P
UBLIC WORKS DEPARTMENT • 10300 TORRE AVENUE • CUPERTINO, CALIFORNIA 95014
DESIