance, once at a non-disposal facility and again at a landfill within Santa Clara County). The Program Fee funding share paid to CITIES shall be used to assist in funding the CITIES' costs of preparing, adopting, and implementing the integrated waste management plan of each of the CITIES and the unincorporated area of the COUNTY. The HHW Fee portion shall be applied to fund the costs of CITIES' share of Countywide Household Hazardous Waste services; any HHW fees directly disbursed to CITIES as provided in this Agreement shall be used to fund the costs of preparing, adopting, and implementing the jurisdiction's HHW element of the Countywide integrated waste management plan, including providing HHW services to residents.

5. INSURANCE
Each party shall maintain its own insurance coverage, through third party insurance, selfinsurance or a combination thereof, against any claim, expense, cost, damage or liability arising out of the performance of its responsibilities pursuant to this Agreement. CITIES agree to provide evidence of such insurance to COUNTY via Certificate of Insurance or other documentation acceptable to the COUNTY upon request.

6. INDEMNIFICATION
In lieu of and not withstanding the pro rata risk allocation which might otherwise be imposed between CITIES and COUNTY pursuant to Government Code Section 895.6, the parties agree that all losses or liabilities incurred by a party shall not be shared pro rata but instead the parties agree that each of the parties hereto shall fully indemnify and hold each of the other parties harmless from any claim, expense or cost, damage or liability arising out of, or in connection with, performance of its responsibilities pursuant to this Agreement and as described in Exhibit D.

Additionally, CITIES shall indemnify, hold harmless, and defend COUNTY, its officers, agents, and employees with respect to any loss, damage, liability, cost or expenses, including attorney fees and court costs, arising from any misuse of the Fee distributed to CITIES.

COUNTY shall indemnify, hold harmless, and defend CITIES, its officers, agents, and Agreement for Countywide AB939
Implementation Fee FYs 2022 - 2024

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DocuSign Envelope ID: A03C71BC-0651-481 F-8F89-307B3177F5B6 employees with respect to any loss, damage, liability, cost or expenses, including attorney fees and court costs, brought by third parties based on COUNTY's sole negligence in the collection or distribution of said Fees.

7. DISTRIBUTION OF FEE
COUNTY shall distribute the AB939 Program Fee to CITIES and the HHW Program Fee to the Countywide HHW Program pursuant to the formulas described in Exhibits B and C within 45 days of receipt of landfill and non-disposal facility payments and disposal documentation required for calculation of Fee distribution amounts. Distributions shall begin December 15, 2021, and continue quarterly through October 15, 2024.

8. PARTICIPATION IN THE COUNTYWIDE HHW PROGRAM
CITIES, at their option, may individually participate in the Countywide HHW Program by entering into the AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM.

9. LATE PAYMENTS
If Fee payments and disposal documentation are not received from landfill or nondisposal facility operators prior to scheduled distribution of payments to CITIES and the Countywide HHW Program, payment distribution shall be calculated on a pro rata share of monies received. Upon collection, late payments and accrued delinquent penalties, if any, shall be distributed among CITIES and the Countywide HHW Program according to the formula in Exhibits B and C.

10. ACCOUNTING
COUNTY shall maintain records of all transactions related to collection, use and distribution of the Fee for at least five (5) years after the termination date of this Agreement, unless otherwise required by law to retain such records for a longer period. Such records will be available for inspection upon written request by CITIES, and will include but not be limited to tonnage reports submitted by landfills and non-disposal facilities, waste stream documentation provided by cities, payments made by the landfills and non-disposal facilities to the COUNTY and by the COUNTY to CITIES, and expenditures for programmatic and overhead costs.

11. REQUEST FOR REVIEW
In the event CITIES have a dispute regarding the calculation of its share of the Fee or the distribution or use of the Fee, CITIES may request in writing a review by COUNTY within 10 days of receipt of their Fee allocation. The review shall be performed within 30 days ofrequest and results shall be reported to CITIES in writing.

12. EFFECTIVE DATE OF AGREEMENT
This agreement is effective upon approval by all fifteen CITIES and the COUNTY.

Agreement for Countywide AB939
Implementation Fee F Ys 21J2r-2W.-----------------

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13. AMENDMENT
This Agreement may be amended only by an instrument signed by all fifteen CITIES and the COUNTY.

14. INDEPENDENT CONTRACTOR
Each party shall perform responsibilities and activities described herein as an independent contractor and not as an officer, agent, servant or employee of any of the parties hereto. Each party shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors, if any. Nothing herein shall be considered as creating a partnership or joint venture between the parties.

15. TERM OF AGREEMENT
The term of this Agreement shall be from July 1, 2021 to June 30, 2024, or until all funds from the last quarter's Fee payments have been distributed, whichever is later. COUNTY shall bill the operators of the landfills and non-disposal facilities listed in Exhibit A for the Fee commencing with the Quarter ending September 30, 2021. Said landfills and non-disposal facilities will be billed for the Fee through June 30, 2024.

16. NOTICES
All notices required by this Agreement will be deemed given when in writing and delivered personally or deposited in the United States mail, postage prepaid, return receipt requested, addressed to the other party at the address set forth below or at such address as the party may designate in writing in accordance with this section.

City of ____________ _
Contact:

Title:

Address:

County of Santa Clara
Contact: Recycling and Waste Reduction Program Manager
Recycling and Waste Reduction Division
Address: 1555 Berger Drive, Suite 300
San Jose, CA 95112

17. CONTROLLING LAW
This Agreement shall be governed and construed in accordance with the laws of the State of California.

II
Agreement for Countywide AB939
Implementation Fee FYs 2022 - 2024

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DocuSign Envelope ID: A03C71 BC-0651-481F-8F89-307B3177F5B6

18. ENTIRE AGREEMENT
This document embodies the entire Agreement between the parties with respect to the subject matter hereof. No modification of this Agreement shall be effective unless and until modification is evidenced by writing signed by all parties or their assigned designees.

19. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.

20. CONTRACT EXECUTION
Unless otherwise prohibited by law or County policy, the parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term "electronic copy of a signed contract" refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term "electronically signed contract" means a contract that is executed by applying an electronic signature using technology approved by the County.

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Agreement for Countywide AB939
Implementation Fee FYs 2022 - 202-- ----

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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-307B3177F5B6 DocuSign Envelope ID: EEC33BC7-ECFF-4CC3-82FF-8E43F60A5861 IN WITNESS WHEREOF, the parties have executed this AGENCY AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE on the dates as stated below:

Date: JUN O 8 2021
Date: _____ _
Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President, Board of
Supervisors
ATTEST:

APPROVED AS TO FORM AND LEGALITY: I( DocuSigned by:

Sl~;±::~4B~4Ji
t,J-'HANlt, ~AtUI
Deputy County Counsel
Agreement for Countywide AB939
Implementation Fee FYs 2022 - 2024
COUNTY OF,SA~~A rRA itMA:7~
MIKE WASSERMAN, President
Board of Supervisors
"CITY"
CITY/TOWN OF _____ _
Title __________ _
A municipal corporation

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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-307B3177F5B6 IN WITNESS WHEREOF, the parties have executed this AGENCY AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE on the dates as stated below:

Date: _____ _
Date: 4: /l lj (cA
Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President, Board of
Supervisors
ATTEST:

MEGAN DOYLE
Clerk of the Board of Supervisors
APPROVED AS TO FORM AND LEGALITY:

STEPHANIE SAFDI
Deputy County Counsel
Agreement for Countywide AB939
Implementation Fee FYs 2022- 2024

COUNTY OF SANT A CLARA
MIKE WASSERMAN, President
Board of Supervisors
"CITY"
-~

CITY/TOWN OF
~~u CA-~~~B-LLTi tie }? t...R.::. \...-\ c__ \.,\_A]~ ·y Q...E;CCv c_ A municipal corporation
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DocuSign Envelope ID: A03C71BC-0651-481 F-8F89-307B3177F5B6 IN WITNESS WHEREOF, the parties have executed this AGENCY AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE on the dates as stated below:

Date: _____ _
Date: 5/4/2021
Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President, Board of
Supervisors
ATTEST:

MEGAN DOYLE
Clerk of the Board of Supervisors
APPROVED AS TO FORM AND LEGALITY:

STEPHANIE SAFDI
Deputy County Counsel
Agreement for Countywide AB939
Implementation Fee FYs 2022 - 2024

COUNTY OF SANTA CLARA
MIKE WASSERMAN, President
Board of Supervisors
"CITY"
CITY/TOWN OF Cupertino
Title City Manager
A municipal corporation
Page '7-ef-14 9 of 29
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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-307B3177F5B6 IN WITNESS WHEREOF, the parties have executed this AGENCY AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE on the dates as stated below:

Date: ------
D 5/5/2021 ate: _____ _
Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President, Board of
Supervisors
ATTEST:

MEGAN DOYLE
Clerk of the Board of Supervisors
APPROVED AS TO FORM AND LEGALITY:

STEPHANIE SAFDI
Deputy County Counsel
Agreement for Countywide AB939

COUNTY OF SANT A CLARA
MIKE WASSERMAN, President
Board of Supervisors
"CITY"
IADocuSigned by:
----~::JEfs~:~s---- CITY /TOWN Ut Gilrny ---'------
Title City Administrator
A municipal corporation
lmplemenfahon Fee FYs2U22 - 20z.- -------

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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-307B3177F5B6 IN WITNESS WHEREOF, the parties have executed this AGENCY AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE on the dates as stated below:

Date: _____ _
Date: 5/-'J.1 ( ~\
Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President, Board of
Supervisors
ATTEST:

MEGAN DOYLE
Clerk of the Board of Supervisors
APPROVED AS TO FORM AND LEGALITY:

STEPHANIE SAFDI
Deputy County Counsel
Agreement for Countywide AB939
Implementation Fee FYs 2022 - 2024

COUNTY OF SANTA CLARA
MIKE WASSERMAN, President
Board of Supervisors
"CITY"

CITY /TOWN OF LOS ALTOS HILLS
Title City Manager
A municipal corporation
Page '.7-.of-M 11 of 29
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DocuSign Envelope ID: A03C71BC-0651-481F-8F89-30783177F586 IN WITNESS WHEREOF, the parties have executed this AGENCY AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE on the dates as stated below:

Date: ------
Date: ------
Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President, Board of
Supervisors
ATTEST:

MEGAN DOYLE
Clerk of the Board of Supervisors
APPROVED AS TO FORM AND LEGALITY:

STEPHANIE SAFDI
Deputy County Counsel
Agreement for Countywide AB939

COUNTY OF SANTA CLARA
MIKE WASSERMAN, President
Board of Supervisors
"CITY"
CTTY/fOWN OF ~il~ - Title Interim city Manager
A municipal corporation
'-DocuSigned by:
~0831 E7C58841464 ... JV I I 'C nvu.;, l.VII
City Attorney
Implementation Fee FYs 2022 - 2,,,.,,,------------
Page '7-e-f-i4 12 of 29
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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-307B3177F 5B6 IN WITNESS WHEREOF, the parties have executed this AGENCY AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE on the dates as stated below:

Date: _____ _
Date: 5/5/2021
Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President, Board of
Supervisors
ATTEST:

MEGAN DOYLE
Clerk of the Board of Supervisors
APPROVED AS TO FORM AND LEGALITY:

STEPHANIE SAFDI
Deputy County Counsel
Agreement for Countywide AB939
Implementation Fee FYs 2022 - 2024

COUNTY OF SANT A CLARA
MIKE WASSERMAN, President
Board of Supervisors
"CITY"
G=i"P~ 853FEEA2EB39470... LOS GATOS CJTY/TUWN UF
Title TOWN MANAGER ------- A municipal corporation
APPROVED AS TO FORM:
r-:DocuSigned by:
~tEi5~;4~~~

ROBERT SCHULTZ
Town Attorney
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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-307B3177F5B6 IN WITNESS WHEREOF, the parties have executed this AGENCY AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE on the dates as stated below:

Date: ------
Jun-01-2021
Date: _____ _
Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President, Board of
Supervisors
ATTEST:

MEGAN DOYLE
Clerk of the Board of Supervisors
APPROVED AS TO FORM AND LEGALITY:

STEPHANIE SAFDI
Deputy County Counsel
Agreement for Countywide AB939
lmplemenfahon fee FY's2022 - 2022- ---

COUNTY OF SANTA CLARA
MIKE WASSERMAN, President
Board of Supervisors
"CITY"
CITY /TOWN OF M1lp1tas
------- Title Deputy City Manager
A municipal corporation
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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-307B3177F5B6 IN WITNESS WHEREOF, the parties have executed this AGENCY AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE on the dates as stated below:

Date: _____ _
Date:

Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President, Board of
Supervisors
ATTEST:

MEGAN DOYLE
Clerk of the Board of Supervisors
APPROVED AS TO FORM AND LEGALITY:

STEPHANIE SAFDI
Deputy County Counsel
Agreement for Countywide AB939
Implementation Fee FYs 2022 - 2024

COUNTY OF SANTA CLARA
MIKE WASSERL\1AN, President
Board of Supervisors

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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-307B3177F5B6 DocuSign Envelope ID: 25A85F8E-8DED-405F-90C3-0DFDAFCD832F IN WITNESS WHEREOF, the parties have executed this AGENCY AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE on the dates as stated below:

Date: _____ _
Date: 4/28/2021
Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President, Board of
Supervisors
ATTEST:

MEGAN DOYLE
Clerk of the Board of Supervisors
APPROVED AS TO FORM AND LEGALITY:

STEPHANIE SAFDI
Deputy County Counsel
Agreement for Countywide AB939
Implementation Fee FYs 2022 - 2024

COUNTY OF SANTA CLARA
MIKE WASSERMAN, President
Board of Supervisors
"CITY"
C ilcf©-WN46>F Morgan Hill
Title City Manager
A municipal corporation
DOfJ5[6j;>Ifiz-iW4
City Attorney
-------------------1-'-a~-44-16-of-i Y-.2~:9--
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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-307B3177F5B6 Date: May 3, 2021
"CITY":

CITY OF MOUNTAIN VIEW,
a California charter city and municipal corporation
IJDocuSigned by:

By: ~:~:36~
City Manager
Attest:

City Clerk
APPROVED AS TO CONTENT:

Public Works Director
FINANCIAL APPROVAL:

Asst. Finance and Administrative
Services Director
APPROVED AS TO FORM:

Sr. Asst. City Attorney
Agreement for Countywide AB939
Implementation Fee FYs 2022 - 2024
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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-307B3177F5B6 IN WITNESS WHEREOF, the parties have executed this AGENCY AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE on the dates as stated below:

Date: _____ _
3/25/2021
Date: ------
Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President, Board of
Supervisors
ATTEST:

MEGAN DOYLE
Clerk of the Board of Supervisors
APPROVED AS TO FORM AND LEGALITY:

STEPHANIE SAFDI
Deputy County Counsel
Agreement for Countywide AB939
Implementat10n Fee FYs 2022 - 2024

COUNTY OF SANTA CLARA
MIKE WASSERMAN, President
Board of Supervisors
"CITY"
r-; DocuSigned by:
~:!A'!!tstbV\, ' Palo Alto '-".1_.1_•/.1_'-.J,f.1_"1'-.JI Title Di rector of Public works
A municipal corporation

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DocuSi~n Envelope ID: A03C71BC-0651-481 F-8F89-307B3177F5B6 lL"lf WITNESS WHEREOF, the parties have executed this AGENCY AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE on the dates as stated below:

Date: _____ _
Date: May 27, 2021
Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President, Board of
Supervisors
ATTEST:

MEGAN DOYLE
Clerk of the Board of Supervisors

APPROVED AS TO FORM AND
LEGALITY:

STEPHANIE SAFDI
Deputy County Counsel
Agreement for Countywide AB939
Implementation Fee FY s 2022 - 2024

COUNTY OF SANTA CLARA
MIKE WASSERMAN, President
Board of Supervisors
"CITY"
CITY OF SAN JOSE, a municipal
corporation
TONI J. TABER, CMC
City Clerk
APPROVED AS TO FORM:

Mark Vanni (May 24, 202113:30 PDT)

MARK VANNI
Senior Deputy City Attorney

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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-307B3177F5B6 IN WITNESS WHEREOF, the parties have executed this AGENCY AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE on the dates as stated below:

Date: _____ _
Date: _____ _
Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President, Board of
Supervisors
ATTEST:

MEGAN DOYLE
Clerk of the Board of Supervisors
APPROVED AS TO FORM AND LEGALITY:

STEPHANIE SAFDI
Deputy County Counsel
Agreement for Countywide AB939
lmplementahon Fee F Ys 20'227 202,l

COUNTY OF SANTA CLARA
MIKE WASSERMAN, President
Board of Supervisors
"CITY"
Manuel Digitally signed by Manuel
Pineda
P. eda Date: 2021.06.02 1n 1?:29:ss -o7'oo·

CITY/TOWN OF SANTA CLARA
Title City Manager
A municipal corporation
C-. c..,u__
Digitally signed by Caio
Arellano
Date: 2021.06.02
09:40: 10 -07'00'
CAIO ARELLANO for Brian Doyle, City Attorney
Santa Clara City Attorney's Office
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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-30783177F586 IN WITNESS WHEREOF, the parties have executed this AGENCY AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE on the dates as stated below:

Date: _____ _
Date: _____ _
Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President, Board of
Supervisors
ATTEST:

MEGAN DOYLE
Clerk of the Board of Supervisors
APPROVED AS TO FORM AND LEGALITY:

STEPHANIE SAFDI
Deputy County Counsel
Agreement for Countywide AB939
Implementation Fee FYs 2022 - 2024

COUNTY OF SANTA CLARA
MIKE WASSERMAN, President
Board of Supervisors
"CITY"
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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-307B3177F5B6 IN WITNESS WHEREOF, the parties have executed this AGENCY AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE on the dates as stated below:

Date: _____ _
Date: __ 4_1_2 l_/_20_2_1_
Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President, Board of
Supervisors
ATTEST:

MEGAN DOYLE
Clerk of the Board of Supervisors
APPROVED AS TO FORM AND LEGALITY:

STEPHANIE SAFDI
Deputy County Counsel
Agreement for Countywide AB939
Implementation Fee FYs 2022 - 2024

COUNTY OF SANTA CLARA
MIKE WASSERMAN, President
Board of Supervisors
"CITY"
CITY/TOWN OF Sunnyvale
Title City Manager
A municipal corporation
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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-307B3177F5B6

EXHIBIT A

LANDFILLS LOCATED IN SANTA CLARA COUNTY
Guadalupe Rubbish Disposal Site
Kirby Canyon Sanitary Landfill
Newby Island Sanitary Landfill
Zanker Materials Processing Facility
Zanker Road Landfill

NON-DISPOSAL FACILTIES AND TRANSFER STATIONS LOCATED IN

SANTA CLARA COUNTY
California Waste Solutions Recycling & Transfer Station City of Palo Alto Green Composting Facility
Environmental Resource Recovery, Inc. (Valley Recycling) Green Earth Management LLC Kings Row Recycling Facility Green Waste Materials Facility and Transfer Station
Green Waste Recovery Facility
Green Team of San Jose Material Recovery Facility and Transfer Station Guadalupe Landfill
Lam Hauling Inc. Chipping and Grinding
Lam Hauling Inc. Inert Debris Type A
Leo Recycle
Material Recovery Systems Facility
Mission Trail Waste Systems, Inc.

Newby Island Compost Facility
Pacheco Pass Transfer Station
Pacific Coast Recycling, Inc.

Premier Recycle Facility
Recology Silicon Valley Processing and Transfer Facility The Recyclery at Newby Island
San Martin Transfer Station
Smurfit-Stone Recycling San Jose Facility
South Valley Organics
Stanford Recycling Center and Direct Transfer Facility
Sunnyvale Materials Recovery and Transfer Station (SMaRT Station) Valley Recycling San Jose CDI Processing/Transfer Facility Wood Processing Facility at Recology Pacheco Pass
Z-Best Composting Facility
Zanker Materials Processing Facility
Zanker Road Class III Landfill
Zero Waste Energy Development Company Anaerobic Digestion Facility Agreement for Countywide AB939
Implementation Fee FYs 2022 - 2024
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DocuSign Envelope ID: A03C71BC-0651-481F-8F89-307B3177F5B6

EXHIBIT B
FORMULA FOR DISTRIBUTION OF AB939 PROGRAM FEE
Each of the CITIES, and the COUNTY for its unincoporated area, will receive $1.50 per ton of solid waste disposed of in landfills or taken to non-disposal facilities located in Santa Clara County that originates from that jurisdiction, as documented in quarterly reports submitted by the County to the State Disposal Reporting System.

Fees collected from undocumented disposed tonnage, or tonnage originating outside of Santa Clara County, will be distributed according to each jurisdiction's percent of countywide population, according to the latest available population report issued by the California Department of Finance.

Agreement for Countywide AB939
lmplemenfabon Fee FYs 2022 - 202,-..---

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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-30783177F586

EXHIBITC

COUNTYWIDE HOUSEHOLD HAZARDOUS
WASTE PROGRAM FEE (HHW Fee)

1. PROGRAM FUNDING SOURCE
HHW Program services are mandated by State law, Public Resources Code Section 41500 et seq. Public Resources Code Section 41901 authorizes imposition of a fee to support planning and implementation of integrated waste management programs, including their HHW elements. The HHW Fee, of $2.60 per ton, collected as part of the AB939 lmplementation Fee, will be the primary source of funding for Countywide Household Hazardous Waste Collection Program (CoHHW Program) services.

Funds derived from the HHW Fee will be allocated among five types of CoHHW Program service costs as follows:

A. Fixed Program Costs will be apportioned based on the number of households in each participating jurisdiction. The number of households will be determined at the beginning of each Fiscal Year by statistics compiled by the California Department of Finance, Demographic Research Unit from their most recent Report, "Population Estimates for California Cities and Counties."
B. San Jose Facility Use Surcharge will be apportioned based on CITIES' anticipated participation at the County Household Hazardous Waste Collection Facility located at 1608 Las Plumas A venue, San Jose.

C. Variable Cost Per Car is the cost associated with labor, waste disposal, transportation, and other services provided to residents at the County HHW Collection Facilities and at temporary HHW collection events. The Variable Cost Per Car is based on the estimated cost of providing a base level service to 4% of households in all participating jurisdictions. The number of households will be determined at the beginning of each Fiscal Year by statistics compiled by the California Department of Finance, Demographic Research Unit from their most recent Report, "Population Estimates for California Cities and Counties."
D. Available Discretionary Funding is allocated based on tonnage generated per participating jurisdiction, and after allocation of Fixed Program Costs, San Jose Facility Use Surcharge, and Variable Cost Per Car allocation.

E. Abandoned Waste Disposal Costs will fund disposal of HHW illegally abandoned at Nonprofit Charitable Reuser organizations as defined in Public Resources Code Section 41904.

II
II
Agreement for Countywide AB939
Implementation Fee FYs 2022 - 2024

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2. FIXED PROGRAM COST
Funds shall be allocated on a per household basis for Fixed Program Costs at the conclusion of each Fiscal Year. This portion of the funds shall be distributed directly to the Countywide HHW Program to pay for HHW Program costs. Fixed Program Costs funding shall be calculated shall not exceed $3.75 per household in Fiscal Years 2022, 2023, and 2024. Fixed Program Costs may include, but are not limited to eleven (11) CoHHW Program staff members, facility leasing costs, vehicle lease costs, office rent, office supplies, county administrative overhead, county legal counsel, training costs, equipment and facility maintenance, and union negotiated salary and benefit changes.

3. ABANDONED WASTE DISPOSAL COST
The Abandoned Waste Disposal Cost will fund disposal of HHW illegally abandoned at Nonprofit Charitable Reuser organizations. The Abandoned Waste Disposal Cost is based on the cost to the County to dispose of abandoned waste allocated among participating jurisdictions based on their proportional share of the County population and shall not exceed $0.05 per household. Projected Abandoned Waste Disposal Costs to the CITY based on a charge of $.05 per household are set forth in Attachment A, attached hereto and incorporated herein.

Any existing unexpended non-profit abandoned waste fund balance may be allocated toward funding of disposal of HHW illegally abandoned at nonprofit charitable re user organizations as defined in Public Resources Code Section 41904.

For the purposes of this agreement, a nonprofit charitable reuse organization has the definition provided in Public Resources Code Section 41904 as follows: "Nonprofit charitable reuser" means a charitable organization, as defined in Section 501 ( c )(3) of the federal Internal Revenue Code, or a distinct operating unit or division of the charitable organization, that reuses and recycles donated goods or materials and receives more than 50 percent of its revenues from the handling and sale of those donated goods or materials.

4. SAN JOSE FACILITY USE SURCHARGE
The total San Jose Facility Use Surcharge for CITY will be based on CITY residents' proportional participation at the County Household Hazardous Waste Collection Facility located at 1608 Las Plumas Avenue, San Jose. The San Jose Facility Use Surcharge will vary depending on facility usage but will not exceed $8.29 per car for Fiscal Years 2022, 2023, and 2024. The total San Jose Facility Use Surcharge for CITY will be based on CITY's participation at the County Household Hazardous Waste Collection Facility located at 1608 Las Plumas Avenue, San Jose.

5. VARIABLE COST PER CAR
The Variable Cost Per Car is the cost associated with actual labor, waste disposal, transportation and other services provided to the residents at the County HHW Collection Facilities and Temporary Events. This portion of the funds shall be distributed directly to the Countywide HHW Program. The Variable Cost Per Car is estimated to be $58.20 per car for Agreement for Countywide AB939
lmplementat1on Fee FYs 2022 - 20""2""4 ______ _

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DocuSign Envelope ID: A03C71 BC-0651-481 F-8F89-307B3177F5B6 Fiscal Years 2022, 2023, and 2024. The estimated cost per car will be adjusted annually to reflect actual service costs. After fixed costs and San Jose Facility Use Surcharge are allocated on a per household basis, the variable cost per car will be used to calculate the costs to service 4% of households across all participating jurisdictions. If the level of 4% of households is not reached, the Countywide HHW Program will use the remaining balance of funds, in cooperation with the CITIES, to increase public outreach and/or provide additional services in that jurisdiction where the level of 4% is not reached the following year.

6. AVAILABLE DISCRETIONARY FUNDING
The Available Discretionary Funding portion will be allocated based on the tons of waste generated within each jurisdiction and after allocation of Fixed Program Cost, San Jose Facility Use Surcharge, and Variable Per Car Cost. Available Discretionary Funds must be used for HHW purposes. Options for how to spend these funds include, but are not limited to, increasing the number of residents served in the jurisdiction by the Countywide HHW Program, universal waste collection, emergency HHW services, funding HHW public education, the support of capital infrastructure projects to accommodate HHW drop-off and collection events, or providing special programs such as retail collection of certain waste and/or door-to-door collection of HHW for the elderly and/or persons with disabilities and neighborhood clean-up events. CITIES authorize the COUNTY to determine appropriate uses of available discretionary funding and to use CITIES' Available Discretionary Funding portion of the AB939 HHW Fee to provide for additional HHW services requested by the CITIES.

7. PROGRAM FUNDING PASS-THROUGH
Annual funding calculations include HHW Fees collected on behalf of all jurisdictions in the County. CITIES, at their option, may participate in the Countywide HHW Program by entering into the AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM. If CITIES elect to participate in the Countywide HHW Program, their pro-rata share of the HHW Fee shall be retained by the County to utilize for HHW Program costs, as provided in this Agreement and the Agreement for Countywide Household Hazardous Waste Collection Program. The COUNTY will distribute to CITIES not participating in the Countywide Household Hazardous Waste Collection Program their pro-rata share of funding received by the COUNTY from the HHW Fee, except that the COUNTY may retain and expend that portion of the non-participating CITIES' fee attributable to Abandoned Waste Disposal Costs.

If CITIES not participating in the AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM desire to allow residents to participate in HHW Program services on an emergency basis, then services to these residents will be provided on a cost recovery basis. A charge equal to the established rates charged by the Countywide HHW Program to Conditionally Exempt Small Quantity Generators will be billed to the CITIES.

A CITIES' representative must call the Countywide HHW Program appointment line to schedule an appointment for the resident. Liability shall be apportioned as provided in Exhibit D to this Agreement.

Agreement for Countywide AB939
Implementation Fee FYs 2022 - 2024

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DocuSig n Envelope ID: A03C 71BC-0651-481 F-8F89-30783177F 586

EXHIBITD
SECTION 28 OF AGENCY AGREEMENT

FOR COUNTYWIDE HOUSEHOLD HAZARDOUS

WASTE COLLECTION PROGRAM

HOLD HARMLESS AND INDEMNIFICATION
In lieu of and not withstanding the pro rata risk allocation which might otherwise be imposed between CITY and COUNTY pursuant to Government Code Section 895.6, the parties agree that all losses or liabilities incurred by a party shall not be shared pro rata but instead COUNTY and CITY agree that pursuant to Government Code Section 895.4, each of the parties hereto shall fully indemnify and hold each of the other parties, their officers, board members, employees and agents, harmless from any claim, expense or cost, damage or liability imposed for injury (as defined by Government Code Section 810.8) occurring by reason of the negligent acts or omissions or willful misconduct of the indemnifying party, its officers, employees or agents, under or in connection with or arising out of any work, authority or jurisdiction delegated to such party under this Agreement. No party, nor any officer, board member, employee or agent thereof shall be responsible for any damage or liability occurring by reason of the negligent acts or omissions or willful misconduct of the other parties hereto, their officers, board members, employees or agents, under or in connection with or arising out of any work authority or jurisdiction delegated to such other parties under this Agreement.

Additionally, CITY shall indemnify COUNTY for CITY's apportioned share of any liability incurred and attributed to the Countywide HHW Program for the transportation, treatment, or disposal of the household hazardous waste, once the waste has been accepted by a licensed hazardous waste hauler. Apportionment for disposal liability shall be determined by each participating jurisdiction's pro rata proportion of household participation in the Program.

Apportionment for transportation and treatment liability shall be determined by each participating jurisdiction's pro rata household participation at the event where the waste was generated. COUNTY will use reasonable efforts to obtain recovery from all available resources, including insurance, of any liable hauler or liable disposal facility operator. No liability shall be apportioned to CITY for transportation, treatment or disposal in any case where COUNTY has contracted for such services and has failed to require the contractor to maintain the insurance requirements set forth in Section 23 of the AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM.

CITY shall further indemnify COUNTY for CITY's apportioned share ofliability incurred and attributed to the Countywide HHW Program for the transportation, treatment or disposal of household hazardous waste at corporate sponsored events where non-county resident employees of the corporate sponsor are authorized to participate in the event. Liability for the nonresident portion of the disposal of waste shall be shared by the cities and the county as described above. The nonresident portion shall be determined by calculating the percentage of nonresidents participating in the event. This percentage will then be subtracted from the total liability for the household hazardous waste prior to assessing CITY's apportioned share of any liability for the household hazardous waste.

Agreement for Countywide AB939
Implementat10n Fee FY s 2022 - 21)72,_ ____ _

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Do cu Sign Envelope ID: A03C71 BC-0651-481 F-8F89-30783177F586 COUNTY shall require Conditionally Exempt Small Quantity Generators ("CESQG") and Nonprofit Charitable Reusers to indemnify COUNTY for, at minimum, their apportioned share of any liability incurred and attributed to the Countywide HHW Program for the transportation, treatment, or disposal of their hazardous waste, once the waste has been accepted by a licensed hazardous waste hauler. The CESQG and Nonprofit Charitable Reuser portion of the waste shall be determined by calculating the percentage, by weight, of the total household hazardous waste accepted by the CoHHW Program. This percentage will be used to calculate the portion of liability attributed to CESQGs and Nonprofit Charitable Reusers and will be subtracted from the total liability prior to assessing CITY' s apportioned share of any liability for household hazardous waste.
2378874
Agreement for Countywide AB939
Implementation Fee FYs 2022 - 2024

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DocuSign Envelope ID: D381DA68-A1BC-4CC9-A730-40DA9E44CE78

AGREEMENT FOR COUNTYWIDE

HOUSEHOLD HAZARDOUS WASTE

COLLECTION PROGRAM
This Agreement is made by and between the City of Cupertino County of Santa Clara (COUNTY) on the 17th day of

RECITALS
(CITY) and the
June 2021.

WHEREAS, the County Board of Supervisors has approved a Countywide Household Hazardous Waste Collection Program whereby residents of the County and cities and towns participating in the Countywide program will have an opportunity to safely dispose of household hazardous wastes (HHW), regardless of the specific location at which the collection has been scheduled; and
WHEREAS, CITY desires to provide residents with convenient opportunities to safely dispose of their HHW in order to encourage the proper disposal of toxic products, and avoid unauthorized or improper disposal in the garbage, sanitary sewer, storm drain system, or on the ground, in a manner which creates a health or environmental hazard; and WHEREAS, CITY desires to provide a safe, convenient, and economical means for residents to dispose of HHW. These wastes include, but are not limited to, common household products such as household cleaning products, furniture polish, solvents, oven cleaner, pesticides, oil based paints, motor oil, antifreeze, car batteries, mercury thermostats, fluorescent lamps, household batteries, and electronic waste; and
WHEREAS, CITY desires to schedule Household Hazardous Waste Collection Events (Events) for residents for FY 2022 through FY 2024 (July 1, 2021 -June 30, 2024); and WHEREAS, CITY desires to provide household hazardous waste collection services to a minimum of 4% of the households per fiscal year in its jurisdiction; and WHEREAS, CITY desires to participate in the Countywide Household Hazardous Waste Collection Program to meet these objectives; and
WHEREAS, pursuant to Public Resources Code Section 41901, the County Board of Supervisors has approved the collection of a $4.10 per ton Countywide AB939 Implementation fee, including a $2.60 per ton Household Hazardous Waste Fee (AB939 HHW Fee), for FY 2022 through FY 2024 (July 1, 2021 -June 30, 2024) on all wastes landfilled or incinerated within the County, received at any non-disposal or collection facility located within the County and subsequently transported for disposal or incineration outside of the County, collected from any location within the County by a solid waste hauler operating pursuant to a franchise, contract, license, or permit issued by any local jurisdiction and subsequently transported for disposal or incineration outside of the County, or removed from any location in the county by any person or business for disposal or incineration outside the County; and Agreement for Countywide Household
Hazardous Waste Collection Program Page I of26
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DocuSign Envelope ID: D381 DA68-A 1 BC-4CC9-A730-40DA9E44CE78 WHEREAS, the AB939 HHW Fee is allocated to the Countywide Household Hazardous Waste Program and participating jurisdictions to fund HHW program costs in accordance with the terms of the Countywide AB939 Implementation Fee Agreement; and WHEREAS, CITY desires for COUNTY to utilize CITY's share of the AB939 HHW Fee to provide HHW services for CITY residents.

NOW THEREFORE, CITY and COUNTY AGREE AS FOLLOWS:

1. PURPOSE
The purpose of this Agreement is to state the terms and conditions under which CITY will participate in the Countywide Household Hazardous Waste Collection Program (CoHHW Program) available to its residents. Participating jurisdictions are those jurisdictions that enter into an AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM with the County.

2. PROGRAM FUNDING SOURCE
HHW Program services are mandated by State law, Public Resources Code Section 41500 et seq. State law authorizes cities and counties to impose fees in amounts sufficient to support planning and implementation of integrated waste management programs, including HHW elements. The AB939 HHW Fee, of $2.60 per ton, imposed by the County as part of the AB939 Implementation Fee and collected and distributed in accordance with the AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE will be the primary source of funding for CoHHW Program services. CITY agrees that COUNTY may utilize CITY's share of the AB939 HHW fee to provide HHW Program services in accordance with the terms and conditions of this Agreement.

Funds derived from the AB939 HHW Fee will be allocated among five types of CoHHW Program service costs as follows:

A. Fixed Program Costs will be apportioned based on the number of households in each participating jurisdiction. The number of households will be determined at the beginning of each Fiscal Year by statistics compiled by the California Department of Finance, Demographic Research Unit from their most recent Report, "Population Estimates for California Cities and Counties." B. San Jose Facility Use Surcharge will be apportioned based on CITY residents' participation at the County Household Hazardous Waste Collection Facility located at 1608 Las Plumas Avenue, San Jose, CA 95133.

C. Variable Cost Per Car is the cost associated with labor, waste disposal, transportation, and other services provided to residents at the County HHW Collection Facilities and at temporary HHW collection events. The Variable Cost Per Car is based on the estimated cost of providing a base level service to 4% of Agreement for Countywide Household
Hazardous Waste Collection Program "Page 2 of 26
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DocuSign Envelope ID: D381DA68-A1BC-4CC9-A730-40DA9E44CE78 households in all participating jurisdictions. The number of households will be determined at the beginning of each Fiscal Year by statistics compiled by the California Department of Finance, Demographic Research Unit from their most recent Report, "Population Estimates for California Cities and Counties." D. Available Discretionary Funding is allocated based on tonnage generated per participating jurisdiction, and after allocation of Fixed Program Costs, San Jose Facility Use Surcharge, and Variable Cost Per Car allocation.

E. Abandoned Waste Disposal Costs will fund disposal ofHHW illegally abandoned at Nonprofit Charitable Reuser organizations as defined in Public Resources Code Section 41904.

The projected AB939 HHW Fee Allocation by jurisdiction is set out in Attachment A, attached hereto and incorporated herein.

3. FIXED PROGRAM COST
Estimated HHW Fixed Program Costs are projected in Attachment B, attached hereto and incorporated herein. Fixed Program Costs are allocated to CITY at the conclusion of each fiscal year based on CITY's proportional share of the County population and will not exceed $3.75 per household for Fiscal Years 2022, 2023, and 2024. Fixed Program Costs may include, but are not limited to, up to eleven (11) County HHW Program staff members, facility lease costs, vehicle lease costs, office rent, office supplies, county administrative overhead, county legal counsel, training costs, equipment and facility maintenance and union negotiated salary and benefit changes.

4. ABANDONED WASTE DISPOSAL COST
The Abandoned Waste Disposal Cost will fund disposal of HHW illegally abandoned at Nonprofit Charitable Reuser organizations. The Abandoned Waste Disposal Cost is based on the cost to the County to dispose of abandoned waste allocated among participating jurisdictions based on their proportional share of the County population and shall not exceed $0.05 per household. Projected Abandoned Waste Disposal Costs to the CITY based on a charge of $.05 per household are set forth in Attachment A, attached hereto and incorporated herein.

For the purposes of this Agreement, "Nonprofit Charitable Reuser Organization" is defined in accordance with Public Resources Code Section 41904 as follows: a charitable organization, as defined in Section 501 ( c )(3) of the federal Internal Revenue Code, or a distinct operating unit or division of the charitable organization, that reuses and recycles donated goods or materials and receives more than 50 percent of its revenues from the handling and sale of those donated goods or materials.

5. SAN JOSE FACILITY USE SURCHARGE
The total San Jose Facility Use Surcharge for CITY will be based on CITY residents' proportional participation at the County Household Hazardous Waste Collection Facility located Agreement for Countywide Household
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DocuSign Envelope ID: D381DA68-A 1 BC-4CC9-A730-40DA9E44CE78 at 1608 Las Plumas Avenue, San Jose. Estimated San Jose Facility Use Surcharges are projected in Attachment A, attached hereto and incorporated herein. The San Jose Facility Use Surcharge will vary depending on facility usage but will not exceed $8.29 per car for Fiscal Years 2022, 2023, and 2024.

6. VARIABLE COST PER CAR
The Variable Cost Per Car is the cost associated with actual labor, waste disposal, transportation and other services provided to the residents at the County Household Hazardous Waste Collection Facilities (CoHHWCF) and at Temporary Events. The Variable Cost Per Car is estimated to be approximately $58.20 per participating resident car for Fiscal Years 2022, 2023 and 2024. The estimated cost per car will be adjusted to reflect actual service costs. After Fixed Program Costs and San Jose Facility Use Surcharge are allocated on a per household basis, the Variable Cost Per Car will be used to calculate the costs to service 4% of households across all participating jurisdictions. If the level of 4% of households is not reached in the CITY, the CoHHW Program may use the remaining balance of funds, in cooperation with the CITY, to increase public outreach and/or provide additional services in that jurisdiction the following year.

7. AVAILABLE DISCRETIONARY FUNDING
The Available Discretionary Funding portion of the AB939 HHW Fee will be allocated based on the tons of waste generated within each jurisdiction, and after allocation of Fixed Program Costs, San Jose Facility Use Surcharge, and Variable Cost Per Car allocation.

Available Discretionary Funds must be used for HHW purposes. Options for how to spend these funds include, but are not limited to, increasing the number of residents served in that jurisdiction by the CoHHW Program, subsidizing curbside used motor oil collection, electronic waste (e-waste) collection, universal waste collection, emergency HHW services, funding HHW public education, the support of capital infrastructure projects to accommodate HHW drop-off and collection events, or providing special programs such as retail collection of certain waste and/or door-to-door collection of HHW for the elderly and/or persons with disabilities and neighborhood clean-up events. COUNTY has discretion to determine appropriate uses of Available Discretionary Funding in accordance with the terms and conditions in this Agreement, and to apply the funding toward those uses.

8. ADMINISTRATION AND PAYMENT OF THE AB939 HHW FEE
The County of Santa Clara Recycling and Waste Reduction Division will administer the AB939 HHW Fee, as part of the existing online disposal reporting and payment system.

Administration and payment will be made in accordance with the AGREEMENT FOR COUNTYWIDE AB939 IMPLEMENTATION FEE and this Agreement. Notwithstanding the foregoing, the COUNTY shall maintain records of the amount, use, and distribution of Fixed Program Cost expenditures for at least five (5) years after the termination date of this Agreement, unless otherwise required by law to retain such records for a longer period. CITY may request in writing a review by COUNTY of the Fixed Program Cost records. The review shall be performed within 30 days of request and results shall be reported to participating cities in writing.

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9. PROGRAM PUBLICITY
The CoHHW Program shall produce and make available to the public an HHW brochure for distribution. The brochure will be made available at various events, including but not limited to, environmental events and community fairs. The brochure may also be distributed, upon request, to cities within the County and to County residents and businesses. The CITY shall be responsible for developing and coordinating citywide awareness of the HHW Program. The CoHHW Program shall be responsible for Countywide public education for used oil recycling.

CoHHW Program public awareness responsibilities shall include, but not be limited to, the following activities:
• Serving as the formal contact to the local media such as local newspapers and television news stations;
• Providing participating jurisdictions with educational materials developed for the CoHHW Program;
• Promoting oil and oil filter recycling by developing, purchasing, and distributing educational materials, media relations materials, basic art work and camera ready advertising materials for distribution countywide and for use by jurisdictions; • Representing the program through educational presentations at schools and businesses and attendance at community events such as local fairs and festivals; and • Providing participating jurisdictions opportunities to review and comment on the development of countywide outreach materials.

CITY's public awareness responsibilities, at the sole discretion of the CITY, shall include, but not be limited to, the following activities:
• Providing a copy of HHW promotional materials to the CoHHW Program for review for accuracy and completeness, prior to publication; • Developing and distributing HHW promotion communications to residents for local and CITY newsletters, newspapers and to the electronic media; • Providing the CoHHW Program with a copy ofHHW promotion materials produced by the CITY; and,
• Conducting and supporting outreach and publicity to attain the goal of 4% of households in the CITY participating in the CoHHW Program.

10. TEMPORARY HHW EVENTS
COUNTY shall conduct Temporary HHW Events at various sites located in Santa Clara County. COUNTY shall obtain all necessary permits and licenses required for the Temporary HHW Events and shall provide or contract for the services of properly trained, qualified personnel and hazardous waste haulers, and shall provide or secure suitable equipment and supplies to properly receive, package, label, haul, recycle and dispose of the household hazardous wastes collected at the Temporary HHW Events.

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11. HOUSEHOLD HAZARDOUS WASTE COLLECTION FACILITIES
COUNTY shall conduct collection operations at two County Household Hazardous Waste Collection Facilities (CoHHWCF).

The CoHHWCF are located at:
♦ San Martin, 13055 Murphy Avenue, San Martin, CA 95046 ♦ San Jose, 1608 Las Plumas, San Jose, CA 95133
The COUNTY shall obtain all necessary permits and licenses required for the CoHHWCF and shall provide or contract for services, equipment, and supplies to properly receive, package, label, haul, recycle and dispose of wastes collected.

12. SMALL BUSINESS RECYCLING AND DISPOSAL PROGRAM
COUNTY will provide services to accept hazardous waste from Conditionally Exempt Small Quantity Generators (CESQG) in accordance with California Health and Safety Code Section 25218.3, as amended from time to time. Eligible businesses within the County will be allowed to bring their hazardous waste to CoHHWCF. These services to businesses located within the CITY will be provided on a cost recovery basis, which will include program administration, on-site collection, transportation, and disposal costs. COUNTY will assume responsibility for fee collection from participating businesses. The CITY may choose to pay for services for CESQG' s within the City of San Jose and will notify the COUNTY in writing with 30-day advance notice in order to exercise this option. If the CITY exercises this option, the COUNTY will invoice the CITY for all costs associated with CSQG's within the CITY. If CITY has available Discretionary Funding, COUNTY may use this funding to pay for CESQG costs.

For purposes of this Agreement, CESQG has the meaning provided by Health and Safety Code Section 25218.1.

13. ABANDONED HOUSEHOLD HAZARDOUS WASTE
The CoHHW Program will allow for the disposal of abandoned HHW by government agencies and qualified nonprofit charitable reusers. Abandoned HHW means HHW left at a property by an unknown party. Abandoned household hazardous waste does not include waste generated by a known organization or agency in the course of normal business operations such as, but not limited to, the assembly or manufacture of products from new or used materials or the provision of charitable services such as classroom education, meal preparation, and shelter, or the provision of services for a fee.

A) GOVERNMENT AGENCIES
Government agencies shall be charged for disposal of abandoned HHW according to the CoHHW Program's published rates for CESQGs.

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B) NONPROFIT CHARITABLE REUSER
In order to qualify as a Nonprofit Charitable Reuser, the business must submit to the County Executive a request to be so designated. The County Executive shall review the request and supporting documentation and shall make a final decision on the designation. COUNTY will accept abandoned HHW from Nonprofit Charitable Re users and will waive disposal fees on the cost of disposal of the abandoned HHW in an annual amount not to exceed funds available from the existing unexpended abandoned waste fund. Funding for disposal available to Nonprofit Charitable Reuser shall be on a first come first serve basis. Once the cost for disposal of the abandoned HHW from Nonprofit Charitable Reusers is equal to the available funds, disposal fees shall no longer be waived, and Nonprofit Charitable Reusers shall be charged for disposal of abandoned HHW according to the CoHHW Program's published rates for CESQGs. No additional costs shall be applied to the budget of the CITY or any other participating jurisdiction.

14. HOUSEHOLD HAZARDOUS WASTES ACCEPTED
HHW accepted by the CoHHW Program shall be limited to those materials that qualify as Hazardous Waste under Health and Safety Code Section 25218.1, as amended from time to time.

These materials include, but are not limited to, automotive fluids, automotive and other types of batteries, latex and oil paint, oil filters, garden chemicals, household cleaners, pool chemicals, mercury thermostats, fluorescent lamps containing mercury, household batteries, e-waste and other common hazardous consumer products.

15. WASTES NOT ACCEPTED
Certain hazardous wastes shall not be accepted for collection and disposal. These include, but are not limited to, compressed gas cylinders larger than 5 gallons, radioactive materials, and explosives. Other wastes not accepted by the CoHHW Program are wastes generated as part of operating a business, including a home operated business, except that waste from CESQGs as provided for in Section 12 of this Agreement shall be accepted.

16. ADDITIONAL SERVICES UNDER THIS AGREEMENT
CITY must augment funding provided under this Agreement to cover the cost of a minimum participation level of 4% of CITY households; CITY may also elect to augment funding to provide additional services to increase CITY participation beyond the 4% minimum participation level. Additional services shall be made available upon written agreement between the CITY's authorized representative and the County Executive Officer or designee. Additional services may include, but are not limited to, additional appointments (charged at the Variable Cost Per Car rate), door-to-door HHW collection, used oil filter collection, universal waste collection, electronic waste collection, and abandoned waste collection.

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DocuSign Envelope ID: D381DA68-A 1 BC-4CC9-A730-40DA9E44CE78 CITY agrees to augment up to an additional $_36,963_ to the Countywide HHW Program during Fiscal Year 2022 for the purpose of attaining or increasing CITY household participation above the 4% minimum participation level at the scheduled collection dates listed in Attachment C, attached hereto and incorporated herein. Augmentation will be calculated, where applicable, at the Variable Cost Per Car rate. Other services will be charged based on a cost recovery basis. CITY authorizes the COUNTY to use CITY'S Available Discretionary Funding portion of the AB939 HHW Fee, if available, to offset the above agreed additional augmentation amount.

At the end of each fiscal year, a final annual cost statement shall be prepared by COUNTY and issued to CITY by November 30th. The annual cost statement will take into consideration costs incurred on behalf of CITY for additional services and all payments made by CITY to COUNTY. If any balance is owed to COUNTY, it will be due within 30 days following receipt of the annual cost statement. If any credit is owed to CITY, COUNTY will refund that amount to CITY within 30 days following delivery of the annual cost statement.

17. INFORMATION AND APPOINTMENT LINE
COUNTY will operate a telephone information and appointment desk Monday through Friday, from the hours of 9:00 a.m. to 5:00 p.m. The information service will register residents for the Temporary HHW Events and the collections at CoHHWCF. The information service will provide information about hazardous household materials. CITY will be notified immediately if resident participation approaches a level of service that may not be supported by available funding.

18. SCHEDULING AND SITE SELECTION
COUNTY shall work with CITY to determine the date(s) of Temporary Events and collections at the CoHHWCF. CITY shall coordinate with COUNTY in locating and securing sites for Temporary HHW Events. It is recognized that some of the jurisdictions participating in the CoHHW Program may not have appropriate sites available. A proposed HHW schedule for Fiscal Year 2022 of Temporary Events and collections at CoHHWCF is included as Attachment C. COUNTY will schedule an adequate number of collection days to serve the 4% level of service. The COUNTY determines the adequate number of collection days by tracking attendance at each event.

19. OUTSIDE FUNDING
During the term of this Agreement, COUNTY may seek outside funding sources for services that would supplement existing HHW services such as permanent collection sites, equipment, retail take-back collection and operational funding. If outside funding is obtained, the CoHHW Program will, at COUNTY's discretion, proceed with development of additional programs using that outside funding without drawing on CITY' s funding provided under this Agreement.

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20. REGIONAL GRANT AND OIL PAYMENT PROGRAM PARTICIPATION The CITY authorizes the CoHHW Program to apply for lead agency grants, including but not limited to Used Oil Payment Program grants, from the California Department of Resources Recycling and Recovery (CalRecycle ), on behalf of participating jurisdictions. The CoHHW Program will act on behalf of all participating jurisdictions, as the lead applicant and administrator. The CoHHW Program will oversee how the moneys are used and work in cooperation with CITY as to how the funds will be spent. Nothing in this section shall preclude the COUNTY or a participating jurisdiction from applying for grant funds in any case where the CoHHW Program does not apply for the grant opportunity.

21. EMERGENCY SERVICES
Participating jurisdictions, at their option, may desire to provide residents with convenient emergency opportunities to safely dispose of their HHW in the event of a disaster.

The purpose of this emergency planning for HHW is to minimize potential public health and safety impacts, as well as to minimize costs and confusion. Attachment D sets out CITY and COUNTY responsibilities for the collection of household hazardous wastes in response to an emergency. CITY shall make good faith efforts to provide the public with information related to the problems associated with HHW. Upon the decision to hold an emergency collection event, it is CITY's responsibility to make a good faith effort to prepare and disseminate the necessary outreach to notify the public of an emergency collection event. An emergency collection event shall be initiated by a written request from CITY to COUNTY. Emergency collection events can be scheduled in as little as ten (l 0) working days of CITY' s written request or at an agreed upon date thereafter. The emergency collection plan is set out in Attachment D, Household Hazardous Waste Emergency Collection Plan.

COUNTY agrees to conduct the Emergency Collection Event at a mutually agreeable site and time. The COUNTY will obtain the necessary permit from the State Department of Toxic Substances Control and will handle wastes in accordance with State law. COUNTY will bill CITY for all Emergency Collection Events on a cost recovery basis and all payments shall be due COUNTY within thirty days following the receipt of the invoice.

22. PRIVATE SPONSORED EVENTS
COUNTY may also secure funding from corporations or agencies to conduct HHW Collection Events for corporate employees and residents of participating jurisdictions and to pay for special programs such as Universal Waste collection at retail locations. The transportation, treatment and disposal liability for nonresident employee participation in these events shall be shared by all participating jurisdictions, including the CITY, and the COUNTY, as described in Section 26 of this Agreement. Summary information concerning these corporate sponsored events, if any, will be included in the CoHHW Program's annual report to the participating jurisdictions.

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23. INSURANCE REQUIREMENTS
Contractors who provide hazardous waste transportation, treatment, or disposal services shall have the required insurance as outlined in Attachment E, Exhibit B-2D (revised) Insurance Requirements for Environmental Services Contract. Other contractors shall have insurance in amounts to be determined by COUNTY Insurance Manager, after consultation with CITY.

COUNTY shall obtain insurance certificates from each of the contractors prior to the contractor providing service to the program naming the COUNTY as an additional insured.

24. WASTE TRACKING AND REPORTING
COUNTY will provide a mid-year report to CITY regarding participation rates from each participating jurisdiction by March 15 of each year. Mid-year and year end reports will outline the types and quantities of waste collected, the amount of waste diverted for reuse or recycling and the waste management method for each waste stream and associated costs for services.

COUNTY will prepare a report summarizing program activities which will be delivered to the participating jurisdictions no later than six months after the end of COUNTY's fiscal year.

It will be assumed for cost and reporting purposes that each participating jurisdiction is contributing to the waste stream in proportion to the number of its residents who directly participate.

COUNTY shall take steps to assure that the bi-annual statements to jurisdictions reflect the funds necessary to cover costs for CITY participation in services scheduled during the next quarter.

25. PARTICIPATION REPORTING
COUNTY shall employ means necessary to verify the place of residence of all participants in the CoHHW Program.

26. HOLD HARMLESS AND INDEMNIFICATION
In lieu of and not withstanding the pro rata risk allocation which might otherwise be imposed between CITY and COUNTY pursuant to Government Code Section 895.6, the parties agree that all losses or liabilities incurred by a party shall not be shared pro rata but instead COUNTY and CITY agree that pursuant to Government Code Section 895.4, each of the parties hereto shall fully indemnify and hold each of the other parties, their officers, board members, employees and agents, harmless from any claim, expense or cost, damage or liability imposed for injury (as defined by Government Code Section 810.8) occurring by reason of the negligent acts or omissions or willful misconduct of the indemnifying party, its officers, employees or agents, under or in connection with or arising out of any work, authority or jurisdiction delegated to such party under this Agreement. No party, nor any officer, board member, employee or agent thereof shall be responsible for any damage or liability occurring by reason of the negligent acts or omissions or willful misconduct of the other parties hereto, their officers, board members, employees or agents, under or in connection with or arising out of any work authority or jurisdiction delegated to such other parties under this Agreement.

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DocuSign Envelope ID: D381DA68-A 1 BC-4CC9-A730-40DA9E44CE78 Additionally, CITY shall indemnify COUNTY for CITY's apportioned share of any liability incurred and attributed to the Countywide HHW Program for the transportation, treatment, or disposal of the household hazardous waste, once the waste has been accepted by a licensed hazardous waste hauler. Apportionment for disposal liability shall be determined by each participating jurisdiction's pro rata proportion of household participation in the Program.

Apportionment for transportation and treatment liability shall be determined by each participating jurisdiction's pro rata household participation at the event where the waste was generated. COUNTY will use reasonable efforts to obtain recovery from all available resources, including insurance, of any liable hauler or liable disposal facility operator. No liability shall be apportioned to CITY for transportation, treatment or disposal in any case where COUNTY has contracted for such services and has failed to require the contractor to maintain the insurance requirements set forth in Section 23 above.

CITY shall further indemnify COUNTY for CITY's apportioned share of liability incurred and attributed to the Countywide HHW Program for the transportation, treatment or disposal of household hazardous waste at corporate sponsored events where non-county resident employees of the corporate sponsor are authorized to participate in the event. Liability for the nonresident portion of the disposal of waste shall be shared by the cities and the COUNTY as described above. The nonresident portion shall be determined by calculating the percentage of nonresidents participating in the event. This percentage will then be subtracted from the total liability for the household hazardous waste prior to assessing CITY's apportioned share of any liability for the household hazardous waste.

COUNTY shall require CESQGs and Nonprofit Charitable Reusers to indemnify COUNTY, at minimum, for their apportioned share of any liability incurred and attributed to the Countywide HHW Program for the transportation, treatment, or disposal of their hazardous waste, once the waste has been accepted by a licensed hazardous waste hauler. The CESQG and Nonprofit Charitable Reuser portion of the waste shall be determined by calculating the percentage, by weight, of the total household hazardous waste accepted by the CoHHW Program. This percentage will be used to calculate the portion of liability attributed to CESQGs and Nonprofit Charitable Reusers and will be subtracted from the total liability prior to assessing CITY's apportioned share of any liability for household hazardous waste.

27. TERMINATION
This Agreement may be terminated by either the COUNTY or CITY upon thirty (30) days written notice given by the terminating party.

28. TERM OF AGREEMENT
The term of this Agreement shall be from July 1, 2021 to June 30, 2024, or until all revenue from the last quarter's AB939 fee payments have expended and/or distributed, whichever is later.

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29. INDEPENDENT CONTRACTOR
Each party shall perform responsibilities and activities described herein as an independent contractor and not as an officer, agent, s~rvant or employee of any of the parties hereto. Each party shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors, if any. Nothing herein shall be considered as creating a partnership or joint venture between the parties.

30. EXECUTION BY COUNTERPART
This Agreement may be executed in any number of counterparts, each of which shall for all purposes be deemed an original and all of which shall together constitute one and the same instrument.

31. CONTROLLING LAW
This Agreement shall be governed and construed in accordance with the laws of the State of California.

32. ENTIRE AGREEMENT
This document embodies the entire Agreement between the parties with respect to the subject matter hereof. No modification of this Agreement shall be effective unless and until modification is evidenced by writing signed by all parties or their assigned designates.

33. NOTICES
All notices and communications herein required shall be in writing to the other party as follows, unless expressly changed in writing:

CITY of ______ _
Santa Clara County

34. CONTRACT EXECUTION
City Representative ___________ _
Representative's Title __________ _
City Address _____________ _
Director
Consumer and Environmental Protection Agency
1553 Berger Drive
San Jose, California 95112
Unless otherwise prohibited by law or County policy, the parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect Agreement for Countywide Household
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DocuSign Envelope ID: D381 DA68-A 1 BC-4CC9-A730-40DA9E44CE78 as a contract executed with an original ink signature. The term "electronic copy of a signed contract" refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term "electronically signed contract" means a contract that is executed by applying an electronic signature using technology approved by the County.

IN WITNESS WHEREOF, the parties have executed this AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM on the dates as stated below:
6/17/2021
Date: _____ _
Date: 5/4/2021
APPROVED AS TO FORM AND LEGALITY:

STEPHANIE SAFDI
Deputy County Counsel
Attachments:

COUNTY OF SANTA CLARA
~
DocuSigned by:
7/Y,.f!,.4-- 21 F905OBO1084 DZ
JEFFREY V. SMITH
County Executive
"CITY"
CITY/TOWN OF Cupertino
Title City Manager
A municipal corporation
A Projected Fiscal Years 2022, 2023, and 2024 AB939 HHW Fee Funding Allocation by Jurisdiction
B Estimated HHW Program Fixed Costs for Fiscal Years 2022, 2023, and 2024 C HHW Schedule of Collection Events for Fiscal Year 2022 D Household Hazardous Waste Emergency Collection Plan
E Exhibit B-2D (revised) Insurance Requirements for Environmental Services Contracts 2378821
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DocuSign Envelope ID: D381DA68-A 1 BC-4CC9-A730-40DA9E44CE78 ATTACHMENT A: PROJECTED FISCAL YEARS 2022-2024 ANNUAL HHW FEE

FUNDING ALLOCATION BY JURISDICTION
Abandoned
Waste Disposal
No of 4%of Disposal AB939 HH\N Fee Fixed Cost $3. 75 SJ Facility $8.29 Variable Cost Cost $.05 per Discretionary Estimated Cities Households Households Tonnage $2.60 per Ton per HH Surcharge $58.20 per Car Household Fund Auamentation Campbell 18,158 726 40,970 $ 106,521 $ 68,093 $ 7,162 $ 42,272 $ 908 $ (11,913) $ 45,525 Cupertino 21,050 842 41,603 $ 108,168 $ 78,938 $ 4,242 $ 49,004 $ 1,053 $ (25,068) S 36,963 Gilroy 16,676 667 53,681 $ 139,571 $ 62,535 $ 1,086 $ 38,822 $ 834 $ 36,295 s 23,027 LosAHos 11,677 467 17,678 $ 45,963 $ 43,789 $ 4,188 $ 27,184 $ 584 $ (29,781) S 90,803 Los Altos Hilts 3,180 127 9,303 $ 24,188 $ 11,925 $ 958 $ 7,403 $ 159 $ 3,743 s 4,413 Los Gatos 13,637 545 25 ,338 $ 65,878 $ 51,139 $ 6,784 $ 31,747 $ 682 $ (24,474) $ 66,018 Milpitas 22,553 902 100,225 $ 260,586 $ 84,574 $ 5,247 $ 52,503 $ 1,128 $ 117,135 s 24 ,851 Monte Sereno 1,383 55 1,278 $ 3,323 $ 5,186 $ 789 $ 3,220 $ 69 $ {5,941) $ 11 ,138 Morgan Hill 15,350 614 43,759 $ 113,774 $ 57,563 $ 2,252 $ 35,735 $ 768 $ 17,456 s 78,579 Mountain View 36,727 1,469 77,033 $ 200,285 $ 137,726 $ 4,700 $ 85,500 $ 1,836 $ (29,478) S 39,356 Palo Alto 29,298 0 63,437 $ 164,936 $ $ $ 1,465 $ 163,471 San Jose 336,507 13,460 810,331 $ 2,106,860 $ 1,261,901 $ 114,172 $ 783,388 $ 16,825 $ (69,427) $ 476,507 Santa Clara 48,975 1,959 160,175 $ 416,455 $ 183,656 $ 9,178 $ 114,014 $ 2,449 $ 107,157 s 121 ,604 Saratoga 11,301 452 19,996 $ 51,990 $ 42,379 $ 4,458 $ 26,309 $ 665 $ (21,72ol $ 45,244 Sunnyvale 60,273 2,411 116,128 $ 301,932 $ 226,024 $ 6,717 $ 140,316 $ 3,014 $ (74,138) $ 152,321 Unincorporated 18,558 742 38, 112 $ 99,092 $ 69,593 $ 4,640 $ 43,203 $ 928 $ (19,271) S 57,932 Total 665,303 25,440 1,619,047 $ 4,209,522 $ 2,385,019 $ 176,572 $ 1,480,620 $ 33,265 $ 134,047 s 1,274,282 Notes: Number ofHH and Disposal tonnage are based on FY2019-2020 actuals. Anticipated participation and anticipated participation at SJ facility are based on 15% increase from FY2018-2019 actual participation.

Agreement for Countywide Household
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Anticipated
Participation
1,268
1,034
1,038
1,451
259
1,216
1,303
139
1,881
1,628
20,026
3,920
831
3,672
1,677
41,345
Anticipated
Particiation
at SJ
Facility
1,221
723
185
714
163
1,157
895
135
384
802
19,470
1,565
760
1,145
791
30,110
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DocuSign Envelope ID: D381DA68-A1BC-4CC9-A730-40DA9E44CE78 ATTACHMENT B: ESTIMATED ANNUAL HHW PROGRAM FIXED COSTS
FOR FISCAL YEARS 2022, 2023, AND 2024
Staff Salary and Benefits
County Admin Overhead
County Counsel
Phones and Communications
Facilities Lease Costs
Vehicle Costs
Office Supplies and postage
Maintenance, Software
HHW Hotline
Garbage & Utilities
Membership & Dues
Training & Conference
Safety Wear
Printing
Other Services & Supplies

ESTIMATED ANNUAL TOTAL
Agreement for Countywide Household
Hazardous Waste Collection Program

FIXED COST
San Jose

$1,568,216
$421,899
$13,650
$10,605
$176,572
$34,125
$1,916
$115,500
$50,000
$36,488
$15,750
$5,250
$21,840
$13,583
$56,175
$2,541,568
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DocuSign Envelope ID: D381DA68-A 1 BC-4CC9-A 730-40DA9E44CE78 ATTACHMENT C: HHW SCHEDULE OF PERMANENT & TEMPORARY
COLLECTION EVENTS FOR FISCAL YEAR 2021-2022*
2021/Month Day Date Location Type of Event County Holidays/ Notes July Thurs,Fri 1,2 San Jose Permanent
Saturday 3 No Event No Event 4th OF JULY WEEK
Wed,Thurs,Fri,Sat 7,8,9,10 San Jose Permanent
Fri,Sat 9,10 San Martin Permanent
T hurs,Fri,Sat 15,16,17 San Jose Permanent
Saturday 17 Sunnyvale Temporary TBD
Wed,Thurs,Fri,Sat 21,22,23,24 San Jose Permanent
Thurs,Fri,Sat 29,30,31 San Jose Permanent
August Wed,Thurs,Fri,Sat 4,5,6,7 San Jose Permanent
Fri,Sat 6,7 San Martin Permanent
Thurs,Fri,Sat 12,13,14 San Jose Permanent
Saturday 14 Mountain View Tenu,oraiv TBD
Wed,Thurs,Fri,Sat 18,19,20,21 San Jose Permanent
Thurs,Fri,Sat 26,27,28 San Jose Permanent
September Wed,Thurs,Fri 1,2,3 San Jose Permanent
Saturday 4 No Event No Event LABOR DAY WEEKEND
Thurs,Fri,Sat 9,10,11 San Jose Permanent
Fri,Sat 10,11 San Martin Permanent
Wed,Thurs,Fri,Sat 15,16,17,18 San Jose Permanent
, Satuidav . · .>:,43:.: ., .. . , ·Sahta Cfaia'.?:.. ' SrJ.lf'•"'noraiv ;,:• I·-'._,·-·, , ·· TBD ··:ic. · .

Wed,Thurs,Fri,Sat 22,23,24,25 San Jose Permanent
Thursday 30 San Jose Permanent
October Fri,Sat 1,2 San Jose Permanent
Fri, Sat 1,2 San Martin Permanent
Wed,Thurs,Fri,Sat 6,7,8,9 San Jose Permanent
Thurs,Fri,Sat 14,15,16 San Jose Permanent
Saturday 16 . sunnyyaie ·c·- :..;;,~TemPOflliv;) "· . -,, ,:: · .. TBD ._,./:- .

Wed,Thurs,Fri,Sat 20,21,22,23 San Jose Permanent
Thurs,Fri,Sat 28,29,30 San Jose Permanent
November Wed,Thurs,Fri,Sat 3,4,5,6 San Jose Permanent
Fri, Sat 5,6 San Martin Permanent
Fri,Sat 12,13 San Jose Permanent
Wed,Thurs,Fri,Sat 17,18,19,20 San Jose Permanent
Tuesday 23 San Jose Permanent
Thurs,Fri,Sat 25,26,27 No Event No Event THANKSGIVING
December Wed,Thurs,Fri,Sat 1,2,3,4 San Jose Permanent
Fri, Sat 3,4 San Martin Permanent
Wed,Thurs,Fri,Sat 8,9,10,11 San Jose Permanent
Thurs,Fri,Sat 16,17,18 San Jose Permanent
Tues,Wed,Thurs 21,22,23 San Jose Permanent
Fri,Sat 24,25 No Event No Event CHRISTMAS
Tues,Wed,Thurs 28,29,30 San Jose Permanent
Friday 31 No Event No Event NEWYEAR's DAY
Agreement for Countywide Household
Hazardous Waste Collection Program
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DocuSign Envelope ID: D381DA68-A1BC-4CC9-A730-40DA9E44CE78 ATTACHMENT C: HHW SCHEDULE OF PERMANENT & TEMPORARY
COLLECTION EVENTS FOR FISCAL YEAR 2021-2022* (Continued) 2022/Month Day
2022/Jan Saturday
Thurs,Fri,Sat
Fri, Sat
Wed,Thurs,Fri,Sat
Saturday
Wed,Thurs,Fri,Sat
Thurs,Fri,Sat
Saturday
February Wed,Thurs,Fri,Sat
Fri, Sat
Thurs,Fri,Sat
Wed,Thurs,Fri,Sat
Thurs,Fri,Sat
March Wed,Thurs,Fri,Sat
Fri, Sat
Thurs,Fri,Sat
Wed,Thurs,Fri,Sat
Wed,Thurs,Fri,Sat
April Fri,Sat
Fri, Sat
Wed,Thurs,Fri,Sat
Saturday
Thurs,Fri,Sat
Saturday
Wed,Thurs,Fri,Sat
Thurs,Fri,Sat
Saturday
May Wed,Thurs,Fri,Sat
Fri, Sat
T hurs,Fri,Sat
Wed, Thurs,Fri,Sat
Thurs,Fri
Saturday
June Wed,Thurs,Fri,Sat
Fri, Sat
Thurs,Fri,Sat
Wed,Thurs
Friday
Saturday
Saturday ..

Thurs,Fri,Sat
Wed,Thurs
*SUBJECT TO CHANGE
Agreement for Countywide Household
Hazardous Waste Collection Program
Date Location Type of Event County Holidays/ Notes
1 No Event No Event NEW YEAR's DAY
6,7,8 San Jose Pennanent
7,8 San Martin Permanent
12, 13,14, 15 San Jose Pennanent
15 Sunnyvale Temporary TBD
19,20,21,22 San Jose Pennanent
27,28,29 San Jose Pennanent
29 Santa Clara Temporary TBD
2,3,4,5 San Jose Permanent
4,5 San Martin Permanent
10,11,12 San Jose Pennanent
16,17,18,19 San Jose Pennanent
24,25,26 San Jose Pennanent
2,3,4,5 San Jose Pennanent
4,5 San Martin Pennanent
10,11,12 San Jose Permanent
16,17,18,19 San Jose Permanent
23,24,25,26 San Jose Pennanent
1,2 San Jose Pennanent
1,2 San Martin Permanent
6,7,8,9 San Jose Permanent
9 Los Altos Temporary TBD
14,15,16 San Jose Permanent
16 Sunnvvale Temporary TBD
20,21,22,23 San Jose Permanent
28,29,30 San Jose Pennanent
30 Santa Clara Temporary TBD '
4,5,6,7 San Jose Pennanent
6,7 San Martin Pennanent
12,13,14 San Jose Permanent
18, 19,20,21 San Jose Pennanent
26,27 San Jose Pennanent
28 No Event No Event MEMORIAL DAY WEEKEND
1,2,3,4 San Jose Pennanent
3,4 San Martin Permanent
9,10,11 San Jose Permanent
15,16 San Jose Permanent
17 No Event No Event JUNETEENTH DAY
18 San Jose Pennanent
;.' ··:. 25 ,·· ·. t MDpilas'· Temoorary ..,-; TBO , .. ,. ·•·'.·':;.' 23,24,25 San Jose Permanent
29,30 San Jose Permanent

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DocuSign Envelope ID: D381DA68-A 1 BC-4CC9-A730-40DA9E44CE78 ATTACHMENT D:

COUNTY HOUSEHOLD HAZARDOUS WASTE

EMERGENCY COLLECTION PLAN

1. PURPOSE
The purpose of the Household Hazardous Waste Emergency Collection Plan is to minimize potential public health and safety impacts, as well as to minimize costs and confusion during an emergency or disaster. This Attachment describes the services the County can provide and the responsibilities of each party for the collection of household hazardous wastes (HHW) in response to an emergency as defined by the local jurisdiction.

Jurisdictions should contact local emergency agencies, the Governor's Office of Emergency Services (OES), and the Department of Toxic Substances Control (DTSC) for more specific information on hazardous materials emergency response.

2. Timing ofHHW
While it is important to have special collection opportunities for disaster-related HHW as soon as possible to avoid illegal disposal or harm to people and/or the environment, having an event or service too soon after a disaster may result in low participation. Sufficient public notification, assessment and monitoring of the disaster and cleanup process by the designated City HHW Coordinator( s) is essential.

3. Public Information/Notification:

Cities should be prepared to provide the public with information related to the problems associated with HHW along with information about special collection events and services. Upon the decision to hold an emergency collection event, it is the City's responsibility to prepare and deliver the necessary public outreach to notify the public of an upcoming event. A City's public outreach program should evaluate all forms of media including: newspaper ads, posters, flyers, press releases, banners, door-to-door notices, roadside signs, signs on dumpsters, radio public service announcements, social media outlets and television public access stations. Be aware of communities where multiple language outreach efforts will be necessary.

4. State HHW Collection Permits
The State Department of Toxic Substances Control (DTSC) is responsible for issuing the necessary state permits for HHW collection facilities. During an emergency, the County will obtain the necessary emergency permit for special collection of household hazardous waste from DTSC through their expedited approval process.

5. Collection Events
Agreement for Countywide Househol_d __ _
Hazardous Waste Collection Program Page 18 o 2
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DocuSign Envelope ID: D381DA68-A1BC-4CC9-A730-40DA9E44CE78 Temporary collection events can be set-up at various sites including parking lots, city maintenance yards, within neighborhoods needing service, and at landfills or a centralized location to service larger segments of the population. Waste collected will be transported with a transportation vehicle provided by the HHW Program. In addition, events can be scheduled at the two existing Countywide Household Hazardous Waste Collection Facilities (CoHHWCF).

The following options are available to each participating City. • Neighborhood Drop-off Events: The County is able to provide localized service to specific areas in need of household hazardous waste collection services. The County will work with City Solid Waste Coordinators to conduct coordinated efforts to residents in the affected area. After a specific event, waste will be transported by County staff or a hazardous waste contractor to an appropriate facility.
• Mobile HHW Event: The County conducts Household Hazardous Waste Collection Event (Events) at various sites located in Santa Clara County throughout the year. Events will be expanded to give priority to disaster victims when requested by the City. The County shall obtain all necessary permits and licenses required for the events and shall provide and/or contract for the services of properly trained personnel and hazardous waste haulers. The County shall also provide or secure suitable equipment and supplies to properly receive, package, label, haul, recycle and dispose of the household hazardous wastes collected at events.
• CoHHWCF: The County operates two permitted HHW collection facilities for the collection and storage of HHW. The County shall provide or contract for services, equipment, and supplies to properly receive, package, label, haul, recycle and dispose of wastes collected at the CoHHWCF.

The CoHHWCF are located at:
• San Martin, 13055 Murphy Ave, San Martin
• San Jose, 1608 Las Plumas, San Jose

6. Costs, Documentation, and Reimbursements
Cities will be billed on a cost recovery basis. Costs of emergency events will be tracked and billed separately. Emergency funding applications pending from the State or Federal government for reimbursements in no way relieves the City of responsibility to make timely payment to the County in accordance with the terms of the AGENCY AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM.

The County agrees to provide the City with a detailed accounting of services provided for an emergency collection. Documentation will track the time and materials of staff, outside contractor expenses, and quantities and types of waste collected to demonstrate that the wastes were generated above and beyond existing collection programs.

Services to businesses will be provided on a cost recovery basis and according to Section 12 of the AGENCY AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM, which includes program administration, on-site collection, Agreement for Countywide Household
Hazardous Waste Collection Program Page 19 of26
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Do cu Sign Envelope ID: D381DA68-A 1 BC-4CC9-A730-40DA9E44CE78 transportation, and disposal costs. The County will assume responsibility for collecting fees from participating businesses.

7. State and Federal Assistance and Funds
It is the City responsibility to pursue reimbursement from State or Federal agencies.

State Office of Emergency Services (OES)
The OES is responsible for requesting assistance on behalf of local jurisdictions for resources beyond the capability of the jurisdiction. State assistance may include assistance available from State, Federal, or private sources. If a local jurisdiction is declared a state disaster area, and the local jurisdiction deems that the needs of the disaster response are beyond its capabilities, then the local jurisdiction can request assistance and reimbursement of costs from OES.

Follow Standardized Emergency Management System (SEMS)
All requests and emergency responses must be in accordance with the SEMS. The State Department of Toxic Substances Control may have funding available for hazardous waste response and collection.

Federal Assistance
If a state disaster area is declared a federal disaster, then federal funding assistance may be available through the State OES. Funding and assistance may be available from Federal agencies such as FEMA and the U.S. EPA.

Damage estimates: The city should provide to the State OES estimates of damages and a "scope of work requested." It is recommended that the local HHW coordinator meet ahead of time with local emergency agencies or State OES contacts regarding the proper procedures and wording of requests for assistance.

Funding Process: The funding process may vary depending on the unique circumstances of the disaster. The process can either be the traditional FEMA reimbursement process, or by direct assistance from EPA.

REFERENCES
California Integrated Waste Management Board, Integrated Waste Management Disaster Plan:

Guidance for local government on disaster debris management, January 1997.

Agreement for Countywide Household ____ _
Hazardous Waste Collection Program Page 20of2
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DocuSign Envelope ID: D381DA68-A1BC-4CC9-A730-40DA9E44CE78 Emergency Planning Contacts and Personnel
Primary County Contact: County of Santa Clara
Consumer and Environmental Protection Agency
Recycling and Waste Reduction Division
Household Hazardous Waste Program
ATTN: Hazardous Materials Program Manager
( 408)-918-1967
For Non-Emergency after-hours, contact County Communications at: (408) 977-3220 Responsibility: Coordinate and establish proper collection and disposal methods for household hazardous waste. Assess the need for HHW and CESQG services in consultation with the City and other operations.

Cal OES Public Safety Communications Main Office
601 & 630 Sequoia Pacific Boulevard
Sacramento, CA 95811
(916) 657-9494
Cal OES
3650 Schriever A venue
Mather, CA 95655-4203
(916) 845-8510
CHEMTREC Emergency number, (800) 424-9300
Non-emergency (800) 262-8200
Chemtrec is a public service established by the Chemical Manufacturers Association. The Center was developed as a resource for obtaining immediate emergency response information to mitigate accidental chemical releases, and as a means for emergency responders to obtain technical assistance from chemical industry product safety specialists, emergency response coordinators, toxicologists, physicians, and other industry experts to safely mitigate incidents involving chemicals.

Agreement for Countywide Household
Hazardous Waste Collection Program Page 21 of26
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DocuSign Envelope ID: D381DA68-A 1 BC-4CC9-A730-40DA9E44CE78 Al 1ACHMtN l t
EXHIBIT B-2D (revised)

INSURANCE REQUIREMENTS FOR

ENVIRONMENTAL SERVICES CONTRACTS
(Hazardous Waste Disposal, Remediation Services, Environmental Consulting, etc.) Indemnity
The Contractor shall indemnify, defend, and hold harmless the County of Santa Clara (hereinafter "County"), its officers, agents and employees from any claim, liability, loss, injury or damage arising out of, or in connection with, performance of this Agreement by Contractor and/or its agents, employees or sub-contractors, excepting only loss, injury or damage caused by the sole negligence or willful misconduct of personnel employed by the County. It is the intent of the parties to this Agreement to provide the broadest possible coverage for the County. The Contractor shall reimburse the County for all costs, attorneys' fees, expenses and liabilities incurred with respect to any litigation in which the Contractor contests its obligation to indemnify, defend and/or hold harmless the County under this Agreement and does not prevail in that contest.

Insurance
Without limiting the Contractor's indemnification of the County, the Contractor shall provide and maintain at its own expense, during the term of this Agreement, or as may be further required herein, the following insurance coverages and provisions:

A. Evidence of Coverage
Prior to commencement of this Agreement, the Contractor shall provide a Certificate of Insurance certifying that coverage as required herein has been obtained. Individual endorsements executed by the insurance carrier shall accompany the certificate. In addition, a certified copy of the policy or policies shall be provided by the Contractor upon request.

This verification of coverage shall be sent to the requesting County department, unless otherwise directed. The Contractor shall not receive a Notice to Proceed with the work under the Agreement until it has obtained all insurance required and such insurance has been approved by the County. This approval of insurance shall neither relieve nor decrease the liability of the Contractor.

B. Qualifying Insurers
All coverages, except surety, shall be issued by companies which hold a current policy holder's alphabetic and financial size category rating of not less than A- V, according to the current Best's Key Rating Guide or a company of equal financial stability that is approved by the County's Insurance Manager.
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C. Notice of Cancellation
All coverage as required herein shall not be canceled or changed so as to no longer meet the specified County insurance requirements without 30 days' prior written notice of such cancellation or change being delivered to the County of Santa Clara or their designated agent.

D. Insurance Required

1. Commercial General Liability Insurance - for bodily injury (including death) and property damage which provides limits as follows:
a. Each occurrence
b. General aggregate -
$1,000,000
$2,000,000
c. Products/Completed Operations aggregate - $2,000,000 d. Personal Injury $1,000,000

2. General liability coverage shall include:

3. a. Premises and Operations
b. Products/Completed
c. Personal Injury liability
d. Severability of interest
General liability coverage shall include the following endorsement, a copy of which shall be provided to the County:

Additional Insured Endorsement, which shall read:
"County of Santa Clara, and members of the Board of Supervisors of the County of Santa Clara, and the officers, agents, and employees of the County of Santa Clara, individually and collectively, as additional insureds."
Insurance afforded by the additional insured endorsement shall apply as primary insurance, and other insurance maintained by the County of Santa Clara, its officers, agents, and employees shall be excess only and not contributing with insurance provided under this policy. Public Entities may also be added to the Agreement for Countywide Household
Hazardous Waste Collection Program

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DocuSign Envelope ID: D381DA68-A1BC-4CC9-A730-40DA9E44CE78 EXHIBIT B-2D (revised)
additional insured endorsement as applicable and the contractor shall be notified by the contracting department of these requirements.

4. Automobile Liability Insurance
For bodily injury (including death) and property damage which provides total limits of not less than one million dollars ($1,000,000) combined single limit per occurrence applicable to all owned, non-owned and hired vehicles. Coverage shall include Environmental Impairment Liability Endorsement MCS90 for contracts requiring the transportation of hazardous materials/wastes. 4a. Aircraft/Watercraft Liability Insurance (Required if Contractor or any of its agents or subcontractors will operate aircraft or watercraft in the scope of the Agreement)

5. 6.

For bodily injury (including death) and property damage which provides total limits of not less than one million dollars ($1,000,000) combined single limit per occurrence applicable to all owned, non-owned and hired aircraft/watercraft.

Workers' Compensation and Employer's Liability Insurance a. Statutory California Workers' Compensation coverage including broad form all-states coverage.
b. Employer's Liability coverage for not less than one million dollars ($1,000,000) per occurrence.

Contractors Pollution Liability Insurance
Coverage shall provide a minimum of not less than five million dollars ($5,000,000) per occurrence and aggregate for bodily injury, personal mJury, property damage and cleanup costs both on and offsite.

7. Professional Errors and Omissions Liability Insurance (required for contractors providing professional services, such as through a professional engineer, registered geologist, etc.)
a. Coverage shall be in an amount of not less than one million dollars ($1,000,000) per occurrence/aggregate.
b. If coverage contains a deductible or self-retention, it shall not be greater than fifty thousand dollars ($50,000) per occurrence/event.
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8. EXHIBIT B-2D (revised)
c. Coverage as required herein shall be maintained for a minimum of two years following termination or completion of this Agreement.

Claims Made Coverage
If coverage is written on a claims made basis, the Certificate of Insurance shall clearly state so. In addition to coverage requirements above, such policy shall provide that:
a. Policy retroactive date coincides with or precedes the Consultant's start of work (including subsequent policies purchased as renewals or replacements). b. Policy allows for reporting of circumstances or incidents that might give rise to future claims.

E. Special Provisions
The following provisions shall apply to this Agreement:

1. The foregoing requirements as to the types and limits of insurance coverage to be maintained by the Contractor and any approval of said insurance by the County or its insurance consultant( s) are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Contractor pursuant to this Agreement, including but not limited to the provisions concerning indemnification.

2. The County acknowledges that some insurance requirements contained in this Agreement may be fulfilled by self-insurance on the part of the Contractor.

However, this shall not in any way limit liabilities assumed by the Contractor under this Agreement. Any self-insurance shall be approved in writing by the County upon satisfactory evidence of financial capacity. Contractors obligation hereunder may be satisfied in whole or in part by adequately funded self-insurance programs or self-insurance retentions.

3. Should any of the work under this Agreement be sublet, the Contractor shall require each of its subcontractors of any tier to carry the aforementioned coverages, or Contractor may insure subcontractors under its own policies.

4. The County reserves the right to withhold payments to the Contractor in the event of material noncompliance with the insurance requirements outlined above.

F. Fidelity Bonds (Required only if contractor will be receiving advanced funds or payments) Before receiving compensation under this Agreement, Contractor will furnish County with evidence that all officials, employees, and agents handling or having access to funds received or disbursed under this Agreement, or authorized to sign or Agreement for Countywide Household
Hazardous Waste Collection Program

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countersign checks, are covered by a BLANKET FIDELITY BOND in an amount of AT LEAST fifteen percent (15%) of the maximum financial obligation of the County cited herein. If such bond is canceled or reduced, Contractor will notify County immediately, and County may withhold fmiher payment to Contractor until proper coverage has been obtained. Failure to give such notice may be cause for termination of this Agreement, at the option of County. greementfor€ ountywrde-Househel·t1-• -----
Hazardous Waste Collection Program
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SECOND AMENDMENT TO THE AGREEMENT FOR COUNTYWIDE HOUSEHOLD

HAZARDOUS WASTE COLLECTION PROGRAM
The Agreement for Countywide Household Hazardous Waste Collection Program (AGREEMENT) by and between the City of Cupertino (CITY) and the County of Santa Clara (COUNTY) previously entered into on June 17, 2021, and subsequently amended, is hereby further amended as set forth below.

The COUNTY and the CITY agree that:

1. Section 16. ADDITIONAL SERVICES UNDER THIS AGREEMENT is amended in full to read:

16. ADDITIONAL SERVICES UNDER THIS AGREEMENT
CITY must augment funding provided under this Agreement to cover the cost of a minimum participation level of 4% of CITY households; CITY may also elect to augment funding to provide additional services to increase CITY participation beyond the 4% minimum participation level. Additional services shall be made available upon written agreement between the CITY’s authorized representative and the County Executive Officer or designee. Additional services may include, but are not limited to, additional appointments (charged at the Variable Cost Per Car rate), door-to-door HHW collection, used oil filter collection, universal waste collection, electronic waste collection, and abandoned waste collection.

CITY agrees to augment up to an additional $36,963 to the Countywide HHW Program during Fiscal Year 2022 for the purpose of attaining or increasing CITY household participation above the 4% minimum participation level at the scheduled collection dates listed in Attachment C, attached hereto and incorporated herein. Augmentation will be calculated, where applicable, at the Variable Cost Per Car rate. Other services will be charged based on a cost recovery basis. CITY authorizes the COUNTY to use CITY’S Available Discretionary Funding portion of the AB939 HHW Fee, if available, to offset the above agreed additional augmentation amount.

CITY agrees to augment up to an additional $71,217 to the Countywide HHW Program during Fiscal Year 2023 for the purpose of attaining or increasing CITY household participation above the 4% minimum participation level at the scheduled collection dates listed in Attachment C-1, attached hereto and incorporated herein. Augmentation will be calculated, where applicable, at the Variable Cost Per Car rate. Other services will be charged based on a cost recovery basis. CITY authorizes the COUNTY to use CITY’S Available Discretionary Funding portion of the AB939 HHW Fee, if available, to offset the above agreed additional augmentation amount.

CITY agrees to augment up to an additional $__90,705__ to the Countywide HHW Program during Fiscal Year 2024 for the purpose of attaining or increasing CITY household participation above the 4% minimum participation level at the scheduled collection dates listed in Attachment C-2, attached hereto and incorporated herein. Augmentation will be calculated, where applicable, at the Variable Cost Per Car rate. Other services will be charged based on a cost recovery basis. CITY authorizes the COUNTY to use CITY’S Available Attachment C
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Discretionary Funding portion of the AB939 HHW Fee, if available, to offset the above agreed additional augmentation amount.

At the end of each fiscal year, a final annual cost statement shall be prepared by COUNTY and issued to CITY by November 30th. The annual cost statement will take into consideration costs incurred on behalf of CITY for additional services and all payments made by CITY to COUNTY. If any balance is owed to COUNTY, it will be due within 30 days following receipt of the annual cost statement. If any credit is owed to CITY, COUNTY will refund that amount to CITY within 30 days following delivery of the annual cost statement.

2. Attachment C-2 “HHW Schedule For Collection Events for Fiscal Year 2023/2024” attached hereto and incorporated herein by this reference is hereby added to the AGREEMENT.

Except as provided herein, all terms and conditions of the AGREEMENT shall remain in full force and effect.

IN WITNESS WHEREOF, COUNTY and CITY, through their duly authorized representatives, have entered into this First Amendment to the AGREEMENT on the last date shown below:

COUNTY OF SANTA CLARA CITY OF CUPERTINO
Signature: Signature:

Jeffery V. Smith Name:_____________________
County Executive Title:

Date: Date:

APPROVED AS TO FORM AND LEGALITY
Willie Nguyen
Deputy County Counsel
Date:
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ATTACHMENT C-2: HHW SCHEDULE OF PERMANENT & TEMPORARY
COLLECTION EVENTS FOR FISCAL YEAR 2023-2024
2023/Month Day Date Location Type of Event County Holidays/ Notes July Saturday 1 No Event No Event 4th OF JULY WEEK
Thurs,Fri,Sat 6,7,8 San Jose Permanent
Thurs,Fri,Sat 6,7,8 San Martin Permanent
Wed,Thurs,Fri,Sat 12,13,14,15 San Jose Permanent
Saturday 15 Sunnyvale Temporary
Thurs,Fri,Sat 20,21,22 San Jose Permanent
Wed,Thurs,Fri,Sat 26,27,28,29 San Jose Permanent
August Thurs,Fri 3,4 San Jose Permanent
Thurs,Fri,Sat 3,4,5 San Martin Permanent
Saturday 5 Cupertino Temporary
Wed,Thurs,Fri,Sat 9,10,11,12 San Jose Permanent
Thurs,Fri,Sat 17,18,19 San Jose Permanent
Wed,Thurs,Fri,Sat 23,24,25,26 San Jose Permanent
Saturday 26 Mountain View Temporary
Thurs 31 San Jose Permanent
September Fri 1 San Jose Permanent
Saturday 2 No Event No Event LABOR DAY WEEKEND
Wed,Thurs,Fri,Sat 6,7,8,9 San Jose Permanent
Thurs,Fri,Sat 7,8,9 San Martin Permanent
Thurs,Fri,Sat 14,15,16 San Jose Permanent
Wed,Thurs,Fri,Sat 20,21,22,23 San Jose Permanent
Saturday 23 Santa Clara Temporary
Thurs,Fri,Sat 28,29,30 San Jose Permanent
October Wed,Thurs,Fri,Sat 4,5,6,7 San Jose Permanent
Thurs,Fri,Sat 5,6,7 San Martin Permanent
Wed,Thurs,Fri,Sat 11,12,13,14 San Jose Permanent
Saturday 14 Sunnyvale Temporary
Wed,Thurs,Fri,Sat 18,19,20,21 San Jose Permanent
Thurs,Fri,Sat 26,27,28 San Jose Permanent
November Wed,Thurs,Fri,Sat 1,2,3,4 San Jose Permanent
Thurs,Fri, Sat 2,3,4 San Martin Permanent
Thurs 9 San Jose Permanent
Fri 10 No Event No Event VETERANS DAY
Saturday 11 San Jose Permanent
Wed,Thurs,Fri,Sat 15,16,17,18 San Jose Permanent
Tues 21 San Jose Permanent
Wed,Thurs,Fri,Sat 22,23,24,25 No Event No Event THANKSGIVING Thurs 30 San Martin Permanent
Thurs 30 San Jose Permanent
December Fri,Sat 1,2 San Jose Permanent
Fri, Sat 1,2 San Martin Permanent
Wed,Thurs,Fri,Sat 6,7,8,9 San Jose Permanent
Thurs,Fri,Sat 14,15,16 San Jose Permanent
Wed,Thurs,Fri 20,21,22 San Jose Permanent
Sat 23 No Event No Event CHRISTMAS
Thurs,Fri 28,29 San Jose Permanent
Fri 30 No Event No Event NEW YEAR'S
*SUBJECT TO CHANGE
HHW SCHEDULE FOR FISCAL YEAR 2023/2024*
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ATTACHMENT C-2: HHW SCHEDULE OF PERMANENT & TEMPORARY
COLLECTION EVENTS FOR FISCAL YEAR 2023-2024 (Continued) 2024/Month Day Date Location Type of Event County Holidays/ Notes January Wed,Thurs,Fri,Sat 3,4,5,6 San Jose Permanent
Thurs,Fri, Sat 4,5,6 San Martin Permanent
Wed,Thurs,Fri,Sat 10,11,12,13 San Jose Permanent
Saturday 13 Sunnyvale Temporary TBD
Wed,Thurs,Fri,Sat 17,18,19,20 San Jose Permanent
Wed,Thurs,Fri,Sat 24,25,26,27 San Jose Permanent
Saturday 27 Santa Clara Temporary TBD
Wed 31 San Jose Permanent
February Thurs,Fri,Sat 1,2,3 San Jose Permanent
Thurs,Fri, Sat 1,2,3 San Martin Permanent
Thurs,Fri,Sat 8,9,10 San Jose Permanent
Wed,Thurs,Fri,Sat 14,15,16,17 San Jose Permanent
Thurs,Fri,Sat 22,23,24 San Jose Permanent
Wed,Thurs 28,29 San Jose Permanent
Thurs 29 San Martin Permanent
March Fri,Sat 1,2 San Jose Permanent
Fri, Sat 1,2 San Martin Permanent
Thurs,Fri,Sat 7,8,9 San Jose Permanent
Wed,Thurs,Fri,Sat 13,14,15,16 San Jose Permanent
Thurs,Fri,Sat 21,22,23 San Jose Permanent
Wed,Thurs,Fri,Sat 27,28,29 San Jose Permanent
Saturday 30 No Event No Event CESAR CHAVEZ DAY
April Thurs,Fri,Sat 4,5,6 San Jose Permanent
Thurs,Fri, Sat 4,5,6 San Martin Permanent
Wed,Thurs,Fri,Sat 10,11,12,13 San Jose Permanent
Saturday 13 Los Altos Temporary
Wed,Thurs,Fri,Sat 17,18,19,20 San Jose Permanent
Saturday 20 Sunnyvale Temporary TBD
Wed,Thurs,Fri,Sat 24,25,26,27 San Jose Permanent
Saturday 27 Santa Clara Temporary TBD
May Thurs,Fri,Sat 2,3,4 San Jose Permanent
Thurs,Fri, Sat 2,3,4 San Martin Permanent
Wed,Thurs,Fri,Sat 8,9,10,11 San Jose Permanent
Thurs,Fri,Sat 16,17,18 San Jose Permanent
Wed,Thurs,Fri 22,23,24 San Jose Permanent
Saturday 25 No Event No Event MEMORIAL DAY WEEKEND
Thurs,Fri 30,31 San Jose Permanent
June Sat 1 San Jose Permanent
Thurs,Fri,Sat 6,7,8 San Jose Permanent
Thurs,Fri, Sat 6,7,8 San Martin Permanent
Thurs,Fri,Sat 13,14,15 San Jose Permanent
Saturday 15 Milpitas Temporary
Wed,Thurs, Fri,Sat 19,20,21,22 San Jose Permanent
Thurs,Fri,Sat 27,28,29 San Jose Permanent
*SUBJECT TO CHANGE
HHW SCHEDULE FOR FISCAL YEAR 2023/2024 continued*
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CITY OF CUPERTINO
Agenda Item
23-12195 Agenda Date: 5/2/2023
Agenda #: 7.

Subject: Consider a cost-sharing agreement between the City of Santa Clara and the City of Cupertino for the Via on-demand shuttle expansion.

Authorize the City Manager to enter into a cost-sharing agreement between City of Santa Clara and the City of Cupertino for the Via on-demand shuttle expansion.

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CITY COUNCIL STAFF REPORT
Meeting: May 2, 2023
Subject
Consider a cost-sharing agreement between the City of Santa Clara and the City of Cupertino for the Via on-demand shuttle expansion.

Recommended Action
Authorize the City Manager to enter into a cost-sharing agreement between City of Santa Clara and the City of Cupertino for the Via on-demand shuttle expansion.

Reasons for Recommendation
On September 20, 2022, the City Council accepted an $8,465,000 grant from the California State Transportation Agency (CalSTA)Transit and Intercity Rail Program (TIRCP) for the expansion of the Via-Cupertino shuttle into the City of Santa Clara and for the electrification of the Via fleet. The CalSTA grant will reimburse 50% of costs incurred by the cities of Cupertino and Santa Clara. On March 7, the City Council approved a funding allocation for the first year of operations of the project, including all costs for operations within the City of Santa Clara. The March 7 staff report identified, as a next step, that staff would return to Council with a funding agreement with the City of Santa Clara to identify their obligations as a partner in the Via expansion, including a payment schedule to reimburse the City for costs incurred in the City of Santa Clara.

The proposed cost-sharing agreement, in its substantially complete form (Attachment A), details the amounts that the City of Santa Clara will reimburse the City each year during the four-year project. The cost-sharing agreement also includes relevant terms and conditions that govern the collaborative effort. The agreement includes the following not-to-exceed payment amounts, based on modeling of anticipated demand within the City of Santa Clara:
a. FY23-24: $689,547
b. FY24-25: $808,855
c. FY25-26 $864,936
d. FY26-27: $1,643,892
If ridership is lower than expected in any given year, the program costs and corresponding revenues to the City would be lower than shown above. The amounts 110
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listed above are not-to-exceed amounts and should Santa Clara’s payments to the City not reach the levels listed above, the City’s expenditures will not increase. Cupertino expenses are tied to ridership within Cupertino and are not related to Santa Clara ridership.

Cupertino’s contribution to this program is as follows:
a. FY23-24: $932,916
b. FY24-25: $1,094,328
c. FY25-26: $1,170,204
d. FY26-27: $1,260,312
The funding agreement allows either City to terminate their contribution. Like with many grants that are used to fund specific projects, if either City terminates their funding and thus unable to fulfill the purpose of the grant, some or all of the grant funding, along with any costs incurred by Via up to the date of termination, may need to be repaid.

Sustainability Impact
The electrification and expansion of Via-Cupertino will reduce greenhouse gas by providing residents with convenient, sustainable electric vehicle transportation that is local and provides access to regional rail stations. The expanded service will add the Mountain View Caltrain station, which has “Baby Bullet” express rail with service to San Francisco. The expansion also includes Caltrain stations in Santa Clara, resulting in first/last mile connection to four regional rail stations (and a fifth station beginning in year four of the grant.) Enabling long distance commuter rail trips enhances the environmental benefit of the program, which was a key reason the City’s TIRCP application was approved by CalSTA.

Fiscal Impact
Execution of the cost-sharing agreement with the City of Santa Clara will allow for the equitable sharing of payment for contract services between the cities of Santa Clara and Cupertino. The following account has been created to track funds received from the City of Santa Clara, 100-88-265 440-439 (General Fund, Transportation, Via Shuttle – Intergovernmental Government Agency Cost-Share).

California Environmental Quality Act (CEQA)
The project is exempt from CEQA under CEQA Guidelines section 15301 (operation of an existing program), Public Resources Code section 21080.25 (transportation-related projects), and CEQA Guidelines section 15061(b)(3) (“common sense” exemption).

Next Steps
The allocation of the TIRCP grant funding for the Southbay Microtransit Expansion Project, as the Via expansion project is named in the TIRCP grant application, is 111
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scheduled for the June 28, California Transportation Commission meeting. Once the allocation has occurred, funds will be available to the City on a reimbursement basis.

The fleet of electric vehicles is anticipated to begin circulation in early May 2023. The new name of the program is Silicon Valley Hopper, abbreviated as “SV Hopper.” New graphics and branding have been created based on the artwork of Monta Vista High School students.
_____________________________________
Prepared by: Chris Corrao, Senior Transit & Transportation Planner Reviewed by: David Stillman, Transportation Manager
Reviewed by: Chad Mosley, Interim Director of Public Works Reviewed by: Matt Morley, Assistant City Manager
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Silicon Valley Hopper Cost-Share Agreement
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FUNDING AGREEMENT

BETWEEN

CITY OF CUPERTINO
AND

CITY OF SANTA CLARA
FOR

CUPERTINO-SANTA CLARA JOINT ON-DEMAND SHUTTLE SERVICE PROJECT This Funding Agreement (“Agreement”) is entered into by and between the City of Cupertino (“CC”), a municipal corporation and general law city of the State of California and the City of Santa Clara, a municipal corporation and chartered city of the State of California (“CSC”), individually a “Party”, and collectively the “Parties”, as of the latest execution date of any of the Parties (“Effective Date”).

I. RECITALS
A. WHEREAS, in October 2019, CC initiated a pilot program for an on-demand shuttle operated by Nomad Transit, LLC, dba Via (Via) providing on-demand shared rides to residents, visitors and employees within Cupertino, connecting the community to Sunnyvale Caltrain, Rancho San Antonio and Kaiser Santa Clara; and
B. WHEREAS, in March 2022, CC filed an application to the Transit & Intercity Rail Capital Program (TIRCP), a grant program of the California State Transportation Agency (CalSTA), on behalf of CC and CSC to expand Via services into CSC in two phases. In addition to expansion into CSC, the existing fleet of internal combustion engine (ICE) vehicles will be converted to electric vehicles (EV) and El Camino Hospital and Mountain View Transit Center will be added to the service area; and C. WHEREAS, in July 2022, a TIRCP grant of $8,465,000 was awarded to CC to provide Via on-demand service for a period of four years, beginning in May 2023, with an estimated greenhouse gas emission reduction of 76,000 MTCO₂e; and
D. WHEREAS, on September 20, 2022, the Cupertino City Council took action to formalize the pilot program, receive the TIRCP grant, and approved a sole-source procurement with Nomad Transit, LLC to operate the service; and
E. WHEREAS, service will begin in CSC only when this agreement is executed by both parties, when the CSC City Council allocates funding to the project, and when CSC provides a written notice to proceed to CC and Via; and
F. WHEREAS, TIRCP grant funding was awarded to the project based on scoring for the full geographic zone, including both phases of expansion in CSC due to the prevalence of several regional rail stations and a designated SB 535 zone; and
G. WHEREAS, while the CC is the City in contract with Via for the four-year project, and grant funds have been awarded to the CC, a funding agreement between the CSC and CC is necessary to outline the terms and conditions, payment schedule, and other financial details of the four-year joint micro transit project.
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H. WHEREAS, on May 23, 2023, the City Council of CSC will consider authorizing the CSC City Manager to Negotiate, Execute, and Administer an Agreement with CC for the Cupertino-Santa Clara Joint OnDemand Shuttle Service Project.

NOW THEREFORE, for good and valuable consideration, the parties agree as follows:

II. AGREEMENT

1. SCOPE OF WORK
The scope of work as detailed in “Exhibit A” attached and incorporated herein consists of prelaunch planning, coordination on community outreach, interdepartmental coordination, and ongoing operations. The launch in CC is anticipated to begin in May 2023 while the launch in CSC is anticipated to begin in June 2023, with a fleet of 16 EV’s that will be deployed over a period of four years.

CC and CSC, will define, in writing, a decision-making framework for conducting the project as well as roles and responsibilities for each agency regarding specific task requirements.

2. TERM OF AGREEMENT
This Agreement shall become effective upon the Effective Date and will remain in effect through either: (i) CC's full expenditure of CSC Maximum Contribution Amount (as defined in Section 3 below); or (ii) August 30, 2027, whichever is earlier, unless terminated by either Party at any time by giving 90 days written notice from either Party, or unless sooner terminated in accordance with the terms of this Agreement.

3. FINANCIAL CONTRIBUTION TO THE COST OF THE PROJECT
a. CSC’s Financial Contribution. CSC will provide an amount not to exceed $4,004,230 (“CSC Maximum Contribution Amount”) toward the operation of the program on a cost reimbursement basis over the life of the four-year project. CSC’s ability to provide funding is subject to budget availability and City Council appropriation of funds.

The CSC Maximum Contribution Amount shall be provided pursuant to the schedule as follows:
a. FY23-24: $689,547
b. FY24-25: $808,855
c. FY25-26 $864,936
d. FY26-27: $1,643,892
The amounts above are not to exceed amounts, and actual billing may be less, contingent on ridership demand in Santa Clara. CSC is responsible for all funds expended on the Project outside of this Agreement, including but not limited to, staff time dedicated to the project, electricity costs for vehicle charging (if applicable), and any other unforeseen costs not covered by the grant or Via.
b. CC’s Financial Contribution. CC will provide an amount not to exceed $4,457,761 (“CC Maximum Contribution Amount”) toward the operation of the program on a cost reimbursement basis over the life of the four-year project. The CC Maximum Contribution Amount shall be provided pursuant to the schedule as follows:
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a. FY23-24: $932,916
b. FY24-25: $1,094,328
c. FY25-26: $1,170,204
d. FY26-27: $1,260,312
The amounts above are not to exceed amounts, and actual billing may be less, contingent on ridership demand in Cupertino. CC is responsible for all funds expended on the Project outside of this Agreement, including but not limited to, staff time dedicated to the project, electricity costs for vehicle charging (if applicable), and any other unforeseen costs not covered by the grant or Via.

4. CC’s OBLIGATIONS
CC staff will serve as the primary contact for TIRCP grant administration, communication with Caltrans and Via management, etc. Meetings between CC and CSC staff will be established on a bi-weekly basis to ensure CSC specific issues are resolved to the satisfaction of CSC. CSC will be invited to participate in weekly meetings with Via and CC leading up to the launch, and after the launch of the program will continue bi-weekly to discuss program operations, ridership, and any other relevant topics to the grant. CSC staff will be given access to an online portal where routine complaints can be filed, in addition to contact information for Via staff if an urgent matter arises that needs immediate attention.

5. CC INVOICING
a. CC shall submit invoices to CSC on the 10th of every month for reimbursement of the monthly invoice paid by CC for Via services. CC shall include auditable back-up documentation with each invoice, including fare-box discounts, and any applicable fees or taxes. b. Upon the Expiration Date, or date of sooner termination, CC will invoice CSC and CSC will pay its pro-rata share of all remaining unpaid contractor costs for the period where Via service was provided between the date of CSC’s previous payment to date of termination.

6. CSC’s OBLIGATIONS
CSC will remit the amount due to CC under this Agreement within thirty (30) calendar days of CSC’s receipt of a complete and proper, fully documented invoice complying with the requirements set forth herein. CSC shall reimburse CC in arrears for Eligible Costs up to CSC’s Maximum Contribution Amount.

7. INDEMNIFICATION
Neither CSC nor CC, nor any officer or employee thereof shall be responsible for any damage or liability arising out of or relating to each others’ negligence, recklessness, or willful misconduct under or in connection with any work, authority or jurisdiction associated with the CupertinoSanta Clara Joint On-Demand Shuttle Service Project. CC and CSC will fully indemnify and hold each other harmless from any liability imposed for injury (as defined by Government Code §810.8) arising out of or relating to each Parties negligence, recklessness, or willful misconduct under or in connection with any work, authority or jurisdiction under this Agreement.

Additionally, CC will ensure that CC’s contract with Via includes CSC approved indemnification and hold harmless language for the benefit of CSC.
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8. INSURANCE
Via maintains insurance coverage for its services while in operation on public roadways and while serving the public. The insurance requirements imposed by the CC will apply to the larger service zone upon expansion. The policy provides coverage for Commercial General Liability, and Automobile Liability. Each occurrence is covered up to $1,000,000, with $100,000 towards damage to rented premises, $5,000 medical expenses to any one individual, $1,000,000 personal & advanced injury, and $10,000,000 General Aggregate. Automobile Liability includes coverage for up to $1,000,000, combined single limit. CC will cause Via to name CSC as an additional insured for the applicable policies stated above in compliance with the CSC’s insurance requirements for this project as shown in “Exhibit B” attached and incorporated herein.

9. PUBLIC WORKS
If CC awards a contract to a third party for the performance of a public work (as defined in California Labor Code Section 1720 through 1720.6) (a “Public Works Contract”) in connection with this Agreement, CC must comply, and must require such third party to comply, with the requirements of California Labor Code Section 1720 et seq. If the Public Works Contract is funded in whole or in part with federal funds, CC must also comply, and must require such third party to also comply, where applicable, with the requirements of the Davis Bacon Act (40 U.S.C. Sections 3141-3144 and 3146-3148).

10. COMPLIANCE WITH APPLICABLE LAW
In the execution of the Cupertino-Santa Clara Joint On-Demand Shuttle Service Project and performance responsibilities set forth herein, CSC and the CC must comply with all applicable requirements of local, state, and federal laws.

11. TERMINATION
Parties shall have the right to terminate this Agreement without cause. Upon termination, the termination notice must identify the effective date of such termination and must be provided in accordance with the terms and conditions of this Agreement. In the event of termination by either Party prior to August 30, 2027, the Parties agree to be jointly liable for reasonable costs arising from such termination, including but not limited to any costs arising from the TIRCP grant or under the Via contract between CC and Via. As used herein, termination includes the failure of either party to provide the funding set forth in Section 3.

12. AUDIT AND RECORDS
a. All Parties must maintain, and shall require their contractors to maintain, in accordance with generally accepted accounting principles and practices, complete books, accounts, records and data pertaining to services performed under this Agreement, including the costs of contract administration. Such documentation must be supported by properly executed payrolls, invoices, contracts, and vouchers evidencing in detail the nature and propriety of any charges and must be sufficient to allow a proper audit of services. All checks, payrolls, invoices, contracts and other accounting documents pertaining in whole or in part to the services must be clearly identified and readily accessible.
b. For the duration of the Agreement, and for a period of five (5) years after final payment, the Parties and their representatives shall have access during normal business hours to the other Party’s books, accounts, records, data, and other relevant documents that are pertinent to this 116
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Agreement for audits, examinations, excerpts, and transactions and copies thereof must be furnished upon request.

13. AGENCIES REPRESENTATIVES
The City Manager or designee for CSC is hereby made the representative of CSC for all purposes under this Agreement. The City Manager or designee for CC is hereby made the representative of CC for all purposes under this Agreement.

14. NOTICES
Any notice required to be given by either Party, or which either Party may wish to give, must be in writing and served either by personal delivery or sent by certified or registered mail, postage prepaid, addressed as follows:

To CSC: City of Santa Clara
Attention: Michael Liw, Assistant Public Works Director 1500 Warburton Avenue
Santa Clara, CA 95050
To CC: City of Cupertino
Attention: David Stillman, Transportation Manager
10300 Torre Avenue
Cupertino, CA 95014
Notice shall be deemed effective on the date personally delivered or, if mailed, three (3) days after deposit in the United States mail.

15. GENERAL TERMS AND CONDITIONS
a. Headings. The subject headings of the articles and paragraphs in this Agreement are included for convenience only and will not affect the construction or interpretation of any of its provisions.
b. Construction and Interpretation of Agreement. This Agreement, and each of its provisions, terms and conditions, has been reached as a result of negotiations between the Parties.

Accordingly, each Party expressly acknowledges and agrees that: (i) this Agreement will not be deemed to have been authored, prepared, or drafted by any particular Party and (ii) the rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement or in the resolution of disputes. c. Amendment. No alteration or variation of the terms of this Agreement will be valid unless made in writing and signed by both of the Parties hereto, and no oral understanding or agreement not incorporated herein will be binding on any of the Parties hereto. d. Entire Agreement. This Agreement contains the entire understanding between CSC and CC relating to the subject matter hereof. This Agreement supersedes any and all other agreements which may have existed between the Parties, whether oral or written, relating to the subject matter hereof. This Agreement is binding upon each Party, their legal representatives, and successors for the duration of the Agreement. 117
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e. Representation of Authority. Each Party to this Agreement represents and warrants that each person whose signature appears hereon has been duly authorized and has the full authority to execute this Agreement on behalf of the entity that is a party to this Agreement. f. No Waiver. The failure of either Party to insist upon the strict performance of any of the terms, covenants and conditions of this Agreement will not be deemed a waiver of any right or remedy that either Party may have, and will not be deemed a waiver of either Party’s right to require strict performance of all of the terms, covenants, and conditions hereunder. g. Dispute Resolution. If a question or allegation arises regarding (i) interpretation of this Agreement or its performance, or (ii) the alleged failure of a Party to perform, the Party raising the question or making the allegation shall give written notice thereof to the other Party. The Parties shall promptly meet in an effort to resolve the issues raised. If the Parties fail to resolve the issues raised, alternative forms of dispute resolution, including mediation, may be pursued by mutual agreement. It is the intent of the Parties to the greatest extent possible to avoid litigation as a method of dispute resolution. In the event that suit shall be brought by either party hereunder, the parties agree that venue shall be exclusively vested in the state courts of California in the County of Santa Clara or if federal jurisdiction is appropriate, exclusively in the United States District Court in the Northern District of California, San José, California.
h. Severability. If any of the provisions of this Agreement (or portions or applications thereof) are held to be unenforceable or invalid by any court of competent jurisdiction, CSC and CC shall negotiate an equitable adjustment in the provisions this Agreement with a view toward effecting the purpose of this Agreement, and the validity and enforceability of the remaining provisions or portions or applications thereof will not be affected thereby. i. Governing Law. The laws of the State of California will govern this Agreement, as well as any claim that might arise between CC and CSC, without regard to conflict of law provisions. j. Venue. Any lawsuit or legal action arising from this Agreement must be commenced and prosecuted in the courts of Santa Clara County, California. CC agrees to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims.
k. Non-discrimination. The Parties and any contractors performing services on behalf of the Parties (“Contractors”) will not unlawfully discriminate or permit discrimination, harass, or allow harassment against any person or group of persons because of race, color, religious creed, national origin, ancestry, age, sex, gender, gender identity, gender expression, sexual orientation, marital status, pregnancy, childbirth or related conditions, medical condition (including cancer), mental disability, physical disability (including HIV and AIDS), genetic information, or military and veteran’s status, or in any manner prohibited by federal, state, or local laws. In addition, the Parties and Contractors shall not unlawfully deny any of their employees family care leave or discriminate against such employees on the basis of having to use family care leave. The Parties and Contractors must ensure that the evaluation and treatment of their employees and applicants for employment is free of such discrimination and harassment.
l. Relationship of the Parties. It is understood that this is an Agreement by and between independent parties and does not create the relationship of agent, servant, employee, 118
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partnership, joint venture or association, or any other relationship other than that of independent contractor.
m. Execution in Counterparts / Electronic Signature. This Agreement may be executed in any number of counterparts and by each Party in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. Unless otherwise prohibited by law, CSC policy, or CC policy, the Parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term “electronic copy of a signed contract” refers to a writing as set forth in Evidence Code Section 1550. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by each of the Parties.
[remainder of page intentionally left blank]
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WITNESS THE EXECUTION HEREOF the day and year first hereinabove set forth. “CSC” “CC”
City of Santa Clara City of Cupertino
By: By:

Name: Name: Pamela Wu
Office of the City Manager Title: City Manager
City of Santa Clara City of Cupertino
1500 Warburton Avenue 10300 Torre Avenue
Santa Clara, CA 95050 Cupertino, CA 95014
Telephone: (408) 615-2210 Telephone: (408) 777-3200
Fax: (408) 241-6771 Fax: (408) 777-3366
APPROVED AS TO FORM:
“CSC” “CC”
Name: Glen R. Googins Name: Chris Jensen
Title: City Attorney Title: City Attorney
City of Santa Clara City of Cupertino
1500 Warburton Avenue 10300 Torre Avenue
Santa Clara, CA 95050 Cupertino, CA 95014
Telephone: (408) 615-2210 Telephone: (408) 777-3200
Fax: (408) 241-6771 Fax: (408) 777-3366
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CITY OF CUPERTINO
Agenda Item
23-12188 Agenda Date: 5/2/2023
Agenda #: 8.

Subject: Consider approving the use of funds from the Art In-Lieu Fees for the Jollyman AllInclusive Playground (AIPG) Capital Improvement Programs (CIP) project.

1. Approve the use of appropriations of $338,146.86 from the Art In-Lieu Fee in the General Fund, for artwork within the Jollyman AIPG CIP project;

2. Adopt Resolution No. 23-050 (Attachment A) approving budget modification no. 2223-274 increasing appropriations and revenue by $338,146.86 in the Capital Improvement Program Capital Projects Fund and increasing appropriations in the General Fund to transfer out restricted funds for the Jollyman All-Inclusive Playground Project (420-99-051, PVAR 007); and

3. Authorize the City Manager to execute any necessary contract amendments for a contingency of $100,489 for a total contract amount of $490,000 on the professional design services agreement between the City of Cupertino and MIG, Inc. for the Jollyman AIPG Project (Project 2019-15).

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CITY COUNCIL STAFF REPORT
Meeting: May 2, 2023
Subject
Consider approving the use of funds from the Art In-Lieu Fees for the Jollyman AllInclusive Playground (AIPG) Capital Improvement Programs (CIP) project.

Recommended Action

1. Approve the use of appropriations of $338,146.86 from the Art In-Lieu Fee in the General Fund, for artwork within the Jollyman AIPG CIP project;

2. Adopt Resolution No. 23-XXX (Attachment A) approving budget modification no. 2223-274 increasing appropriations and revenue by $338,146.86 in the Capital Improvement Program Capital Projects Fund and increasing apportions in the General Fund to transfer out restricted funds for the Jollyman All-Inclusive Playground Project (budget unit 420-99-051, PVAR 007); and

3. Authorize the City Manager to execute any necessary contract amendments for a contingency of $100,489 for a total contract amount of $490,000 on the professional design services agreement between the City of Cupertino and MIG, Inc. for the Jollyman AIPG Project (Project 2019-15).

Reasons for Recommendation
Per Cupertino Municipal Code (CMC) Section 19.149.020(A), private development projects are required to provide public artwork in any development of 10,000 square feet or more for the construction of new buildings, and/or the expansion of existing buildings. In some instances, the placement of artwork on a particular property may not be feasible. The applicant may then apply to the Arts and Culture Commission for an inlieu alternative if the development lacks an appropriate location for public art. In certain cases, an in-lieu payment of 1.25% of the construction valuation may be made to the City pursuant to the approval authority provisions of CMC Section 19.148.090.

Art and Culture commissioners approved the in-lieu payment for artwork at the “Public Storage” development site on November 22, 2021, at the Art and Culture Commission meeting. As this is the first art in-lieu fee received by the City, no policy has been developed, and the CMC does not provide guidance. Staff recommends that these funds be used for commissioning artwork within the Jollyman Park AIPG CIP project. Staff placed the restricted funds in the General Fund in Fiscal Year (FY) 2022-23 in a 122
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Restricted Fund balance category. Restricted fund balance means that the use of these funds has been restricted by the governing board of the organization. Jollyman AIPG would be a pilot project involving the art in-lieu fee and could serve as a model for future projects. At a future date, a policy and procedural document, which could be based on this project’s successes and lessons-learned, will be developed for ongoing use and application of this fund.

Staff recommends that the art in-lieu funds be applied to the Jollyman AIPG project because the opportunity to apply these funds to this project is limited by the grantdriven schedule. The Jollyman AIPG project must meet the schedule requirements set forth in our grant agreement. If Council prefers to appropriate the funds after a policy can be considered and initiated, the AIPG can continue its current schedule and scope definition without the public art element. Using the developer-paid art in-lieu fee/funding for Jollyman AIPG as a public art consignment is a single effort that produces two returns. First, adding public-facing interactive art on an easily accessible City-owned site enhances a sense of place and discovery. Second, the City can capitalize on construction and site preparation already in place with the established CIP project, which should allow for the art-in-lieu funds to be utilized more effectively than they might if the Jollyman AIPG project were not in place.

If the use of funds from the Art in-lieu Fee for the Jollyman AIPG is approved, it will be used to fund the following interactive art elements as part of the project:
• Decorative sun kaleidoscope feature
• Interactive Musical Bench
• Nature-related art, such as a bird-watching scavenger hunt, viewing binoculars, and colorful peeking windows
• Multilingual Tactile Sign
• Stair Mural
Examples of the art concept options can be seen in Attachment B.

If Council approves the use of the art in-lieu fee/funding, the next steps will include:

1. Project Team/Design consultant develops the artwork concepts and proposal within the context of the AIPG’s design, visual style, and site constraints.

2. Project Team/Design consultant presents the artwork proposal to the Arts and Culture Commission for their review.

3. After Art and Culture Commission approval of the artwork proposal, the Project Team/Design consultant will finalize the designs and proceed with fabrication and installation of the artwork in conjunction with the construction of the Jollyman AIPG. (The art will be included in the City’s ARTour program which catalogs and displays art inventory throughout the City.)

4. Create a policy and procedure document for this fund based on the project’s successes and lessons learned.
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If City Council does not approve the transfer of the art-in-lieu funds to the Jollyman AIPG budget, the funds will stay in the current account, and the fully funded project will move forward without these unique art features. Since the Jollyman AIPG project is on a set schedule to meet grant requirements, the City would need to continue to advance the project without the public art element.

Sustainability Impact
No sustainability impact.

Fiscal Impact
The restricted fund balance category for art in-lieu totals $338,146.86. Staff recommends an appropriation of all the funds to a general fund non-departmental transfer out, and then transferring these funds into the Jollyman Park All-Inclusive Playground budget unit. This will result in a transfer in of revenue to the project. In addition, the project budget will be increased by a corresponding amount.

The Jollyman AIPG Project Budget (budget unit 420-99-051) has $4,532,235. The City has encumbered $554,428 to date, leaving a remaining budget of $3,977,807. The City is a recipient of two grants. The first was $1,448,201 from the AIPG Grant Funds from Santa Clara County. The second was $1,000,000 from the Specified Grant Funds from the State of California. The City has also funded $2,084,034 for the project. The City also received a $25,000 donation from Pacific Gas & Electric. With the approval of the recommended actions, the overall project funding would increase by $338,146.86 for the artwork features.

SOURCE AMOUNT
City funds $2,084,034.00
County of Santa Clara AIPG $1,448,201.00
State Allocation (Specified Grant Funds) $1,000,000.00
PG&E Donation $25,000.00
Art in-lieu Fee $338,146.86
TOTAL $4,895,381.86

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).
_____________________________________
Prepared by: Evelyn Moran, Project Manager
Reviewed by: Chad Mosley, Interim Director of Public Works Reviewed by: Matt Morley, Assistant City Manager
Approved for Submission by: Pamela Wu, City Manager
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Attachments:

A – Draft Resolution
B – Art Concept Options
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Attachment A
RESOLUTION NO. ________

RESOLUTION OF THE CUPERTINO CITY COUNCIL AMENDING THE CAPITAL BUDGET FOR FISCAL YEAR 2022-23 BY APPROPRIATING MONIES 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 and revenue set forth in Exhibit A.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 2nd day of May, 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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Exhibit A
Fund Revenue Expenditure (Use of) Fund
Balance
General Fund 100-90-
001
$0 $338,146.86 ($338,146.86)
Capital Budget Funds
420-99-051
$338,146.86 $338,146.86 $0
Total $338,146.86 $676,293.72 ($338,146.86)
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ALL-INCLUSIVE PLAYGROUND AT JOLLYMAN PARK
Inspiration Images
Description: The kaleidoscope art installation will tower above the play area like a beacon, centered at the top of the slide hill.

Colored glass will cast rainbow reflections below.

Process: Artist commissioned.

KALEIDOSCOPE INSTALLATION AT SLIDE HILL DRAFT ART INSTALLATIONS Attachment B
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ALL-INCLUSIVE PLAYGROUND AT JOLLYMAN PARK
Inspiration Images
Description: Colored plexiglass windows
set into the fence along the elevated
pathway to the slide hill create a rainbow of reflections and chances to peek in on the action below.

Process: Custom design collaboration
between MIG and the wall fabricator.

COLORFUL PEEKING WINDOWS DRAFT ART INSTALLATIONS
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ALL-INCLUSIVE PLAYGROUND AT JOLLYMAN PARK
Inspiration Images
Description: Accessible binoculars offer
a view of the play area from the elevated
path to the slide hill. This feature is one of
several that turn a necessary walkway into
a Path of Discovery that invites play all
along it.

Process: Purchased from a manufacturer.

VIEWING BINOCULARS DRAFT ART INSTALLATIONS
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ALL-INCLUSIVE PLAYGROUND AT JOLLYMAN PARK
Inspiration Images
Description: Interactive musical feature to facilitate a social experience. The MusicBall pictured above can
be programmed with any variety of sounds or music
and is human powered. The bench at upper right
plays music when two people sit and hold hands.

Process: Artist commissioned custom bench or
design collaboration with manufactured equipment.

MUSICAL BENCH DRAFT ART INSTALLATION
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BIRD SCAVENGER HUNT

ALL-INCLUSIVE PLAYGROUND AT JOLLYMAN PARK
Inspiration Images

BIRD SCAVENGER HUNT DRAFT ART INSTALLATION
Description: Life-sized
animal sculptures
hidden throughout
the playground for a
scavenger hunt game.

Process: Artist
commissioned or design
collaboration with
manufacturer.

ALL-INCLUSIVE PLAYGROUND AT JOLLYMAN PARK
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ALL-INCLUSIVE PLAYGROUND AT JOLLYMAN PARK
Inspiration Images
Description: Playground entry
sign for wayfinding and inclusive
play introduction in English,
Simplified Chinese, possibly
Hindi, and English Braille.

Process: Design collaboration
with Lighthouse for the Blind
MADLab (or similar). MIG to
provide graphic and translations,
MADLab to advise and design
tactile features

MULTILINGUAL TACTILE SIGN DRAFT ART INSTALLATIONS
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ALL-INCLUSIVE PLAYGROUND AT JOLLYMAN PARK
Inspiration Images
Description: Stairway mural at steps leading up the slide hill.

Process: Artist commissioned or design collaboration with manufacturer of thermoplastic pavement murals.

ALTERNATE OPTION: STAIR MURAL DRAFT ART INSTALLATIONS
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CITY OF CUPERTINO
Agenda Item
23-12130 Agenda Date: 5/2/2023
Agenda #: 9.

Subject: Consider award of a construction contract for the Service Center Security Gate Project (Project No. 2023-103) for the construction of a new motorized security gate, including associated improvements.

1. Award a construction contract for the Service Center Security Gate Project and authorize the City Manager to execute a contract in the amount of $365,750 with VNH Builders;

2. Authorize the Director of Public Works to execute any necessary change orders up to a construction contingency amount of $36,575 (10%) for a total authorized contract amount of $402,325; and

3. Adopt Resolution No. 23-051 approving budget modification #2223-266 increasing appropriations in the General Fund Service Center Facilities Maintenance Fund (budget unit 100-87-829) by $249,001.

CITY OF CUPERTINO Page 1 of 1 Printed on 4/25/2023
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CITY COUNCIL STAFF REPORT
Meeting: May 2, 2023
Subject
Consider award of a construction contract for the Service Center Security Gate Project (Project No. 2023-103) for the construction of a new motorized security gate, including associated improvements.

Recommended Action

1. Award a construction contract for the Service Center Security Gate Project and authorize the City Manager to execute a contract in the amount of $365,750 with VNH Builders;

2. Authorize the Director of Public Works to execute any necessary change orders up to a construction contingency amount of $36,575 (10%) for a total authorized contract amount of $402,325; and

3. Adopt Resolution No. 23-xxx approving budget modification #2223-266 increasing appropriations in the General Fund Service Center Facilities Maintenance Fund (budget unit 100-87-829) by $249,001.

Reasons for Recommendation
On November 16, 2021, the City Council approved the Public Works Department’s budget request to install a motorized gate at the Service Center, located at 10555 Mary Avenue.

Currently, the existing gate that provides access to the back of the Service Center is manually opened at the beginning of the workday and is manually closed at the end of the workday.

In August 2021, a member of the public walked through the open gate and threatened the safety of a City of Cupertino employee on City property. Although no staff were injured, the Public Works Department recognized the security risk and initiated the Service Center Security Gate Project to limit unauthorized access to the property.

The City contracted with Freyer & Laureta, Inc. on April 6, 2022, to assist in developing the design, specifications, and cost estimate for the project. The scope of work consisted of performing field reconnaissance to understand the existing electrical system and point of connection for the proposed motorized gate. An electrical design was conducted for the gate along with civil design for repaving the driveway. 136
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The proposed improvements will provide security enhancement at the Service Center.

The normally opened gate will be closed but will automatically open when a City vehicle approaches the gate. When exiting the Service Center, the gate will open when the vehicle crosses the in pavement sensor and will automatically close after the vehicle passes through the gate. For delivery vehicles, the system is capable of communicating with Service Center staff. Prior to entering the site, the delivery personnel will need to communicate with staff using the telephone entry system. Staff will be able to communicate with the delivery personnel using live streaming video prior to access being granted into the Service Center.

In addition to the installation of the security gate, the scope of work includes resurfacing a portion of the pavement near the gate entrance as well as repairing areas of failing pavement within the Service Center property. Since some pavement restoration is necessary to facilitate the gate project, additional pavement repairs were incorporated into the project to take advantage of cost savings that would be realized with the mobilization of a pavement contractor. The additional pavement resurfacing is necessary to repair the deteriorated pavement, to prevent further failures, and to remove safety issues associated with the current pavement condition. The existing pavement at the service center has not been resurfaced in more than 25 years.

On February 20, the City advertised the project for bid. A non-mandatory pre-bid meeting was held at the Service Center on March 9, but no contractors attended the meeting. On March 23, the City received three bids for the project which were as follows:

Bidder Total Bid Amount
Golden Bay Fence Plus Iron Works $509,119.00
VNH Builders $365,750.00
JJ Construction and Design, Inc. $325,000.00 – Non-responsive Engineer’s Estimate $320,000.00
After a thorough review of all bid proposals for responsiveness, compliance with bid specifications, and reference checks, the bid received from JJ Construction and Design, Inc. was deemed non-responsive as the bidder did not completely fill out the bidder’s questionnaire nor did they submit the wet-inked original bid bond per City’s specification requirement. In addition, the bidder submitted incorrect totals in the bid schedule.

Staff recommends awarding the contract to VNH Builders of Burlingame, California. The contractor, VNH Builders, is a responsible bidder and submitted the lowest responsive bid in the amount of $365,750 and satisfactorily completed projects for City of San Carlos, City of Brisbane, Santa Clara Unified School District, City of Burlingame, and City of San Jose. Based on their experience and performance, staff has determined that VNH Builders meets the qualifications to perform the work for the Service Center Security Gate Project as specified in the contract documents.
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The authorized contract amount requested for the project construction includes a 10% contingency. Contingency amounts are a typical contracting best practice which is available to be used for any unforeseen conditions that may arise through construction.

Prior to using contingency, staff will determine the validity of the change order and negotiate the cost with the contractor.

The project will also require services from CSG Engineers to provide quality assurance and inspection for the paving work. The firm is one of the City’s on call consultants which provides construction management services. The work includes on-site inspections to ensure the paving is performed per specifications and field and laboratory testing of materials to ensure the contractor is delivering materials (primarily asphalt) in accordance with the contract specifications. This oversight is essential in assuring the City is receiving quality workmanship and materials for the project.

Sustainability Impact
No sustainability impact.

Fiscal Impact
On November 16, 2021, the City Council approved the First Quarter Financial Report for Fiscal Year 2021-22, which included an appropriation of $199,514 for the Service Center Security Gate Project. The existing budget is inadequate to implement the project due to overall increases in the cost of goods and services. An additional appropriation of funds in the amount of $249,001 is being requested in the Public Works Service Center Facilities Maintenance Fund budget unit 100-87-829. The additional appropriations are to be funded by unassigned fund balance in the General Fund The current balance is estimated at $53 million.

California Environmental Quality Act (CEQA)
This project is exempt from the CEQA under 14 C.C.R. Section 15301 (minor alterations to existing facilities).
_____________________________________
Prepared by: Jimmy Tan, Assistant Director of Public Works Reviewed by: Chad Mosley, Interim Director of Public Works Reviewed by: Matt Morley, Assistant City Manager
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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Service Center Security Gate Project
2023-103
2021 Form CONTRACT

Attachment A
Contract
This public works contract (“Contract”) is entered into by and between City of Cupertino (“City”) and VNH Builders (“Contractor”), for work on the Service Center Security Gate 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 March 23, 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; and

2.12 Notice to Proceed.

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

4. Payment. As full and complete compensation for Contractor’s timely performance and completion of the Work in strict accordance with the terms and conditions of the Contract Documents, City will pay Contractor $365,750.00 (“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 120 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 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. 140
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Service Center Security Gate Project
2023-103
2021 Form CONTRACT

Attachment A

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:

Name: City of Cupertino
Address: 10300 Torre Avenue
City/State/Zip: Cupertino, CA 95014
Phone: (408) 777-3354
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Service Center Security Gate Project
2023-103
2021 Form CONTRACT

Attachment A
Attn: Jimmy Tan
Email: [email protected]
Copy to: [email protected]
Contractor:

Name: VNH Builders
Address: 842 Mahler Road
City/State/Zip: Burlingame, CA 94010
Phone: 415-670-0661
Attn: Bruno Vieira
Email: [email protected]
Copy to: Deborah Alves

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. [Signatures are on the following page]
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Service Center Security Gate Project
2023-103
2021 Form CONTRACT

Attachment A
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 GENERAL FUND BUDGET FOR FISCAL YEAR 2022-2023

BY APPROPRIATING MONIES FOR THE SERVICE CENTER SECURITY

GATE 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 2nd day of May 2023, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
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________
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
100 General Fund $0 $249,001.00 $249,001.00
TOTAL $0 $249,001.00 ($249,001.00)
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PUBLIC WORKS DEPARTMENT
10300 TORRE AVENUE
CUPERTINO, CALIFORNIA 95014

PROJECT MANUAL

FOR THE

SERVICE CENTER SECURITY GATE PROJECT
10555 MARY AVENUE
Bid Date:

March 23, 2023 at 2:00pm
Project Number: 2023-103
Attachment C
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PROJECT MANUAL FOR

SERVICE CENTER SECURITY GATE PROJECT
PROJECT NO. 2023-103
REVIEWED BY:
_________________________
Jimmy Tan, P.E.

Assistant Public Works Director - Operations
APPROVED BY:
_________________________
Chad Mosley, P.E.

Interim Director of Public Works
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PROJECT DIRECTORY
Project Name: Service Center Security Gate Project
Project Number: 2023-103
Location: 10555 Mary Avenue., Cupertino, CA 95014
City Representative: City of Cupertino
Jimmy Tan, P.E.

Assistant Director of Public Works - Operations
10555 Mary Avenue
Cupertino, CA 95014
PH: (408) 777-3248
e-mail: [email protected]
Address for Stop Notices: City of Cupertino
Jimmy Tan, P.E.

Assistant Director of Public Works - Operations
10555 Mary Avenue
Cupertino, CA 95014
PH: (408) 777-3248
e-mail: [email protected]
Engineer of Record: Freyer & Laureta, Inc.

Richard J. Laureta, P.E.
150 Executive Park Blvd, Suite 4200
San Francisco, CA 94134
PH: (415) 530-7070
Email: [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).

Richard J. Laureta, P.E.

Freyer & Laureta, Inc.

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i

TABLE OF CONTENTS
SERVICE CENTER SECURITY GATE PROJECT ......................................................................... 1 PROJECT DIRECTORY .............................................................................................................. 3 TABLE OF CONTENTS ............................................................................................................ i Notice Inviting Bids .......................................................................................................................... 1 Instructions to Bidders ..................................................................................................................... 3 Bid Proposal .................................................................................................................................... 9 Bid Schedule.................................................................................................................................. 11 Measurement and Payment........................................................................................................... 12 Subcontractor List.......................................................................................................................... 15 Noncollusion Declaration............................................................................................................... 16 Bid Bond ........................................................................................................................................ 17 Bidder’s Questionnaire .................................................................................................................. 19 Contract ......................................................................................................................................... 22 Payment Bond ............................................................................................................................... 26 Performance Bond......................................................................................................................... 28 General Conditions ........................................................................................................................ 30 Article 1 - Definitions .................................................................................................................. 30 Article 2 - Roles and Responsibilities......................................................................................... 33

2.1 City............................................................................................................................. 33

2.2 Contractor. ................................................................................................................. 34

2.3 Subcontractors........................................................................................................... 36

2.4 Coordination of Work................................................................................................. 37

2.5 Submittals. ................................................................................................................. 38

2.6 Shop Drawings. ......................................................................................................... 38

2.7 Access to Work.......................................................................................................... 39

2.8 Personnel................................................................................................................... 39 Article 3 - Contract Documents .................................................................................................. 39

3.1 Interpretation of Contract Documents........................................................................ 39

3.2 Order of Precedence. ................................................................................................ 40

3.3 Caltrans Standard Specifications .............................................................................. 41

3.4 For Reference Only. .................................................................................................. 41

3.5 Current Versions........................................................................................................ 41

3.6 Conformed Copies..................................................................................................... 42

3.7 Ownership.................................................................................................................. 42 Article 4 - Bonds, Indemnity, and Insurance .............................................................................. 42 151
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4.1 Payment and Performance Bonds............................................................................. 42

4.2 Indemnity. .................................................................................................................. 42

4.3 Insurance ................................................................................................................... 43 Article 5 - Contract Time ............................................................................................................ 45

5.1 Time is of the Essence .............................................................................................. 45

5.2 Schedule Requirements. ........................................................................................... 45

5.3 Delay and Extensions of Contract Time. ................................................................... 47

5.4 Liquidated Damages.................................................................................................. 51 Article 6 - Contract Modification ................................................................................................. 51

6.1 Contract Modification................................................................................................. 51

6.2 Contractor Change Order Requests.......................................................................... 53

6.3 Adjustments to Contract Price. .................................................................................. 54

6.4 Unilateral Change Order............................................................................................ 54

6.5 Non-Compliance Deemed Waiver. ............................................................................ 55 Article 7 - General Construction Provisions ............................................................................... 55

7.1 Permits, Fees, Business License, and Taxes. .......................................................... 55

7.2 Temporary Facilities. ................................................................................................. 55

7.3 Noninterference and Site Management..................................................................... 55

7.4 Signs.......................................................................................................................... 56

7.5 Project Site and Nearby Property Protections........................................................... 56

7.6 Materials and Equipment........................................................................................... 58

7.7 Substitutions. ............................................................................................................. 58

7.8 Testing and Inspection............................................................................................... 59

7.9 Project Site Conditions and Maintenance.................................................................. 60

7.10 Instructions and Manuals........................................................................................... 62

7.11 As-built Drawings....................................................................................................... 62

7.12 Existing Utilities.......................................................................................................... 62

7.13 Notice of Excavation.................................................................................................. 63

7.14 Trenching and Excavations of Four Feet or More. .................................................... 63

7.15 Trenching of Five Feet or More. ................................................................................ 64

7.16 New Utility Connections............................................................................................. 64

7.17 Lines and Grades. ..................................................................................................... 64

7.18 Historic or Archeological Items. ................................................................................. 64

7.20 Noise Control. ............................................................................................................ 65

7.21 Mined Materials. ........................................................................................................ 65 Article 8 - Payment..................................................................................................................... 65

8.1 Schedule of Values.................................................................................................... 65

8.2 Progress Payments ................................................................................................... 66 152
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8.3 Adjustment of Payment Application........................................................................... 66

8.4 Early Occupancy........................................................................................................ 67

8.5 Retention. .................................................................................................................. 67

8.6 Payment to Subcontractors and Suppliers. ............................................................... 68

8.7 Final Payment............................................................................................................ 68

8.8 Release of Claims...................................................................................................... 68

8.9 Warranty of Title. ....................................................................................................... 69 Article 9 - Labor Provisions ........................................................................................................ 69

9.1 Discrimination Prohibited........................................................................................... 69

9.2 Labor Code Requirements. ....................................................................................... 69

9.3 Prevailing Wages....................................................................................................... 69

9.4 Payroll Records. ........................................................................................................ 70

9.5 Labor Compliance...................................................................................................... 70 Article 10 - Safety Provisions ..................................................................................................... 70

10.1 Safety Precautions and Programs............................................................................. 70

10.2 Hazardous Materials.................................................................................................. 71

10.3 Material Safety........................................................................................................... 71

10.4 Hazardous Condition. ................................................................................................ 71

10.5 Emergencies.............................................................................................................. 72 Article 11 - Completion and Warranty Provisions ...................................................................... 72

11.1 Final Completion........................................................................................................ 72

11.2 Warranty. ................................................................................................................... 73

11.3 Use Prior to Final Completion.................................................................................... 74

11.4 Substantial Completion.............................................................................................. 74 Article 12 - Dispute Resolution................................................................................................... 74

12.1 Claims........................................................................................................................ 74

12.2 Claims Submission .................................................................................................... 75

12.3 City’s Response......................................................................................................... 77

12.4 Meet and Confer. ....................................................................................................... 77

12.5 Mediation and Government Code Claims.................................................................. 78

12.6 Tort Claims. ............................................................................................................... 78

12.7 Arbitration. ................................................................................................................. 78

12.8 Burden of Proof and Limitations. ............................................................................... 78

12.9 Legal Proceedings..................................................................................................... 78

12.10 Other Disputes....................................................................................................... 79 Article 13 - Suspension and Termination ................................................................................... 79

13.1 Suspension for Cause. .............................................................................................. 79

13.2 Suspension for Convenience..................................................................................... 79 153
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iv

13.3 Termination for Default. ............................................................................................. 80

13.4 Termination for Convenience. ................................................................................... 81

13.5 Actions Upon Termination for Default or Convenience. ............................................ 82 Article 14 - Miscellaneous Provisions ........................................................................................ 83

14.1 Assignment of Unfair Business Practice Claims. ...................................................... 83

14.2 Provisions Deemed Inserted. .................................................................................... 83

14.3 Waiver........................................................................................................................ 83

14.4 Titles, Headings, and Groupings. .............................................................................. 83

14.5 Statutory and Regulatory References. ...................................................................... 83

14.6 Survival. ..................................................................................................................... 83 Special Conditions ..................................................................................................................... 84

1. Authorized Work Days and Hours. ................................................................................ 84

6. Close Out Requirements. .............................................................................................. 86

7. NOT USED .................................................................................................................... 87

8. Lines and Grades Verification ....................................................................................... 87

9. Notification of Residents, Schools and Businesses. ..................................................... 87 SAMPLE NOTICE: ................................................................................................................. 88 TECHNICAL SPECIFICATIONS………………………………………………………………..………89

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Service Center Security Gate Project 2021 Form NOTICE INVITING BIDS 2023-103 Page 1
Notice Inviting Bids

1. Bid Submission. City of Cupertino (“City”) will accept electronically submitted bids for its Service Center Security Gate Project (“Project”), by or before Thursday, March 23, 2023 at 2:00pm, at https://apps.cupertino.org/bidmanagement/index.aspx, 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 10555 Mary Avenue, Cupertino, CA 95014 and is described as follows: Installation of a new Service Center motorized gate, power and communications to the gate, demolition and removal of existing gate, and repaving of the Service Center driveway and smaller areas within the Service Center yard.

2.2 Time for Final Completion. The Project must be fully completed within 120 calendar days from the start date set forth in the Notice to Proceed. City anticipates that the Work will begin on or about June 1, 2023, but the anticipated start date is provided solely for convenience and is neither certain nor binding.

2.3 Estimated Cost. The estimated construction cost is $320,000

3. License and Registration Requirements.

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

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”) are available in electronic form only from City’s website located at: https://apps.cupertino.org/bidmanagement/index.aspx.

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 155
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Service Center Security Gate Project 2021 Form NOTICE INVITING BIDS 2023-103 Page 2
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 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. Non-Mandatory Bidders’ Conference. A non-mandatory bidders’ conference will be held on Thursday, March 9, 2023 at 10:00 a.m. to 11:30 a.m., at the following location: start at the lobby of the Service Center Building, 10555 Mary Avenue, Cupertino, CA to acquaint all prospective bidders with the Contract Documents and the Worksite.

11. 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: ________________

Kristen Squarcia, City Clerk

Publication Date: <___________________>

END OF NOTICE INVITING BIDS
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Service Center Security Gate Project 2021 Form INSTRUCTIONS TO BIDDERS 2023-103 Page 3

Instructions to Bidders

Each Bid Proposal submitted to the City of Cupertino (“City”) for its Service Center Security Gate 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, hand delivered, 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 157
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Service Center Security Gate Project 2021 Form INSTRUCTIONS TO BIDDERS 2023-103 Page 4

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 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. 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.

5.1 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 158
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Service Center Security Gate Project 2021 Form INSTRUCTIONS TO BIDDERS 2023-103 Page 5

prevent a bidder from requesting to withdraw its bid for material error under Public Contract Code § 5100 et seq.

5.2 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.

6. Subcontractor Work Limits. The prime contractor must perform at least 50% 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 50% self-performance requirement. The remaining Work may be performed by qualified Subcontractor(s).

7. 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.

8. Pre-Bid Investigation.

8.1 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.

8.2 Document Review. Each bidder is responsible for review of the Contract Documents and any informational documents provided “For Reference Only,” e.g., 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.

8.3 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 159
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Service Center Security Gate Project 2021 Form INSTRUCTIONS TO BIDDERS 2023-103 Page 6

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.

8.4 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.

9. 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.

10. 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 Jimmy Tan, 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.

11. 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. cupertino.org/our-city/departments/public-works/city-construction-projectscapital-improvement-projects.

12. 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). 160
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Service Center Security Gate Project 2021 Form INSTRUCTIONS TO BIDDERS 2023-103 Page 7

13. Bid Protest. Any bid protest against another bidder must be submitted in writing and received by City at 10555 Mary Avenue., Cupertino, CA 95014, Attn: Jimmy Tan 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:

13.1 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).

13.2 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.

13.3 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.

13.4 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.

13.5 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.

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Service Center Security Gate Project 2021 Form INSTRUCTIONS TO BIDDERS 2023-103 Page 8

13.6 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 of any right to further pursue a bid protest, including filing a Government Code Claim or initiation of legal proceedings.

13.7 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.

14. 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.

15. 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.

16. 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 30 days following City’s issuance of the Notice of Potential Award. Subcontractors must also obtain a City business license before performing any Work.

17. 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.

18. 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.

END OF INSTRUCTIONS TO BIDDERS

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Service Center Security Gate Project 2021 Form BID PROPOSAL 2023-103 Page 9

Bid Proposal
Service Center Security Gate 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. 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 _____________

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

3.1 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.

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

3.3 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.

3.4 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.

3.5 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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3.6 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.

4. 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:

4.1 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;

4.2 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

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

5. 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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Service Center Security Gate Project 2021 Form BID SCHEDULE 2023-103 Page 11
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
1 Mobilization and Demobilization 1 LS $ $
2 Traffic Control and General Safety Measures 1 LS $ $
3 Storm Water Pollution and Dust Control 1 LS $ $
4 Site Demolition 1 LS $ $
5 Four – 1” Conduit Section (Directional
Drilling) 145 LF $ $
6 Four – 1” Conduit Section (Open Trench) 55 LF $ $
7 Three – 1” Conduit Section (Open Trench) 50 LF $ $
8 Two – 1” Conduit Section (Open Trench) 30 LF $ $
9 Pull Boxes 12 EA $ $
10 AC Pavement 240 TON $ $
11 Class II Aggregate Base 225 TON $ $
12 Security Gate and Side Fencing (Complete in
place, Fully operational) 1 LS $ $
13 Communication and Electrical Wiring 1 LS $ $

TOTAL BASE BID: Items 1 through 13 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.

BIDDER NAME: ________________________________________________________________

END OF BID SCHEDULE
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Service Center Security Gate Project 2021 Form MEASUREMENT AND PAYMENT 2023-103 Page 12
Measurement and Payment
Payment for the various items of the Bid Schedule, as further specified herein, shall include all compensation to be received by the Contractor for furnishing all tools, equipment, supplies, and manufactured articles, and for all labor, operations, and incidentals appurtenant to the items of work being described, as necessary to complete the various items of the Work all in accordance with the requirements of the Contract Documents, including all appurtenances thereto, and including all costs of permits and cost of compliance with the regulations of public agencies having jurisdiction, including Safety and Health Requirements of the California Division of Industrial Safety and the Occupational Safety and Health Administration of the U.S. Department of Labor (OSHA). No separate payment will be made for any item that is not specifically set forth in the Bid Schedule, and all costs therefore shall be included in the prices named in the Bid Schedule for the various appurtenant items of work.

Bid Item 1 Mobilization and Demobilization
The contract lump-sum price paid for Bid Item No. 1, Mobilization and Demobilization, shall include full compensation for furnishing all labor, materials, tools and equipment, tree protection, temporary facilities, movement onto the sites, sanitation facilities, cost of bonds, and insurances for both the prime and subcontractors, removal of temporary facilities at the completion of the projects, and all other related mobilization and demobilization costs. Mobilization bid price shall not exceed ten percent (10%) of the total bid.

Payment for this Item 1 shall be made as follows:

A. Fifty percent (50%) of the mobilization bid price, less retention, will be paid on the initial billing, provided that all equipment is on-site and bond insurance fees are paid.

B. Forty percent (40%) of the mobilization bid price, less retention, will be paid on a prorated basis during the remaining life of the contract.

C. Ten percent (10%) of the mobilization bid price, plus any remaining amount left from the prorated payments, less retention, will be paid upon satisfactory completion of punch list items, cleaning up, and removal of all temporary facilities and equipment from the project sites.

Bid Item 2 Traffic Control and General Safety Measures
The contract lump-sum price paid for Bid Item No. 2, Traffic Control and General Safety Measures, shall constitute the full compensation for all labor, materials, tools, and equipment required to provide a safe working environment above ground for both workers and the general public through effective use of traffic control devices, including, but not limited to, preparation of traffic control plans, notices, signs, barricades, delineators, sign relocations, flag holders, as specified in these specifications, and as required by the City.

Contractor must prepare and submit a Traffic Control Plan to the City for review and approval before the beginning of construction. No payment for traffic control will be made until the Contractor has developed and submitted to the City a satisfactory traffic control plan. Contractor shall prepare to keep one lane open at all times where possible, determined at the discretion of the City.

Bid Item 3 Storm Water Pollution and Dust Control
The contract lump sum price paid for Storm Water Pollution and Dust Control shall constitute full compensation for furnishing all labor, equipment, materials, and incidentals for doing all work involved in 166
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Service Center Security Gate Project 2021 Form MEASUREMENT AND PAYMENT 2023-103 Page 13
Storm Water Pollution Prevention Measures and Dust Control, including the maintenance of all storm water pollution prevention and erosion control measures through project completion.

Bid Item 4 Site Demolition
The contract lump-sum price paid for Bid Item No. 4, Site Demolition, shall constitute the full compensation for all labor, materials, tools, and equipment required for demolition and disposal of surplus material including existing gate, pavements, soil, protection of existing facilities; protection of all trees, and no additional compensation shall be allowed therefore.

Bid Item 5 Four – 1” Conduit Section (Directional Drilling) The contract price measured and paid on a per lineal foot basis for Bid Item No. 5, shall constitute the full compensation for furnishing all labor, materials, tools, and equipment to furnish and install the new conduit by horizontal directional drilling including; drilling pilot hole, drilling through natural obstructions, furnishing and installing the new conduit and wire pulls, drilling fluids; connecting the conduit to the pull boxes; protection of trees; avoiding existing utilities; excavation and backfilling of insertion pit, all fittings, off-haul and disposal of all excess material, and all other tasks and costs incidental and necessary to complete the item as specified herein.

Bid Item 6 through 8 Four – 1” Conduit Section, Three – 1” Conduit Section, and Two – 1” Conduit Section (Open Trench)
The contract price measured and paid on a per lineal foot basis for Bid Items No. 6 through 8, shall constitute the full compensation for furnishing all labor, materials, tools, and equipment to furnish and install 1” conduits including, but is not limited to, furnishing and installing new conduit and wire pulls, verifying and confirming location of existing utilities prior to excavation, saw cutting pavement and curb and gutter, protection of trees; trenching, excavation, hand digging and/or vacuum excavating carefully around existing underground utilities, temporary support for utilities crossings, bedding and compaction, restoration of pavement and concrete surfaces, off-haul and disposal of all excess material, and all incidentals, complete in place, as shown on the Plans, as specified in these specifications, and as required by the City.

Bid Item 9 Pull Boxes
The contract price measured and paid on a per each basis for Bid Item No. 9, shall constitute the full compensation for furnishing all labor, materials, tools, and equipment to furnish and install conduit pull boxes, including, but is not limited to, verifying and confirming location of existing utilities prior to excavation, saw cutting pavement and curb and gutter, trenching, excavation, hand digging and/or vacuum excavating carefully around existing underground utilities, temporary support for utilities crossings, preparation of subgrade, placement of bedding and compaction, installing of pull boxes, connecting conduit, backfill and compaction, restoration of pavement and concrete surfaces, off-haul and disposal of all excess material, and all incidentals, complete in place, as shown on the Plans, as specified in these specifications, and as required by the City.

Bid Item 10 AC Pavement
The contract price measured and paid on per ton basis for Bid Item No. 10, shall constitute the full compensation for furnishing all labor, materials, tools, and equipment to furnish and install all paved surfaces including sawcutting, asphalt pavement, placement of AC pavement in a phased manner not to disrupt traffic to and from service center, pavement markings and striping at least to the condition existing prior to the beginning of work or to a better condition or as directed by the City, adjusting to grade all existing utility structure rims, off-haul and disposal of all excess material, and all incidentals, dig out repairs on Service Center grounds as directed by the City, complete in place, as shown on the Plans, as specified in these specifications, and as required by the City. 167
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Service Center Security Gate Project 2021 Form MEASUREMENT AND PAYMENT 2023-103 Page 14
Bid Item 11 Class II Aggregate Base
The contract price measured and paid on per ton basis for Bid Item No. 11, shall constitute the full compensation for furnishing all labor, materials, tools, and equipment to furnish and install Class II aggregate base including furnishing and placement of Class II AB in a phased manner not to disrupt traffic to and from service center compaction of aggregate base and subgrade, complete in place, as shown on the Plans, as specified in these specifications, and as required by the City.

Bid Item 12 Security Gate and Side Fencing
The contract lump-sum price paid for Bid Item No. 12, shall constitute the full compensation for furnishing all labor, materials, tools, and equipment to furnish and install new security gate and side fencing, concrete foundations for new gate and side fencing, motors, gate operator, long range reader/photo beam, call box with light to illuminate area, photo eye, loops, and all incidentals, complete in place, as shown on the Plans, as specified in these specifications, and as required by the City.

Bid Item 13 Communication and Electrical Wiring
The contract lump-sum price paid for Bid Item No. 13, shall constitute the full compensation for furnishing all labor, materials, tools, and equipment to furnish and install new electrical wiring, breakers, communication wires/cables, communication wiring/cable through building to panel, all connections to electrical and communication panels to provide fulling functioning gate and communication, coordination with City staff, and all incidentals, complete in place, as shown on the Plans, as specified in these specifications, and as required by the City to provide a fully functioning motor controlled gate with communications.

END OF MEASUREMENT AND PAYMENT
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Service Center Security Gate Project 2021 Form SUBCONTRACTOR LIST 2023-103 Page 15
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. 169
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Service Center Security Gate Project 2021 Form BID BOND 2023-103 Page 16
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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Service Center Security Gate Project 2021 Form BID BOND 2023-103 Page 17
Bid Bond

________________________________________________________ (“Bidder”) has submitted a bid, dated ___________________________, 20______ (“Bid”), to City of Cupertino (“City”) for work on the Service Center Security Gate 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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Service Center Security Gate Project 2021 Form BID BOND 2023-103 Page 18

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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Service Center Security Gate Project 2021 Form BIDDER’S QUESTIONNAIRE 2023-103 Page 19
Bidder’s Questionnaire

SERVICE CENTER SECURITY GATE 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? 173
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Service Center Security Gate Project 2021 Form BIDDER’S QUESTIONNAIRE 2023-103 Page 20
_____ Yes _____ No

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 Five 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
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Service Center Security Gate Project 2021 Form BIDDER’S QUESTIONNAIRE 2023-103 Page 21

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: ____

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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Service Center Security Gate Project 2021 Form CONTRACT 2023-103 Page 22
Contract

This public works contract (“Contract”) is entered into by and between City of Cupertino (“City”) and _______________________________________ (“Contractor”), for work on the Service Center Security Gate 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; and

2.12 Notice to Proceed.

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

4. Payment. As full and complete compensation for Contractor’s timely performance and completion of the Work in strict accordance with the terms and conditions of the Contract Documents, City will pay Contractor $___________________ (“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 120 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 $2,000 per day for each day of unexcused delay in achieving Final Completion, and such liquidated damages may be deducted from City’s payments due or to become due to Contractor under this Contract. 176
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Service Center Security Gate Project 2021 Form CONTRACT 2023-103 Page 23

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:

Name: City of Cupertino
Address: 10300 Torre Avenue
City/State/Zip: Cupertino, CA 95014
Phone: (408) 777-3354
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Service Center Security Gate Project 2021 Form CONTRACT 2023-103 Page 24
Attn: Jimmy Tan
Email: [email protected]
Copy to: [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. [Signatures are on the following page]
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Service Center Security Gate Project 2021 Form CONTRACT 2023-103 Page 25

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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Service Center Security Gate Project 2021 Form PAYMENT BOND 2023-103 Page 26
Payment Bond

City of Cupertino (“City”) and ________________________ (“Contractor”) have entered into a contract for work on the Service Center Security Gate 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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Service Center Security Gate Project 2021 Form PAYMENT BOND 2023-103 Page 27

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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Service Center Security Gate Project 2021 Form PERFORMANCE BOND 2023-103 Page 28
Performance Bond

City of Cupertino (“City”) and __________________________ (“Contractor”) have entered into a contract for work on the Service Center Security Gate 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:

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Attn: _____________________________________________________ Address: __________________________________________________

PERFORMANCE BOND
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.
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Day means a calendar day unless otherwise specified.

Design Professional means the licensed individual(s) or firm(s) retained by City to provide architectural, engineering, or electrical engineering design services for the Project. If no Design Professional has been retained for this Project, any reference to Design Professional is deemed to refer to the Engineer.

DIR means the California Department of Industrial Relations.

Drawings 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.

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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.

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. Note observance policy if the noted holidays below do not fall on a weekday.

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; 186
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c. Lincoln’s Birthday, February 12;
d. Presidents’ Day, third Monday in February;
e. Memorial Day, last Monday in May;
f. Juneteenth, July 19
g. Independence Day, July 4;
h. Labor Day, first Monday in September;
i. Veterans’ Day, November 11;
j. Thanksgiving Day, as designated by the President;
k. The Day following Thanksgiving Day;
l. Christmas Day, December 25;
m. City Closure, December 24, 26, 27,28,29,30 and 31: and n. 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 187
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meetings. The Design Professional’s interpretation of the Plans or Specifications is final and conclusive.

2.2 Contractor.

(A) General. Contractor must provide all labor, materials, supplies, equipment, services, and incidentals necessary to perform and timely complete the Work in strict accordance with the Contract Documents, and in an economical and efficient manner in the best interests of City, and with minimal inconvenience to the public.

(B) Responsibility for the Work and Risk of Loss. Contractor is responsible for supervising and directing all aspects of the Work to facilitate the efficient and timely completion of the Work. Contractor is solely responsible for and required to exercise full control over the Work, including the construction means, methods, techniques, sequences, procedures, safety precautions and programs, and coordination of all portions of the Work with that of all other contractors and Subcontractors, except to the extent that the Contract Documents provide other specific instructions. Contractor’s responsibilities extend to any plan, method or sequence suggested, but not required by City or specified in the Contract Documents. From the date of commencement of the Work until either the date on which City formally accepts the Project or the effective date of termination of the Contract, whichever is later, Contractor bears all risks of injury or damage to the Work and the materials and equipment delivered to any Worksite, by any cause including fire, earthquake, wind, weather, vandalism or theft.

(C) Project Administration. Contractor must provide sufficient and competent administration, staff, and skilled workforce necessary to perform and timely complete the Work in accordance with the Contract Documents. Before starting the Work, Contractor must designate in writing and provide complete contact information, including telephone numbers and email address, for the officer or employee in Contractor’s organization who is to serve as Contractor’s primary representative for the Project, and who has authority to act on Contractor’s behalf. A Subcontractor may not serve as Contractor’s primary representative.

(D) On-Site Superintendent. Contractor must, at all times during performance of the Work, provide a qualified and competent full-time superintendent acceptable to City, and assistants as necessary, who must be physically present at the Project site while any aspect of the Work is being performed. The superintendent must have full authority to act and communicate on behalf of Contractor, and Contractor will be bound by the superintendent’s communications to City. City’s approval of the superintendent is required before the Work commences. If City is not satisfied with the superintendent’s performance, City may request a qualified replacement of the superintendent. Failure to comply may result in temporary suspension of the Work, at Contractor’s sole expense and with no extension of Contract Time, until an approved 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 188
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communications pertaining to the Project, including oral or written reports, statements, certifications, Change Order requests, or Claims.

(F) Meetings. Contractor, its project manager, superintendent and any primary Subcontractors requested by City, must attend a pre-construction conference, if requested by City, as well as weekly Project progress meetings scheduled with City. If applicable, Contractor may also be required to participate in coordination meetings with other parties relating to other work being performed on or near the Project site or in relation to the Project, including work or activities performed by City, other contractors, or other utility owners.

(G) Construction Records. Contractor will maintain up-to-date, thorough, legible, and dated daily job reports, which document all significant activity on the Project for each day that Work is performed on the Project. The daily report for each day must include the number of workers at the Project site; primary Work activities; major deliveries; problems encountered, including injuries, if any; weather and site conditions; and delays, if any.

Contractor will take date and time-stamped photographs to document general progress of the Project, including site conditions prior to construction activities, before and after photographs at offset trench laterals, existing improvements and utilities, damage and restoration. Contractor will maintain copies of all subcontracts, Project-related correspondence with subcontractors, and records of meetings with Subcontractors. Upon request by the City, Contractor will permit review of and/or provide copies of any of these construction records.

(H) Responsible Party. Contractor is solely responsible to City for the acts or omissions of any Subcontractors, or any other party or parties performing portions of the Work or providing equipment, materials or services for or on behalf of Contractor or the Subcontractors. Upon City’s written request, Contractor must promptly and permanently remove from the Project, at no cost to City, any employee or Subcontractor or employee of a Subcontractor who the Engineer has determined to be incompetent, intemperate or disorderly, or who has failed or refused to perform the Work as required under the Contract Documents.

(I) Correction of Defects. Contractor must promptly correct, at Contractor’s sole expense, any Work that is determined by City to be deficient or defective in any way, including workmanship, materials, parts or equipment. Workmanship, materials, parts or equipment that do not conform to the requirements under the Plans, Specifications and every other Contract Document, as determined by City, will be considered defective and subject to rejection. Contractor must also promptly correct, at Contractor’s sole expense, any Work performed beyond the lines and grades shown on the Plans or established by City, and any Extra Work performed without City’s prior written approval. If Contractor fails to correct or to take reasonable steps toward correcting defective Work within five days following notice from City, or within the time specified in City’s notice to correct, City may 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 189
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Contractor. This paragraph applies to any defective Work performed by Contractor during the one-year warranty period under Section 11.2.

(J) Contractor’s Records. Contractor must maintain all of its records relating to the Project in any form, including paper documents, photos, videos, electronic records, approved samples, and the construction records required pursuant to paragraph (G), above. Project records subject to this provision include complete Project cost records and records relating to preparation of Contractor’s bid, including estimates, take-offs, and price quotes or bids.

(1) Contractor’s cost records must include all supporting documentation, including original receipts, invoices, and payroll records, evidencing its direct costs to perform the Work, including, but not limited to, costs for labor, materials and equipment. Each cost record should include, at a minimum, a description of the expenditure with references to the applicable requirements of the Contract Documents, the amount actually paid, the date of payment, and whether the expenditure is part of the original Contract Price, related to an executed Change Order, or otherwise categorized by Contractor as Extra Work. Contractor’s failure to comply with this provision as to any claimed cost operates as a waiver of any rights to recover the claimed cost.

(2) Contractor must continue to maintain its Project-related records in an organized manner for a period of five years after City’s acceptance of the Project or following Contract termination, whichever occurs first. Subject to prior notice to Contractor, City is entitled to inspect or audit any of Contractor’s Project records relating to the Project or to investigate Contractor’s plant or equipment during Contractor’s normal business hours. The record-keeping requirements set forth in this subsection 2.2(J) will survive expiration or termination of the Contract.

(K) Copies of Project Documents. Contractor and its Subcontractors must keep copies, at the Project site, of all Work-related documents, including the Contract, permit(s), Plans, Specifications, Addenda, Contract amendments, Change Orders, RFIs and RFI responses, Shop Drawings, as-built drawings, schedules, daily records, testing and inspection reports or results, and any related written interpretations. These documents must be available to City for reference at all times during construction of the Project.

2.3 Subcontractors.

(A) General. All Work which is not performed by Contractor with its own forces must be performed by Subcontractors. City reserves the right to approve or reject any and all Subcontractors proposed to perform the Work, for reasons including the subcontractor’s poor reputation, lack of relevant experience, financial instability, and lack of technical ability or adequate trained workforce. Each Subcontractor must obtain a City business license before performing any Work.

(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 190
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the Project, will be assigned to City. Nothing in these Contract Documents creates a contractual relationship between a Subcontractor and City, but City is deemed to be a third-party beneficiary of the contract between Contractor and each Subcontractor.

(C) Termination. If the Contract is terminated, each Subcontractor’s agreement must be assigned by Contractor to City, subject to the prior rights of any surety, but only if and to the extent that City accepts, in writing, the assignment by written notification, and assumes all rights and obligations of Contractor pursuant to each such subcontract agreement.

(D) Substitution of Subcontractor. If Contractor requests substitution of a listed Subcontractor under Public Contract Code § 4107, Contractor is solely responsible for all costs City incurs in responding to the request, including legal fees and costs to conduct a hearing, and any increased subcontract cost to perform the Work that was to be performed by the listed Subcontractor. If City determines that a Subcontractor is unacceptable to City based on the Subcontractor’s failure to satisfactorily perform its Work, or for any of the grounds for substitution listed in Public Contract Code § 4107(a), City may request removal of the Subcontractor from the Project. Upon receipt of a written request from City to remove a Subcontractor pursuant to this paragraph, Contractor will immediately remove the Subcontractor from the Project and, at no further cost to City, will either (1) self-perform the remaining Work to the extent that Contractor is duly licensed and qualified to do so, or (2) substitute a Subcontractor that is acceptable to City, in compliance with Public Contract Code § 4107, as applicable.

2.4 Coordination of Work.

(A) Concurrent Work. City reserves the right to perform, have performed, or permit performance of other work on or adjacent to the Project site while the Work is being performed for the Project. Contractor is responsible for coordinating its Work with other work being performed on or adjacent to the Project site, including by any utility companies or agencies, and must avoid hindering, delaying, or interfering with the work of other contractors, individuals, or entities, and must ensure safe and reasonable site access and use as required or authorized by City. To the full extent permitted by law, Contractor must hold harmless and indemnify City against any and all claims arising from or related to Contractor’s avoidable, negligent, or willful hindrance of, delay to, or interference with the work of any utility company or agency or another contractor or subcontractor.

(B) Coordination. If Contractor’s Work will connect or interface with work performed by others, Contractor is responsible for independently measuring and visually inspecting such work to ensure a correct connection and interface. Contractor is responsible for any failure by Contractor or its Subcontractors to confirm measurements before proceeding with connecting Work. Before proceeding with any portion of the Work affected by the construction or operations of others, Contractor must give the Project Manager prompt written notification of any defects Contractor discovers which will prevent the proper execution of the Work. Failure to give notice of any known or reasonably discoverable defects will be deemed acknowledgement by Contractor that the work of others is not defective and will not prevent the proper execution of the Work. Contractor must also promptly notify City if work performed by others, including work or activities performed by City’s own forces, is operating to hinder, delay, or interfere with Contractor’s timely performance of the Work. City reserves the right to backcharge Contractor for any 191
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additional costs incurred due to Contractor’s failure to comply with the requirements in this Section 2.4.

2.5 Submittals. Unless otherwise specified, Contractor must submit to the Engineer for review and acceptance, all schedules, Shop Drawings, samples, product data, and similar submittals required by the Contract Documents, or upon request by the Engineer.

Unless otherwise specified, all submittals, including Requests for Information, are subject to the general provisions of this Section, as well as specific submittal requirements that may be included elsewhere in the Contract Documents, including the Special Conditions or Specifications. The Engineer may require submission of a submittal schedule at or before a pre-construction conference, as may be specified in the Notice to Proceed.

(A) General. Contractor is responsible for ensuring that its submittals are accurate and conform to the Contract Documents.

(B) Time and Manner of Submission. Contractor must ensure that its submittals are prepared and delivered in a manner consistent with the current City-accepted schedule for the Work and within the applicable time specified in the Contract Documents, or if no time is specified, in such time and sequence so as not to delay the performance of the Work or completion of the Project.

(C) Required Contents. Each submittal must include the Project name and contract number, Contractor’s name and address, the name and address of any Subcontractor or supplier involved with the submittal, the date, and references to applicable Specification section(s) and/or drawing and detail number(s).

(D) Required Corrections. If corrections are required, Contractor must promptly make and submit any required corrections as specified in full conformance with the requirements of this Section, or other requirements that apply to that submittal.

(E) Effect of Review and Acceptance. Review and acceptance of a submittal by City will not relieve Contractor from complying with the requirements of the Contract Documents. Contractor is responsible for any errors in any submittal, and review or acceptance of a submittal by City is not an assumption of risk or liability by City.

(F) Enforcement. Any Work performed or any material furnished, installed, fabricated or used without City’s prior acceptance of a required submittal is performed or provided at Contractor’s risk, and Contractor may be required to bear the costs incident thereto, including the cost of removing and replacing such Work, repairs to other affected portions of the Work or material, and the cost of additional time or services required of City, including costs for the Design Professional, Project Manager, or Inspector.

(G) Excessive RFIs. A RFI will be considered excessive or unnecessary if City determines that the explanation or response to the RFI is clearly and unambiguously discernable from the Contract Documents. City’s costs to review and respond to excessive or unnecessary RFIs may be deducted from payments otherwise due to Contractor.

2.6 Shop Drawings. When Shop Drawings are required by the Specifications or requested by the Engineer, they must be prepared according to best practices at Contractor’s expense. The Shop Drawings must be of a size and scale to clearly show all necessary 192
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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 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.

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(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;
(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;
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(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.

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.

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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.

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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 selfinsured, 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.

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(B) Notice. Each certificate of insurance must state that the coverage afforded by the policy or policies will not be reduced, cancelled or allowed to expire without at least 30 days written notice to City, unless due to non-payment of premiums, in which case ten days written notice must be made to City.

(C) Waiver of Subrogation. Each required policy must include an endorsement providing that the carrier will waive any right of subrogation it may have against City.

(D) Required Endorsements. The CGL policy, automobile liability policy, pollution liability policy, and builder’s risk policy must include the following specific endorsements:

(1) The City, including its Council, officials, officers, employees, agents, volunteers and consultants (collectively, “Additional Insured”) must be named as an additional insured for all liability arising out of the operations by or on behalf of the named insured, and the policy must protect the Additional Insured against any and all liability for personal injury, death or property damage or destruction arising directly or indirectly in the 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 198
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Additional Insureds and waiver of subrogation, but excluding pollution liability or builder’s risk insurance unless otherwise specified in the Special Conditions. A Subcontractor may be eligible for reduced insurance coverage or limits, but only to the extent approved in writing in advance by the City’s Risk Manager. Contractor must confirm that each Subcontractor has complied with these insurance requirements before the Subcontractor is permitted to begin Work on the Project. Upon request by the City, Contractor must provide certificates and endorsements submitted by each Subcontractor to prove compliance with this requirement. The insurance requirements for Subcontractors do not replace or limit the Contractor’s insurance obligations.

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 199
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work of all trades, reflecting anticipated labor or crew hours and equipment loading for the construction activities, and must be sufficiently comprehensive and detailed to enable progress to be monitored on a day-by-day basis. For each activity, the baseline schedule must be dated, provided in the format specified in the Contract Documents or as required by City, and must include, at a minimum, a description of the activity, the start and completion dates of the activity, and the duration of the activity.

(1) Specialized Materials Ordering. Within five calendar days following issuance of the Notice to Proceed, Contractor must order any specialized material or equipment for the Work that is not readily available from material suppliers.

Contractor must also retain documentation of the purchase 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. 200
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(E) Effect of Acceptance. Contractor and its Subcontractors must perform the Work in accordance with the most current City-accepted schedule unless otherwise directed by City. City’s acceptance of a schedule does not operate to extend the time for completion of the Work or any component of the Work, and will not affect City’s right to assess liquidated damages for Contractor’s unexcused delay in completing the Work within the Contract Time.

(F) Posting. Contractor must at all times prominently post a copy of the most current City-accepted progress or recovery schedule in its on-site office.

(G) Reservation of Rights. City reserves the right to direct the sequence in which the Work must be performed or to make changes in the sequence of the Work in order to facilitate the performance of work by City or others, or to facilitate City’s use of its property. The Contract Time or Contract Price may be adjusted to the extent such changes in sequence actually increase or decrease Contractor’s time or cost to perform the Work.

(H) Authorized Working Days and Times. Contractor is limited to working Monday through Friday, excluding holidays, during City’s normal business hours, except as provided in the Special Conditions or as authorized in writing by City. City reserves the right to charge Contractor for additional costs incurred by City due to Work performed on days or during hours not expressly authorized in the Contract Documents, including reimbursement of costs incurred for inspection, testing, and construction management services.

5.3 Delay and Extensions of Contract Time.

(A) Notice of Delay. If Contractor becomes aware of any actual or potential delay affecting the critical path, Contractor must promptly notify the Engineer in writing, regardless of the nature or cause of the delay, so that City has a reasonable opportunity to mitigate or avoid the delay.

(B) Excusable Delay. The Contract Time may be extended if Contractor encounters “Excusable Delay,” which is an unavoidable delay in completing the Work within the Contract Time due to causes completely beyond Contractor’s control, and which Contractor could not have avoided or mitigated through reasonable care, planning, foresight, and diligence, provided that Contractor is otherwise fully performing its obligations under the Contract Documents. Grounds for Excusable Delay may include fire, natural disasters including earthquake or unusually severe weather, acts of terror or vandalism, epidemic, unforeseeable adverse government actions, unforeseeable actions of third parties, encountering unforeseeable hazardous materials, unforeseeable site conditions, or suspension for convenience under Article 13. The Contract Time will not be extended based on circumstances which will not unavoidably delay completing the Work within the Contract Time based on critical path analysis.

(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 201
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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
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;

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(3) Contractor’s failure to provide adequate notification to utility companies or agencies for connections or services necessary for completion of the Work within the Contract Time;

(4) foreseeable conditions which Contractor could have ascertained from reasonably diligent inspection of the Project site or review of the Contract Documents or other information provided or available to Contractor;

(5) Contractor’s failure, refusal, or financial inability to perform the Work within the Contract Time, including insufficient funds to pay its Subcontractors or suppliers;

(6) performance or non-performance by Contractor’s Subcontractors or suppliers;

(7) the time required to respond to excessive RFIs (see Section 2.5(G));

(8) delayed submission of required submittals, or the time required for correction and resubmission of defective submittals;

(9) time required for repair of, re-testing, or re-inspection of defective Work;

(10) enforcement of Laws by City, or outside agencies with jurisdiction over the Work; or

(11) City’s exercise or enforcement of any of its rights or Contractor’s duties pursuant to the Contract Documents, including correction of defective Work, extra inspections or testing due to non-compliance with Contract requirements, safety compliance, environmental compliance, or rejection and return of defective or deficient submittals.

(E) Compensable Delay. Pursuant to Public Contract Code § 7102, in addition to entitlement to an extension of Contract Time, Contractor is entitled to compensation for costs incurred due to delay caused solely by City, when that delay is unreasonable under the circumstances involved and not within the contemplation of the parties (“Compensable Delay”). Contractor is not entitled to an extension of Contract Time or recovery of costs for Compensable Delay that is concurrent with Non-Excusable Delay.

Delay due to causes that are beyond the control of either City or Contractor, including Weather Delay Days, discovery of Historic or Archeological Items pursuant to Section

7.18, or the actions or inactions of third parties or other agencies, is not Compensable Delay, and will only entitle Contractor to an extension of time commensurate with the time lost due to such delay.

(F) Recoverable Costs. Contractor is not entitled to compensation for Excusable Delay unless it is Compensable Delay, as defined above. Contractor is entitled to recover only the actual, direct, reasonable, and substantiated costs (“Recoverable Costs”) for each working day that the Compensable Delay prevents Contractor from proceeding with more than 50% of the critical path Work scheduled for that day, based on the most recent progress schedule accepted by City. Recoverable Costs will not include home office overhead or lost profit.

(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 203
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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.

(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 204
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operate as a waiver of City’s right to assess liquidated damages for NonExcusable Delay.

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

5.4 Liquidated Damages. It is expressly understood that if Final Completion is not achieved within the Contract Time, City will suffer damages from the delay that are difficult to determine and accurately specify. Pursuant to Public Contract Code § 7203, if Contractor fails to achieve Final Completion within the Contract Time, City will charge Contractor in the amount specified in the Contract for each day that Final Completion is delayed beyond the Contract Time, as liquidated damages and not as a penalty. Any waiver of accrued liquidated damages, in whole or in part, is subject to approval of the City Council or its authorized delegee.

(A) Liquidated Damages. Liquidated damages will not be assessed for any Excusable or Compensable Delay, as set forth above.
(B) Milestones. Liquidated damages may also be separately assessed for failure to meet milestones specified elsewhere in the Contract Documents.

(C) Setoff. City is entitled to deduct the amount of liquidated damages assessed against any payments otherwise due to Contractor, including progress payments, Final Payment, or unreleased retention. If there are insufficient Contract funds remaining to cover the full amount of liquidated damages assessed, City is entitled to recover the balance from Contractor or its performance bond surety.

(D) Occupancy or Use. Occupancy or use of the Project in whole or in part prior to Final Completion does not constitute City’s acceptance of the Project and will not operate as a waiver of City’s right to assess liquidated damages for Contractor’s Non-Excusable Delay in achieving Final Completion.

(E) Other Remedies. City’s right to liquidated damages under this Section applies only to damages arising from Contractor’s Non-Excusable Delay or failure to complete the Work within the Contract Time. City retains its right to pursue all other remedies under the Contract for other types of damage, including damage to property or persons, costs or diminution in value from defective materials or workmanship, costs to repair or complete the Work, or other liability caused by Contractor.

Article 6 - Contract Modification

6.1 Contract Modification. Subject to the limited exception set forth in subsection (D) below, any change in the Work or the Contract Documents, including the 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 205
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abridge Contractor’s warranty obligations pursuant to Article 11 or any obligations of Contractor’s bond sureties.

(A) City-Directed Changes. City may direct changes in the scope or sequence of Work or the requirements of the Contract Documents, without invalidating the Contract.

Such changes may include Extra Work as set forth in subsection (C) below, or deletion or modification of portions of the Work. Contractor must promptly comply with City-directed changes in the Work in accordance with the original Contract Documents, even if Contractor and City have not yet reached agreement as to adjustments to the Contract Price or Contract Time for the change in the Work or for the Extra Work. Contractor is not entitled to extra compensation for cost savings resulting from “value engineering” pursuant to Public Contract Code § 7101, except to the extent authorized in advance by City in writing, and subject to any applicable procedural requirements for submitting a proposal for value engineering cost savings.

(B) Disputes. In the event of a dispute over entitlement to or the amount of a change in Contract Time or a change in Contract Price related to a City-directed change in the Work, Contractor must perform the Work as directed and may not delay its Work or cease Work pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work, including the Work in dispute. Likewise, in the event that City and Contractor dispute whether a portion or portions of the Work are already required by the Contract Documents or constitute Extra Work, or otherwise dispute the interpretation of any portion(s) of the Contract Documents, Contractor must perform the Work as directed and may not delay its Work or cease Work pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work, including the Work in dispute, as directed by City. If Contractor refuses to perform the Work in dispute, City may, acting in its sole discretion, elect to delete the Work from the Contract and reduce the Contract Price accordingly, and self-perform the Work or direct that the Work be performed by others. Alternatively, City may elect to terminate the Contract for convenience or for cause. Contractor’s sole recourse for an unresolved dispute related to changes in the Work or performance of any Extra Work is to comply with the dispute resolution provisions set forth in Article 12, below.

(C) Extra Work. City may direct Contractor to perform Extra Work related to the Project. Contractor must promptly perform any Extra Work as directed or authorized by City in accordance with the original Contract Documents, even if Contractor and City have not yet reached agreement on adjustments to the Contract Price or Contract Time for such Extra Work. If Contractor believes it is necessary to perform Extra Work due to changed conditions, Contractor must promptly notify the Engineer in writing, specifically identifying the Extra Work and the reason(s) the Contractor believes it is Extra Work.

This notification requirement does not constitute a Change Order request pursuant to Section 6.2, below. Contractor must maintain detailed daily records that itemize the cost of 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 206
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close of business on the next Working Day is deemed a full and complete waiver for any change in the Contract Price or Contract Time for any Extra Work performed that day.

(D) Minor Changes and RFIs. Minor field changes, including RFI replies from City, that do not affect the Contract Price or Contract Time and that are approved by the Engineer acting within his or her scope of authority, do not require a Change Order. By executing an RFI reply from City, Contractor agrees that it will perform the Work as clarified therein, with no change to the Contract Price or Contract Time. (E) Remedy for Non-Compliance. Contractor’s failure to promptly comply with a City-directed change is deemed a material breach of the Contract, and in addition to all other remedies available to it, City may, at its sole discretion, hire another contractor or use its own forces to complete the disputed Work at Contractor’s sole expense, and may deduct the cost from the Contract Price.

6.2 Contractor Change Order Requests. Contractor must submit a request or proposal for a change in the Work, compensation for Extra Work, or a change in the Contract Price or Contract Time as a written Change Order request or proposal.

(A) Time for Submission. Any request for a change in the Contract Price or the Contract Time must be submitted in writing to the Engineer within ten calendar days of the date that Contractor first encounters the circumstances, information or conditions giving rise to the Change Order request, even if the total amount of the requested change in the Contract Price or impact on the Contract Time is not yet known at that time. If City requests that Contractor propose the terms of a Change Order, unless otherwise specified in City’s request, Contractor must provide the Engineer with a written proposal for the change in the Contract Price or Contract Time within five working days of receiving City’s request, in a form satisfactory to the Engineer. (B) Required Contents. Any Change Order request or proposal submitted by Contractor must include a complete breakdown of actual or estimated costs and credits, and must itemize labor, materials, equipment, taxes, insurance, subcontract amounts, and, if applicable, Extra Work Reports. Any estimated cost must be updated in writing as soon as the actual amount is known.
(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.” 207
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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;

(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.

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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. (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.
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(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.

(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 210
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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, 212
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the substitution request may be submitted any time within 35 days after the date of award of the Contract, or sufficiently in advance of the time needed to avoid delay of the Work, whichever is earlier.

(C) Substantiation. Any available data substantiating the proposed substitute as an equal item or service must be submitted with the written request for substitution.

Contractor’s failure to timely provide all necessary substantiation, including any required test results as soon as they are available, is grounds for rejection of the proposed substitution, without further review.

(D) Burden of Proving Equality. Contractor has the burden of proving the equality of the proposed substitution at Contractor’s sole cost. City has sole discretion to determine whether a proposed substitution is equal, and City’s determination is final.

(E) Approval or Rejection. If the proposed substitution is approved, Contractor is solely responsible for any additional costs or time associated with the substituted item or service. If the proposed substitution is rejected, Contractor must, without delay, install the item or use the service as specified by City.

(F) Contractor’s Obligations. City’s approval of a proposed substitution will not relieve Contractor from any of its obligations under the Contract Documents. In the event Contractor makes an unauthorized substitution, Contractor will be solely responsible for all resulting cost impacts, including the cost of removal and replacement and the impact to other design elements.

7.8 Testing and Inspection.

(A) General. All materials, equipment, and workmanship used in the Work are subject to inspection and testing by City at all times and 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:
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(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.

(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 214
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use the minimum necessary. Contractor must take all necessary steps to keep waste water out of streets, gutters, or storm drains. See Section 7.19, Environmental Control. If City determines that the dust control is not adequate, City may have the work done by others and deduct the cost from the Contract Price. Contractor will immediately remove any excess excavated material from the Project site and any dirt deposited on public streets.

(C) Clean up. Before discontinuing Work in an area, Contractor must clean the area and remove all debris and waste along with the construction equipment, tools, machinery, and surplus materials.
(1) Except as otherwise specified, all excess Project materials, and the materials removed from existing improvements on the Project site with no salvage value or intended reuse by City, will be Contractor’s property.

(2) Hauling trucks and other vehicles leaving the Project site must be cleaned of exterior mud or dirt before traveling on City streets. Materials and loose debris must be delivered and loaded to prevent dropping materials or debris. Contractor must immediately remove spillage from hauling on any publicly traveled way. Streets affected by Work on the Project must be kept clean by street sweeping.

(D) Disposal. Contractor must dispose of all Project debris and waste materials in a safe and legal manner. Contractor may not burn or bury waste materials on the Project site. Contractor will not allow any dirt, refuse, excavated material, surplus concrete or mortar, or any associated washings, to be disposed of onto streets, into manholes or into the storm drain system.

(E) Completion. At the completion of the Work, Contractor must remove from the Project site all of its equipment, tools, surplus materials, waste materials and debris, presenting a clean and neat appearance. Before demobilizing from the Project site, Contractor must ensure that all surfaces are cleaned, sealed, waxed, or finished as applicable, and that all marks, stains, paint splatters, and the like have been properly removed from the completed Work and the surrounding areas. Contractor must ensure that all parts of the construction are properly joined with the previously existing and adjacent improvements and conditions. Contractor must provide all cutting, fitting and patching needed to accomplish that requirement. Contractor must also repair or replace all existing improvements that are damaged or removed during the Work, both on and off the Project site, including curbs, sidewalks, driveways, fences, signs, utilities, street surfaces and structures. Repairs and replacements must be at least equal to the previously existing improvements, and the condition, finish and dimensions must match the previously existing improvements. Contractor must restore to original condition all property or items that are not designated for alteration under the Contract Documents and leave each Worksite clean and ready for occupancy or use by City.

(F) Non-Compliance. If Contractor fails to comply with its maintenance and cleanup obligations or any City clean up order, City may, acting in its sole discretion, elect to suspend the Work until the condition(s) is corrected with no increase in the Contract Time or Contract Price, or undertake appropriate cleanup measures without further notice and the cost will be deducted from any amounts due or to become due to Contractor.

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7.10 Instructions and Manuals. Contractor must provide to City three copies each of all instructions and manuals required by the Contract Documents, unless otherwise specified. These must be complete as to drawings, details, parts lists, performance data, and other information that may be required for City to easily maintain and service the materials and equipment installed for this Project.

(A) Submittal Requirements. All manufacturers’ application or installation instructions must be provided to City at least ten days prior to the first such application.

The instructions and manuals, along with any required guarantees, must be delivered to City for review.

(B) Training. Contractor or its Subcontractors must train City’s personnel in the operation and maintenance of any complex equipment or systems as a condition precedent to Final Completion, if required in the Contract Documents.

7.11 As-built Drawings. Contractor and its Subcontractors must prepare and maintain at the Project site a detailed, complete and accurate as-built set of the Plans which will be used solely for the purpose of recording changes made in any portion of the original Plans in order to create accurate record drawings at the end of the Project.

(A) Duty to Update. The as-built drawings must be updated as changes occur, on a daily basis if necessary. City may withhold the estimated cost for City to have the as-built drawings prepared from payments otherwise due to Contractor, until the as-built drawings are brought up to date to the satisfaction of City. Actual locations to scale must be identified on the as-built drawings for all runs of mechanical and electrical work, including all site utilities installed underground, in walls, floors, or otherwise concealed.

Deviations from the original Plans must be shown in detail. The exact location of all main runs, whether piping, conduit, ductwork or drain lines, must be shown by dimension and elevation. The location of all buried pipelines, appurtenances, or other improvements must be represented by coordinates and by the horizontal distance from visible 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 216
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performance of the Work, Contractor discovers utility facilities not identified by City in the Contract Documents, Contractor must immediately provide written notice to City and the utility. City assumes responsibility for the timely removal, relocation, or protection of existing main or trunkline utility facilities located on the Project site if those utilities are not identified in the Contract Documents. Contractor will be compensated in accordance with the provisions of the Contract Documents for the costs of locating, repairing damage not due to Contractor’s failure to exercise reasonable care, and removing or relocating utility facilities not indicated in the Plans or Specifications with reasonable accuracy, and for equipment on the Project necessarily idled during such work.

Contractor will not be assessed liquidated damages for delay in completion of the Work, to the extent the delay was caused by City’s failure to provide for removal or relocation of the utility facilities.

7.13 Notice of Excavation. Contractor must comply with all applicable requirements in Government Code §§ 4216 through 4216.5, which are incorporated by reference herein.

Government Code § 4216.2 requires that, except in an emergency, Contractor must contact the appropriate regional notification center, or Underground Services Alert, at least two working days, but not more than 14 calendar days, before starting any excavation if the excavation will be conducted in an area that is known, or reasonably should be known, to contain subsurface installations. Contractor may not begin excavation until it has obtained and submitted to Engineer an inquiry identification number from Underground Services Alert.

7.14 Trenching and Excavations of Four Feet or More. As required by Public Contract Code § 7104, if the Work includes digging trenches or other excavations that extend deeper than four feet below the surface, the provisions in this Section apply to the Work and the Project.

(A) Duty to Notify. Contractor must promptly, and before the following conditions are disturbed, provide written notice to City if Contractor finds any of the following conditions:

(1) Material that Contractor believes may be a hazardous waste, as defined in § 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with the provisions of existing Laws;

(2) Subsurface or latent physical conditions at the Project site differing from those indicated by information about the Project site made available to bidders prior to the deadline for submitting bids; or

(3) Unknown physical conditions at the Project site of any unusual nature, materially different from those ordinarily encountered and generally recognized as inherent in work of the character required by the Contract Documents.

(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.

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(C) Disputes. In the event that a dispute arises between City and Contractor regarding any of the conditions specified in subsection (B) above, or the terms of a Change Order issued by City, Contractor will not be excused from completing the Work within the Contract Time, but must proceed with all Work to be performed under the Contract. Contractor will retain any and all rights provided either by the Contract or by Laws which pertain to the resolution of disputes between Contractor and City.

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

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

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

Upon completion, all Work must conform to the lines, elevations, and grades shown in the Plans, including any changes directed by a Change Order.

7.18 Historic or Archeological Items.

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

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7.19 Environmental Control. Contractor must not pollute any drainage course or its tributary inlets with fuels, oils, bitumens, acids, insecticides, herbicides or other harmful materials.

Contractor must prevent the release of any hazardous material or hazardous waste into the soil or groundwater, and prevent the unlawful discharge of pollutants into City’s storm drain system and watercourses as required below. Contractor and its Subcontractors must at all times in the performance of the Work comply with all Laws concerning pollution of waterways.

(A) Stormwater Permit. Contractor must comply with all applicable conditions of the State Water Resources Control Board National Pollutant Discharge Elimination System General Permit for Waste Discharge Requirements for Discharges of Stormwater Runoff Associated with Construction Activity (“Stormwater Permit”).

(B) Contractor’s Obligations. If required for the Work, a copy of the Stormwater Permit is on file in City’s principal administrative offices, and Contractor must comply with it without adjustment of the Contract Price or the Contract Time. Contractor must timely and completely submit required reports and monitoring information required by the conditions of the Stormwater Permit. Contractor also must comply with all other Laws governing discharge of stormwater, including applicable municipal stormwater management programs.

7.20 Noise Control. Contractor must comply with all applicable noise control Laws. Noise control requirements apply to all equipment used for the Work or related to the Work, including trucks, transit mixers or transient equipment that may or may not be owned by Contractor.

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

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.

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(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 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.

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(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 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.

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(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 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.
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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.

(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.

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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 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 224
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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 225
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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 226
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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.

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.

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(G) Emergency Repairs. In cases of emergency where any delay in correcting defective Work could cause harm, loss or damage, City may immediately correct the defects to conform with the Contract Documents at Contractor’s sole expense.

Contractor or its surety must reimburse City for its costs in accordance with subsection (H), below.

(H) Reimbursement. Contractor must reimburse City for its costs to repair under subsections (F) or (G), above, within 30 days following City’s submission of a demand for payment pursuant to this provision. If City is required to initiate legal action to compel Contractor’s compliance with this provision, and City is the prevailing party in such action, Contractor and its surety are solely responsible for all of City’s attorney’s fees and legal costs expended to enforce Contractor’s warranty obligations herein in addition to any and all costs City incurs to correct the defective Work.

11.3 Use Prior to Final Completion. City reserves the right to occupy or make use of the Project, or any portions of the Project, prior to Final Completion if City has determined that the Project or portion of it is in a condition suitable for the proposed occupation or use, and that it is in its best interest to occupy or make use of the Project, or any portions of it, prior to Final Completion. City will notify Contractor in writing of its intent to occupy or make use of the Project or any portions of the Project, pursuant to this provision.

(A) Non-Waiver. Occupation or use of the Project, in whole or in part, prior to Final Completion will not operate as acceptance of the Work or any portion of it, nor will it operate as a waiver of any of City’s rights or Contractor’s duties pursuant to these Contract Documents, and will not affect nor bear on the determination of the time of substantial completion with respect to any statute of repose pertaining to the time for filing an action for construction defect.

(B) City’s Responsibility. City will be responsible for the cost of maintenance and repairs due to normal wear and tear with respect to those portions of the Project that are being occupied or used before Final Completion. The Contract Price or the Contract Time may be adjusted pursuant to the applicable provisions of these Contract Documents if, and only to the extent that, any occupation or use under this Section actually adds to Contractor’s cost or time to complete the Work within the Contract Time.

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

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 228
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rejected or disputed by City, in whole or in part. A Claim may also include that portion of a unilateral Change Order that is disputed by the Contractor.

(B) Limitations. A Claim may only include the portion of a previously rejected demand that remains in dispute between Contractor and City. With the exception of any dispute regarding the amount of money actually paid to Contractor as Final Payment, Contractor is not entitled to submit a Claim demanding a change in the Contract Time or the Contract Price, which has not previously been submitted to City in full compliance with Article 5 and Article 6, and subsequently rejected in whole or in part by City.

(C) Scope of Article. This Article is intended to provide the exclusive procedures for submission and resolution of Claims of any amount and applies in addition to the provisions of Public Contract Code § 9204 and § 20104 et seq., which are incorporated by reference herein.

(D) No Work Delay. Notwithstanding the submission of a Claim or any other dispute between the parties related to the Project or the Contract Documents, Contractor must perform the Work and may not delay or cease Work pending resolution of a Claim or other dispute, but must continue to diligently prosecute the performance and timely completion of the Work, including the Work pertaining to the Claim or other dispute.

(E) Informal Resolution. Contractor will make a good faith effort to informally resolve a dispute before initiating a Claim, preferably by face-to-face meeting between authorized representatives of Contractor and City.

12.2 Claims Submission. The following requirements apply to any Claim subject to this Article:

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

Substantiating documentation such as payroll records, receipts, invoices, or the like, must be submitted in support 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.

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(3) Provide a detailed explanation of each issue in dispute. For multiple issues included within a single Claim or for multiple Claims submitted concurrently, separately number and identify each individual issue or Claim, and include the following for each separate issue or Claim:

a. A succinct statement of the matter in dispute, including Contractor’s position and the basis for that position;

b. Identify and attach all documents that substantiate the Claim, including relevant provisions of the Contract Documents, RFIs, calculations, and schedule analysis (see subsection (A), Substantiation, above);

c. A chronology of relevant events; and

d. Analysis and basis for claimed changes to Contract Price, Contract Time, or any other remedy requested.

(4) Provide a summary of issues and corresponding claimed damages. If, by the time of the Claim submission deadline (below), the precise amount of the requested change in the Contract Price or Contract Time is not yet known, Contractor must provide a good faith estimate, including the basis for that estimate, and must identify the date by which it is anticipated that the Claim will be updated to provide final amounts.

(5) Include the following certification, executed by Contractor’s authorized representative:

“The undersigned Contractor certifies under penalty of perjury that its statements and representations in this Claim submittal are true and correct. Contractor warrants that this Claim submittal is comprehensive and complete as to the matters in dispute, and agrees that any costs, expenses, or delay not included herein are deemed waived.”

(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.

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(3) A Claim disputing the amount of Final Payment must be submitted within 15 days of the effective date of Final Payment, under Section 8.7, Final Payment.

(4) Strict compliance with these Claim submission deadlines is necessary to ensure that any dispute may be mitigated as soon as possible, and to facilitate cost-efficient administration of the Project. Any Claim that is not submitted within the specified deadlines will be deemed waived by Contractor.

12.3 City’s Response. City will respond within 45 days of receipt of the Claim with a written statement identifying which portion(s) of the Claim are disputed, unless the 45-day period is extended by mutual agreement of City and Contractor or as otherwise allowed under Public Contract Code § 9204. However, if City determines that the Claim is not adequately substantiated pursuant to Section 12.2(A), Substantiation, City may first request in writing, within 30 days of receipt of the Claim, any additional documentation supporting the Claim or relating to defenses to the Claim that City may have against the Claim.

(A) Additional Information. If additional information is thereafter required, it may be requested and provided upon mutual agreement of City and Contractor. If Contractor’s Claim is based on estimated amounts, Contractor has a continuing duty to update its Claim as soon as possible with information on actual amounts in order to facilitate prompt and fair resolution of the Claim.

(B) Non-Waiver. Any failure by City to respond within the times specified above will not be construed as acceptance of the Claim, in whole or in part, or as a waiver of any provision of these Contract Documents.

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.
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12.5 Mediation and Government Code Claims.

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

(B) Government Code Claims.

(1) Timely presentation of a Government Code Claim is a condition precedent to filing any legal action based on or arising from the Contract.

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

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

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 232
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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 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 in233 CC 05-02-2023
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progress Work as directed in the suspension notice, and subject to the provisions of Section 13.1(A) and (B), above. If Contractor submits a timely request for a Change Order in compliance with Articles 5 and 6, the Contract Price and the Contract Time will be equitably adjusted by Change Order pursuant to the terms of Articles 5 and 6 to reflect the cost and delay impact occasioned by such suspension for convenience, except to the extent that any such impacts were caused by Contractor’s failure to comply with the Contract Documents or the terms of the suspension notice or notice to resume. However, the Contract Time will only be extended if the suspension causes or will cause unavoidable delay in Final Completion. If Contractor disputes the terms of a Change Order issued for such equitable adjustment due to suspension for convenience, its sole recourse is to comply with the Claim procedures in Article 12.

13.3 Termination for Default. City may declare that Contractor is in default of the Contract for a material breach of or inability to fully, promptly, or satisfactorily perform its obligations under the Contract.

(A) Default. Events giving rise to a declaration of default include Contractor’s refusal or failure to supply sufficient skilled workers, proper materials, or equipment to perform the Work within the Contract Time; Contractor’s refusal or failure to make prompt payment to its employees, Subcontractors, or suppliers or to correct defective Work or damage; Contractor’s failure to comply with Laws, or orders of any public agency with jurisdiction over the Project; evidence of Contractor’s bankruptcy, insolvency, or lack of financial capacity to complete the Work as required within the Contract Time; suspension, revocation, or expiration and nonrenewal of Contractor’s license or DIR registration; dissolution, liquidation, reorganization, or other major change in Contractor’s organization, ownership, structure, or existence as a business entity; unauthorized assignment of Contractor’s rights or duties under the Contract; or any material breach of the Contract requirements.

(B) Notice of Default and Opportunity to Cure. Upon City’s declaration that Contractor is in default due to a material breach of the Contract Documents, if City determines that the default is curable, City will afford Contractor the opportunity to cure the default within ten days of City’s notice of default, or within a period of time reasonably necessary for such cure, including a shorter period of time if applicable.

(C) Termination. If Contractor fails to cure the default or fails to expediently take steps reasonably calculated to cure the default within the time period specified in the notice of default, City may issue written notice to Contractor and its performance bond surety of City’s termination of the Contract for default.

(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.
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(E) Compensation. Within 30 days of receipt of updated as-builts, all warranties, manuals, instructions, or other required documents for Work installed to date, and delivery to City of all equipment and materials for the Project for which Contractor has already been compensated, Contractor will be compensated for the Work satisfactorily performed in compliance with the Contract Documents up to the effective date of the termination pursuant to the terms of Article 8, Payment, subject to City’s rights to withhold or deduct sums from payment otherwise due pursuant to Section 8.3, and excluding any costs Contractor incurs as a result of the termination, including any cancellation or restocking charges or fees due to third parties. If Contractor disputes the amount of compensation determined by City, its sole recourse is to comply with the Claim Procedures in Article 12, by submitting a Claim no later than 30 days following notice from City of the total compensation to be paid by City.

(F) Wrongful Termination. If Contractor disputes the termination, its sole recourse is to comply with the Claim procedures in Article 12. If a court of competent jurisdiction or an arbitrator later determines that the termination for default was wrongful, the termination will be deemed to be a termination for convenience, and Contractor’s damages will be strictly limited to the compensation provided for termination for convenience under Section 13.4, below. Contractor waives any claim for any other damages for wrongful termination including special or consequential damages, lost opportunity costs, or lost profits, and any award of damages is subject to Section 12.8, Burden of Proof and Limitations.

13.4 Termination for Convenience. City reserves the right, acting in its sole discretion, to terminate all or part of the Contract for convenience upon written notice to Contractor.

(A) Compensation to Contractor. In the event of City’s termination for convenience, Contractor waives any claim for damages, including for loss of anticipated profits from the Project. The following will constitute full and fair compensation to Contractor, and Contractor will not be entitled to any additional claim or compensation:

(1) Completed Work. The value of its Work satisfactorily performed as of the date notice of termination is received, based on Contractor’s schedule of values and unpaid costs for items delivered to the Project site that were fabricated for incorporation in the Work;

(2) Demobilization. Demobilization costs specified in the schedule of values, or if 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.

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13.5 Actions Upon Termination for Default or Convenience. The following provisions apply to any termination under this Article, whether for default or convenience, and whether in whole or in part.

(A) General. Upon termination City may immediately enter upon and take possession of the Project and the Work and all tools, equipment, appliances, materials, and supplies procured or fabricated for the Project. Contractor will transfer title to and deliver all completed Work and all Work in progress to City.

(B) Submittals. Unless otherwise specified in the notice of termination, Contractor must immediately submit to City all designs, drawings, as-built drawings, Project records, contracts with vendors and Subcontractors, manufacturer warranties, manuals, and other such submittals or Work-related documents required under the terms of the Contract Documents, including incomplete documents or drafts.

(C) Close Out Requirements. Except as otherwise specified in the notice of termination, Contractor must comply with all of the following:

(1) Immediately stop the Work, except for any Work that must be completed pursuant to the notice of termination and comply with City’s instructions for cessation of labor and securing the Project and any other Worksite(s).

(2) Comply with City’s instructions to protect the completed Work and materials, using best efforts to minimize further costs.

(3) Contractor must not place further orders or enter into new subcontracts for materials, equipment, services or facilities, except as may be necessary to complete any portion of the Work that is not terminated.

(4) As directed in the notice, Contractor must assign to City or cancel existing subcontracts that relate to performance of the terminated Work, subject to any prior rights, if any, of the surety for Contractor’s performance bond, and settle all outstanding liabilities and claims, subject to City’s approval.

(5) As directed in the notice, Contractor must use its best efforts to sell any materials, supplies, or equipment intended solely for the terminated Work in a manner and at market rate prices acceptable to City.

(D) Payment Upon Termination. Upon completion of all termination obligations, as specified herein and in the notice of termination, Contractor will submit its request for Final Payment, including any amounts due following termination pursuant to this Article

13. Payment will be made in accordance to the provisions of Article 8, based on the portion of the Work satisfactorily completed, including the close out requirements, and consistent with the previously submitted 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, 236
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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, 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 not authorized to performing Work on the Project on the following days:

City Observed Holidays
Fall Festival
November 10, 2023 - Veteran’s Day
November 13, 2023 - Diwali

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:
7:30 a.m. to 3:30 p.m. on weekdays.

2. 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:

2.1 Name, 24-hour contact information, and qualifications of the proposed on-site superintendent;

2.2 List of all key Project personnel and their complete contact information, including email addresses and telephone numbers during regular hours and after hours;

2.3 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;

2.4 If required, traffic control plans associated with the staging plans that are signed and stamped by a licensed traffic engineer;

2.5 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;

2.6 Breakdown of lump sum bid items, to be used for determining the value of Work completed for future progress payments to Contractor;

2.7 Schedule with list of Project submittals that require City review, and list of the proposed material suppliers;

2.8 Plan for coordination with affected utility owner(s) and compliance with any related permit requirements;

2.9 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 238
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building faces, canopies, shades and fences, and any other features within the Project area limits;

2.10 If requested by City, Contractor’s cash flow projections; and

2.11 Any other documents specified in the Special Conditions or Notice of Potential Award.

3. 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.

3.1 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.

3.2 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.

4. Normal Weather Delay Days. This provision is intended to supplement the requirements of General Conditions Section 5.2 on Schedule Requirements and Section 5.3 on Delays and Extensions of Contract Time. Based on historic records for the Project location, Contractor’s schedule should assume the following number of normal Weather Delay Days for each month:

Month # Normal Weather
Delay Days
January 6
February 6
March 6
April 3
May 1
June 0
July 0
August 0
September 1
October 2
November 4
December 5

Weather Delay Days which do not occur during a given month based on the number of days allocated for that month (above) do not carry over to another month.

5. Construction Manager Role and Authority. The City may obtain a 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.

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5.1 Communications. Contractor must submit all notices and communications relating to the Work directly to the City in writing, as follows:

Jimmy Tan, P.E.
10555 Mary Avenue
Cupertino, CA 95
PH: (408) 777-3248
Email: [email protected]
With a copy to the Engineer:

Richard J. Laureta, PE
150 Executive Park Blvd, Suite 4200
San Francisco, CA 94134
PH: (415) 530-7070
Email: [email protected]

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.

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. Close Out Requirements. Contractor’s close out requirements include the following, if applicable:

6.1 Contractor must replace, with thermoplastic, any existing striping within and adjacent to the Project site that is damaged during the Work. Partially damaged striping must be replaced in its entirety.

6.2 Contractor must replace any survey monuments that are damaged or removed during the Work, with a Record of Survey filed by a licensed land surveyor as required by California law.

6.3 Before removing any traffic control or street signs on the Project site, Contractor must take photographs showing their original locations. Upon completion of each phase of construction, Contractor must temporarily reset the signs at those locations. Contractor must then replace the signs permanently upon completion of the Work and the cost of their removal and replacement must be included in the Bid Proposal. 240
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6.4 Contractor must maintain any rural mail boxes on the Project site and relocate them to their permanent locations as soon as possible in the course of the Work, to the satisfaction of the affected property owners and the postal service.

7. NOT USED

8. 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.

9. 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 on next page]
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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:
[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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Service Center Security Gate Project TOC TECHNICAL SPECIFICATIONS 2023-103 Page 89

TECHNICAL SPECIFICATIONS
Table of Contents
02 41 00 Demolition
03 30 00 Cast In Place Concrete
26 01 00 General Electrical Requirements
26 10 00 Basic Materials and Methods
31 23 33 Trenching and Backfilling
32 01 91 Tree Protection
32 12 16 Asphalt Paving
32 31 00 Security Fencing and Gates
33 05 23 Horizontal Directional Drilling
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Service Center Security Gate Project DRAWING INDEX
2023-103 Page 90
Drawing Index
CIVIL
C1 Cover Sheet
C2 Demolition Plan
C3 Civil Improvements Plan

ELECTRICAL
E1 Electrical Plan
GATE
AD-1 Inward Swing Gate Plan
AD.E-1 Inward Swing Gate O.S.L.I.
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SECTION 02 41 00 Demolition
PART 1 - GENERAL

1.1 SUMMARY
A. Perform all planning, administration, execution, and cleaning necessary to safely demolish, remove and properly dispose of site features, structural, landscaping, existing gate, and pavement elements designated for removal on the project drawings.

B. Assume ownership of debris and unwanted materials; remove from the site and dispose of legally and in accordance with applicable Federal, State, and local requirements. Sale of removed items or materials onsite shall not be permitted.

C. This Section includes (but is not necessarily limited to):

1. Site preparation as described under Section 1.4 Site Preparation.

2. Demolition of existing concrete and asphalt concrete pavements as indicated on the Drawings

3. Removal of existing above grade and below grade utility piping, structures, and appurtenances as indicated on the Drawings.

4. Repair or replace new and existing improvements damaged during performance of the work.

5. Protection of existing utilities and site features.

6. Field verification of existing utility locations prior to performance of work.

7. All work shall be performed in strict accordance to latest requirements of EPA, OSHA, and other applicable Federal, State, and local requirements.

D. The Contractor is advised that work under this Section may be hazardous. The Contractor is to take all necessary precautions to ensure the safety of workers and property. If hazardous materials are uncovered or suspected, notify the Owner’s Representative immediately.

E. The Contractor shall demolish the AC Pavement area only on Thursdays and Fridays, the days with the least truck traffic.

1.2 SCOPE OF WORK
A. Furnish all labor, materials, equipment and incidentals governed by this section necessary to perform demolition as specified herein and on the Drawings.

1.3 RELATED DOCUMENTS
A. Drawings and general provisions of Contract, including General Conditions.

B. Section 31 23 33 – Trenching and Backfilling.
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C. Section 32 01 91 – Tree Protection

1.4 SITE PREPARATIONS
A. Site preparation shall consist of clearing, grubbing, and related work necessary to prepare the project site for construction operations before beginning site demolition.

B. Demolition activities shall not commence until temporary erosion, sedimentation, and dust control measures are in place. Perform existing irrigation verification prior to commencing work.

C. Demolition of existing concrete shall include concrete removal and disposal.

D. Clearing: Clearing shall consist of removal and disposal of all roots and stumps, tree stumps, and areas where the tree stumps where removed. All roots larger than 1 inch in diameter, to whatever depth is necessary, and matted roots shall be removed from the construction area.

E. Disposal: Dispose of remaining vegetation and debris in a legal manner and in accordance with applicable Federal, State, and local requirements.

F. Shut off power to all light poles and electrical junction boxes identified for removal prior to performing work. Typical lock out/tag out protocols shall be followed.

G. Utility Location: Contractor shall notify Under Ground Service Alert (USA) a minimum of 48 hours before performing intrusive activities. Contractor shall utilize a utility locator to confirm utility locations within the limits of work and pothole to verify utility location. Contractor shall not perform invasive activities until the start time indicated on the USA ticket or two working days (whichever is later) has passed.

1.5 SUBMITTALS
A. Pre Job Submittals: At least four complete copies of the following Pre-Job Submittals shall be provided to the Owner’s Representative, reviewed, and accepted as complete prior to starting any work at the site. The submittals shall be bound as a set, titled, indexed, and include a table of contents.

1. Proposed Methods and Operations: Provide the proposed methods and operations of demolition to Owner’s Representative for review and approval prior to start of work.

Include:
a. Pre-demolition engineering survey of existing structures in accordance with 29 CFR 1926.850.
b. Protections:
1) Submit proposed barrier and protection systems to protect existing adjacent facilities during the work.
2) Submit proposed barrier and protection systems to ensure safe passage of persons and traffic around area of demolition.

2. Quality Control and Quality Assurance Program: Contractor shall submit a comprehensive Quality Control and Quality Assurance Program for the demolition for 246
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the Owner’s Representative review and approval. This program shall include special safety provisions to be implemented during demolition.

3. Photographs: Prepare and submit a photographic record of existing adjacent structures, within the limits of and adjacent to the work area, site improvements, and pavements within the site boundaries, and at approaches to the site boundaries.

4. Submit a site safety plan and excavation dewatering plan.

B. Chain of Custodies for all disposed materials including weigh tickets and disposal documentation from disposal location.

C. Results of Utility Location Survey: Contractor shall submit to Owner’s Representative the results of the utility survey, including a copy of the Underground Service Alert ticket.

D. Condition of Site: Owner assumes no responsibility for actual condition of site to be demolished. Conditions existing at the time of bidding will be maintained by the Owner insofar as practicable.

E. Provide approved borrow soils materials from off-site when sufficient approved soil materials are not available from excavations.

F. Remove protections at completion of work.

1.6 WORKSITE CONDITIONS
A. Heat Stress: Contractor shall be aware of the hazards that may arise from operations performed in extreme heat. It is the Contractor's responsibility and duty to comply with all laws, rules and regulations (including Cal OSHA CCR Title 8 Section 3395 and other applicable Cal OSHA regulations) relating to the control of heat-related injuries.

B. Fire: Contractor shall be aware of the hazards that may arise from fire. It is the Contractor's responsibility and duty to comply with all laws, rules and regulations (including OSHA regulations) relating to fire and fire safety and to utilize non-flammable materials where possible.

C. Confined Spaces: Contractor shall be aware of the hazards that may arise from operations performed within confined spaces. It is the Contractor's responsibility and duty to comply with all laws, rules and regulations (including OSHA regulations) relating to identification, entry, and employee safety and work operations within confined spaces.

D. Lockout/Tagout: Contractor shall be aware of the hazards that may arise from hazardous energy including electrical circuits and the release of stored energy. It is the Contractor's responsibility and duty to comply with all laws, rules and regulations (including OSHA regulations) relating to the control of hazardous energy.

E. Occupancy: The site to be demolished will continue to be used by the owner through completion of the project.
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PART 2 - PRODUCTS
Not Used
PART 3 - EXECUTION

3.1 SITE IMPROVEMENTS
A. Contractor shall remove existing above- and at-grade features, gates, fencing, and pavements as indicated on the Drawings and necessary to facilitate excavation.

B. Contractor shall remove paving section to full depth as indicated on Drawings. Contractor shall neatly saw cut pavements where specified leaving a clean vertical face.

3.2 TRAFFIC
A. Conduct demolition operations and removal of debris in accordance with the requirements shown on the project plans. Demolition/construction activities in the driveway will be limited to the days shown on the project plans to limit disruption to maintenance staff.

B. Do not close or obstruct streets, walks, or other occupied or used facilities without permission from the City and authorities having jurisdiction. Provide alternate routes around closed or obstructed traffic ways as required by governing regulations.

C. Staging of trucks, equipment, and materials shall be within the boundaries of the worksite, coordinated with the City representative.

D. PROTECTIONS

1. Construct barriers and protection systems to ensure safe passage of persons around area of demolition as necessary. Conduct operations to prevent damage to adjacent buildings, structures, and other facilities, and injury to persons.

2. Protect air quality in existing adjacent buildings as necessary by protecting air intakes from dust and exhaust fumes.

3. Protect and maintain benchmarks and survey control points from disturbance during construction.

4. Protect live utilities and new utilities not yet activated and decommission abandoned utilities.

5. Protect existing site improvements including the adjacent landscaping, sidewalks, open space and skate park.

6. Protect environmental sensitive areas that are identified on the Drawings or surrounded by special fencing that has been placed by the City.

E. DAMAGES

1. Promptly repair damages caused to adjacent facilities by demolition operations to the satisfaction of the Owner’s Representative, and at no cost to the Owner.

2. The Owner and the Owner’s Representative shall be notified of any damage to adjacent 248
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facilities.

3. Repair procedures must be approved by the Owner’s Representative.

F. UTILITY SERVICES

1. Maintain existing utilities indicated to remain in service and protect against damage during demolition operations.

2. Do not interrupt existing utilities serving adjacent sites or facilities, except when authorized in writing by the Owner’s Representative. Provide temporary services during interruptions to existing utilities, as acceptable to the Owner’s Representative.

G. POLLUTION CONTROLS

1. Use water sprinkling, temporary enclosures, and other suitable methods to limit atmospheric emissions of dust and dirt to lowest practical level. Comply with governing regulations pertaining to environmental protection.

2. Control use of water so as to avoid creating hazardous or objectionable conditions such as ice, flooding, ponding or pollution.

3. Prevent adjacent structures and improvements from being impacted by dust, dirt and debris caused by demolition operations. Clean adjacent structures and improvements of dust, dirt, and debris caused by demolition operations should they become impacted to the satisfaction of the Owner’s Representative. Return adjacent areas to condition existing prior to start of work.

4. Comply with the Storm Water Pollution Prevention Plan (SWPPP) and the State Water Resources Control Board’s 2009-0009-DWQ Construction General Permit (General Permit).

H. NOISE CONTROL

1. Comply with all Federal, State, and local regulations concerning noise.

2. Provide documentation that noise levels do not exceed Federal, State, and local regulations.

3.3 IF HAZARDOUS MATERIALS ARE ENCOUNTERED
A. If hazardous materials or materials suspected of being hazardous are discovered, stop work and notify the Owner’s Representative immediately.

B. Burning of removed materials is not be permitted.

C. Store debris in suitable covered containers and remove from site when full.

D. Removal: Properly characterize and transport materials and dispose of them off-site in accordance with applicable Federal, State, and local requirements.

END OF SECTION 02 41 00
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Service Center Security Gate Project 03 30 00 Cast-in-Place Concrete 2023-103 Page 96
SECTION 03 30 00 Cast-in-Place Concrete
PART 1 - GENERAL

1.1 SECTION INCLUDES
A. The work in this section includes all the work and materials associated with concrete work.

1.2 REFERENCES
A. American Concrete Institute (ACI):

1. ACI 117 Standard Tolerances for Concrete Construction and Materials

2. ACI 301 Specifications for Structural Concrete for Buildings

3. ACI 318 Building Code Requirements for Structural Concrete

4. ACI 347 Guide to Formwork for Concrete
B. American Society for Testing and Materials (ASTM):

1. ASTM C31 Making and Curing Concrete Test Specimens in the Field

2. ASTM C33 Concrete Aggregates

3. ASTM C39 Compressive Strength of Cylindrical Concrete Specimens

4. ASTM C40 Organic Impurities in Fine Aggregates for Concrete

5. ASTM C94 Ready-Mixed Concrete

6. ASTM C136 Sieve Analysis of Fine and Coarse Aggregates

7. ASTM C142 Clay Lumps and Friable Particles in Aggregates

8. ASTM C143 Slump of Hydraulic-Cement Concrete

9. ASTM C150 Portland Cement

10. ASTM C156 Water Retention by Concrete Curing Materials

11. ASTM C171 Sheet Materials for Curing Concrete

12. ASTM C172 Sampling Freshly Mixed Concrete

13. ASTM C192 Making and Curing Concrete Test Specimens in the Laboratory

14. ASTM C260 Air-Entraining Admixtures for Concrete

15. ASTM C494 Chemical Admixtures for Concrete

16. ASTM C618 Coal Fly Ash and Raw or Calcined Natural Pozzolan for Use as a Mineral Admixture in Portland Cement Concrete

17. ASTM C881 Epoxy-Resin-Base Bonding Systems for Concrete 250
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1.3 SUBMITTALS
A. Product Data:

1. Concrete mix product certification: Submit certified laboratory test results that the mix proportions and materials comply with these Specifications. a. Cementitious materials.
b. Coarse and fine aggregates.
c. Admixtures.
d. Water.
e. Mix designs.

2. Formwork products:
a. Forms, if fabricated off construction site.
b. Form ties orthrough-bolts.
c. Form coatings.

3. Miscellaneous products: Submit technical data including installation instructions, independent laboratory test reports (ICC), and handling and storageinstructions.
a. Curing materials and curing program.
b. Epoxy compounds, including adhesives and grouts
c. Methods and materials for concrete repairs
PART 2 - PRODUCTS

2.1 MATERIALS
A. Concrete: Concrete shall be 6-Sack Portland cement concrete with 1-inch max coarse aggregate, 5-inch maximum slump and 3,500 psi minimum 28-day compressive strength and shall conform to the requirements of Section 90, Portland Cement Concrete, of the Standard Specifications.

B. Reinforcing bars (if shown on plan)

1. General: Deformed bars, ASTM A615, Grade 60.

2. Dowels: All dowels are deformed bars unless shown otherwise on the Drawings.

C. Cementitious Materials:

1. General: Use only one brand of each cementitious material. The color shall not significantly alter the typical grey concretecolor.

2. Portland Cement: ASTM C150, Type II. Comply with the requirements for low alkali cement in ASTM C150 Table 2.
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3. Pozzolan: ASTM C618, Mineral Admixture ClassN.

4. Blended Cement: ASTM C595 Type 1P(MS).

5. Fly ash: ASTM C618, Class F, with the followingrestrictions:
a. Loss on Ignition: 4% maximum
b. SO3 Content: 3% maximum
c. Moisture Content: 1% maximum
D. Concrete Aggregates:

1. General: ASTM C33:
a. Provide free from organic materials, waste products, clay balls, shale, and mica and thoroughly washed before use.
b. Provide aggregate meeting the combined gradation requirements below. For thin sections, such as slabs or walls 10 inches thick or less, or for sections that require special placement due to shape, form or congestion of reinforcing,provide
1-inch maximum size.
c. Provide aggregates that do not deleteriously react with the alkalies in the cement.
d. Grading: ASTM C136. Submit results of sieveanalysis. e. Reactivity: ASTM C289. Submit graphical data showingcompliance.

2. Coarse Aggregates:
a. Provide clean, hard, durable gravel, crushed gravel, crushed rock, or combinations.
b. Deleterious substances: Submit compliance with ASTM C33, Table 3 and asfollows:
1) Clay lumps and friable particles: ASTM C142. Not more than5%. 2) Abrasion: ASTM C131. Not more than 45%.
3) Soundness: ASTM C88. Not more than 10%.
4) Cleanness: Caltrans Test 227. For three tests, not less than 70, with an average greater than 75. Max friable/clay materials in coarse aggregate at 2% for exposed architectural concrete, 3% for liquid retaining concrete structures, and 5% for all other structural concrete.
c. Do not use aggregate containing more than 10% of inferior materials, flat or elongated particles, cracked or laminated rock, or rock than can be readily broken after immersion in water for one hour.

3. Fine Aggregate:
a. Provide natural sand or a combination of natural and manufactured sand, of siliceous, granitic or igneous origin, hard anddurable.
b. Deleterious substances: Submit compliance with ASTM C33 Table 1 and asfollows:
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1) Organic impurities: ASTM C40 and C87. Not less than
95% relative strength by ASTM C87.
2) Sand equivalent: CALTRANS Test 217. For three tests not less than 70, with an average greater than 75.

E. Combined Aggregates: Provide a mixture of fine aggregate and coarse aggregate uniformly graded between the screen sizes specifiedbelow. 253
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Sieve Size
Percentage Passing
NOT USED 1-inch Maximum
2" --
1-1/2" 100
1" 90-100
3/4" 55-100
3/8" 45-75
No. 4 35-60
No. 8 27-45
No. 16 20-35
No. 30 12-25
No. 50 3-15
No. 100 0-5
No. 200 0-2

2.2 WATER
A. Provide water meeting AASHTO T26 for washing aggregates, for mixing concrete, for patching grout and for curing that is free from oil and contains not more than 1,000 parts per million (ppm) of chlorides as Cl, nor more than 1,300 ppm of sulfates as SO4. Do not allow impurities that will cause a change in the setting time of the Portland Cement of more than 25%, nor a reduction in the compressive strength of mortar at 14 days of more than 5%, when compared to the results obtained with distilled water.

B. Do not allow impurities that cause discoloration of the concrete or produce etching of the surface.

C. The Engineer may require tests of the water should there be a question of the quality. Costs of such tests would be borne by the Owner unless the quality does not meet the requirements in Paragraph A above.

2.3 ADMIXTURES
A. Air Entraining: ASTM C260
B. Accelerating: ASTM C494, Type C or E
C. Retarding: ASTM C494, Type D
D. Water Reducing: ASTM C494, Type A
E. High Range Water Reducing: ASTM C494, Types F or G, second or third generation type. Add at the batch plant, after all other ingredients have been mixed and initial slump has been verified.

F. Shrinkage Reducing: ASTM C157. Eclipse by W.R. Grace, Tetraguard AS20 by 254
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Master Builders, or equal.

G. Corrosion Inhibition and Permeability Reduction (Silica Fume): ASTM C1240.

Force 10,000 or 10,000D (dry) by W.R Grace, Rheomac SF 100 (dry) or 110 by Master Builders, or equal.

2.4 EPOXY BONDING SYSTEM
A. For bonding new to pre-existing concrete, provide Sikadur 32 Hi-Mod by Sika Chemical Corporation, Concresive Liquid LPL by Master Builders, or equal.

PART 3 - EXECUTION

3.1 FORMS
A. Contractor shall take responsibility for adequacy of the form and bracing. Satisfy ACI 347. Forms shall be carefully set to alignment and dimensions of the equipment pad. Forms shall be held rigidly in place. Provide tight seams, or seal with tape, to be mortar tight. All forms shall be thoroughly cleaned and coated with form oil to prevent the concrete from adhering to them. Wood forms may, instead, be thoroughly wetted with water before concrete is placed. If inadequate support is provided by the forms, remove all placed concrete and replace, as directed. Chamfers shall be placed at all exposed outside corners.

B. Chamfers: ¾-inch at all exposed outside corners, including the top edges of all walls, machinery bases and curbs. Use mill run chamfer strips surfaced all sides.

3.2 CONCRETE PLACEMENT
A. Before placing concrete, inspect and complete formwork installation, reinforcing steel, and installation of items to be embedded or cast in. No concrete placement shall commence before forms and reinforcing are approved by Inspector.

Compact the concrete with high frequency, internal mechanical vibrating equipment, and when required, supplement by hand spading and tamping.

Consolidate slabs six inches or less in depth by hand tampers, spreading and settling with a heavy leveling straightedge.

3.4 CONCRETE CURING
A. All equipment pads shall be cured by keeping continuously moist for three days after placement either by sprinkling, covering with a waterproof membrane, or applying Type 1 concrete curing compound.
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3.5 CONCRETE REPAIR
A. Inspect all concrete surfaces immediately after carefully removing forms.

Defective work includes concrete out of line, level or plumb; cracks, poor joints, rock pockets, honeycomb, voids, spalls and exposed reinforcing. Patch all minor defects, including form tie holes, before the concrete is thoroughly dry. Do not interrupt the curing program. Ensure that repairs match the existing surface for color and texture. Repair minor defects with cement mortar. Cut out to solid concrete but not to a depth of less than 1 inch.

END OF SECTION 03 30 00
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Service Center Security Gate Project 26 01 00 General Electrical Requirements 2023-103 Page 103
SECTION 26 01 00 General Electrical Requirements
PART 1 - GENERAL

1.1 WORK INCLUDED
A. General: Furnish all labor, materials, apparatus, tools, equipment, transportation, temporary construction and special or occasional services as required to make a complete working electrical installation, as shown on Drawings or described in these specifications.

B. Work Included:

1. Interior, outdoor, and site lighting fixtures, poles, accessories, and controls.

2. Grounding and bonding.

3. Trenching, backfill, compaction, directional boring.

4. Concrete pull boxes and covers.

5. Conduit, raceways and fittings.

6. Patching, sealing and fire stopping.

7. Poured-in-place concrete pole footings.

8. Panels, overcurrent devices, and feeders.

9. Branch circuit wiring for all outlets for lighting, receptacles, devices, and

10. Connections for mechanical and plumbing equipment.

11. Power feeders consisting of conductors and raceways for panels.

12. Testing.

1.2 RELATED WORK
A. Perform the following work, in accordance with appropriate divisions of the specifications cited, where and as necessary to furnish a complete, working security gate installation.

1. 03 30 00 Cast In Place Concrete

2. 26 10 00 Basic Materials and Methods

3. 32 31 00 Security Fencing and Gates

1.3 QUALITY ASSURANCE

A. The following publications or editions of the documents current at the time a project is on-going shall apply:

1. CEC California Electric Code with latest California Amendments. 257
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2. CBC California Building Code with latest California Amendments.

3. California Administrative Code Title 24

4. G.O. 128 rules for underground construction, State of California.

5. California Fire Code

6. National Electrical Code.

7. PG&E Greenbook.

A. Equipment and materials specified under this division shall conform to the following standards where applicable.

1. UL - Underwriters' Laboratories.

2. ASTM - American Society for Testing Materials.

3. ANSI - American National Standard Institute.

1.4 DRAWINGS
A. Layout: General layout shown on the drawings shall be followed except where other work may conflict with the drawings.

B. Accuracy:

1. Drawings for the work under this section are diagrammatic.

2. Contractor shall verify lines, levels and dimensions shown on the drawings and shall be responsible for the accuracy of the setting out of work and for its strict conformance with existing conditions at the site.

1.5 SUBMITTALS
A. Format: Furnish submittal data neatly bound in an 8-1/2" x 11" folder or binder with a table of contents listing in order of specification section and paragraph number.

B. Submittals shall consist of detailed shop drawings, specifications, catalog "cuts" and data sheets containing physical and dimensioned information, performance data, electrical characteristics, materials used in fabrication, material finish and those optional accessories which are included and those which are excluded. In addition, include seismic data regarding installation and seismic withstand certification if applicable.

C. Each submittal shall be thoroughly reviewed by Contractor. The cover letter accompanying submittal letter shall list in full the items and data submitted and shall contain a statement acknowledging that the Contractor has performed a detailed review of the submittal documents prior to submission. Failure to 258
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comply with this requirement shall constitute grounds for return of data for resubmission without review.

D. Contractor agrees that Shop Drawings processed by the Engineer are not change-orders. The purpose of Shop Drawings is to demonstrate that the Contractor understands the design concept, and that he demonstrates his understanding of such by indicating which equipment and materials he intends to furnish and install, and by detailing the fabrication and installation methods he intends to use.

1.6 PRODUCT DELIVERY, STORAGE AND HANDLING
A. Equipment and materials shall be properly stored and adequately protected and carefully handled to prevent damage before and during installation. Equipment and materials shall be handled, stored, and protected in accordance with the manufacturer's recommendations and as approved by the Owner. Electrical conduit shall be stored to provide protection from the weather and accidental damage. Plastic conduit shall be stored on even supports and in locations not subject to direct sunrays or excessive heat. Cables shall be sealed, stored and handled carefully to avoid damage to the outer covering or insulation and damage from moisture and weather. Damaged or defective items, in the opinion of the City, shall be replaced with new items at no cost, to the Owner.

1.7 PERMITS AND FEES
A. To be paid for by Contractor as stipulated in the General Conditions.

PART 2 – PRODUCTS
(Not applicable)
PART 3 - EXECUTION

3.1 TESTS
A. Tests shall be conducted during the construction period and at completion to determine conformity with applicable codes and with these specifications. Tests shall be performed in the presence of the City and shall include, but are not limited to, the following:

1. Insulation Resistance: Perform 500-volt D.C. tests for one minute on all feeder conductors, including the neutral, and make a typed record of all readings to be 259
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included in the maintenance instructions. Repair or replace circuits showing less than 4 megohms resistance to ground. Make tests using Biddle Insulation Resistance Megger, or equal.

2. Circuits Continuity: Test all feeder and branch for continuity. Test all neutrals for improper grounds and correct improper grounds if discovered.

3. Test Equipment Circuits: Test equipment circuits for correct operation through their control devices, including electric heaters and thermostats.

4. Lighting Control Circuits: Perform operation tests for all lighting circuits through their control devices.

5. Circuit Numbering Verification: All circuits shall be verified. During acceptance testing, select on a random basis, various circuit breakers in the panelboards and loadcenters, cycle them on and off to verify compliance of the typed panel directories with actual field wiring.

6. Outlet Device Covers: All device covers shall be provided with identification tag showing Panel and circuit number.

7. Product Failure: Any products which fail during the tests or are ruled unsatisfactory by the City shall be replaced, repaired, or corrected as prescribed by the City at the expense of the contractor. Tests shall be performed after repairs, replacements or corrections until satisfactory performance is demonstrated.

3.2 INSTRUCTIONS AND MANUALS
A. Refer to Section 01 73 00, Shop Drawings, Product Data, and Samples.

B. At the time of completion, a minimum of four hours or as agreed upon with the owner shall be allotted by the contractor for instruction of building operating and maintenance personnel in the use of all systems. All personnel shall be instructed at one time, the contractor making all necessary arrangements with manufacturer's representatives. The equipment manufacturer shall provide product literature and application guides for the users' reference.

C. Costs for the above-mentioned services shall be paid for by the Contractor.

3.3 PROJECT RECORD DOCUMENTS (AS-BUILTS)
A. Provide project record drawings and specifications as required by other sections of these specifications and as required herein. Such drawings shall fully represent installed conditions including actual location of outlets, true panel board connections following phase balancing routines, correct conduit and wire sizing as well as routing, revised fixture scheduling listing the manufacturer and products installed and revised panel schedules. The project record drawings shall be done in AutoCAD format and final plotted. The computer files for the original base drawings will be provided by the Engineer for contractor to develop 260
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their as-built documents.

B. All changes to drawings shall be made by qualified draftspersons to match existing work and lettering as closely as possible in AutoCAD.

3.4 WORKMANSHIP
A. Preparation, handling and installation shall be in accordance with manufacturer's written instructions and technical data particular to the product specified and/or approved except as otherwise specified. Coordinate work and cooperate with others in furnishing and placing this work. Work to approved shop drawings for work by others and to field measurements as necessary to properly fit the work.

B. Conform to the National Electrical Contractor's Association - Standard of Installation for General Installation Practice.

3.5 SCHEDULE OF WORK
A. Arrange work to conform to the schedule that has been established for the progress of the work. Advise regarding shipping schedule of major equipment.

3.6 SUPERVISION
A. Contractor shall personally or through an authorized and competent representative constantly supervise the work from beginning to completion and, within reason, keep the same workmen and foreman on the project throughout the project duration. Contractor shall be responsible for all co-ordination with other crafts.

B. Contractor shall accept responsibility for coordination with all crafts.

3.7 PROTECTION
A. Keep conduits, junction boxes, outlet boxes, and other openings closed to prevent entry of foreign matter. Cover fixtures, equipment and apparatus and protect against contamination by dirt, paint, water, or chemicals, and from mechanical damage, before and during construction period. Restore to original condition any fixture, apparatus, or equipment damaged prior to final acceptance, including restoration of damaged shop coats of paints, before final acceptance. Protect bright finished surfaces and similar items until in service.

No rust or damage will be permitted.
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3.8 SPECIAL TOOLS
A. All special tools for proper operation and maintenance of the equipment provided under this section shall be delivered to the Architect.

3.9 SEISMIC BRACING
A. All electrical components shall be braced and supported to conform to California Administrative Code, Title 24, and to the California Building Code.

3.10 CUTTING AND PATCHING
A. Install all required sleeves, forms and insets before walls or partitions are built.

Cutting and patching of walls, partitions, ceilings and floor necessary for reception of work, cause by failure to provide or properly located sleeves, forms and inserts, incorrect location of work or failure to cooperate with other trades, shall be done at expense of trade responsible. All penetrations through fire rated walls/floors shall be sealed with approved material to maintain the firerating of the wall/floor.

B. No cutting of finished or structural work may be done without acceptance.

When necessary to have finished material or structural work cut, finish necessary drawings to trade whose materials are out to be cut.

END OF SECTION 26 01 00
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SECTION 26 10 00 Basic Materials and Methods
PART 1 - GENERAL

1.1 Section Includes:

A. Products, assemblies and basic installation methods required as specified under this Division shall include, but is not limited to:

1. Conduit, raceways, and fittings.

2. Wire and cables.

3. Wire connections and devices.

4. Pull and junction boxes.

5. Terminal boards, punch down blocks.

B. Related Sections:

1. Section 26 01 00 - General Electrical Requirements.

1.02 SUBMITTALS
A. Conductors and cables.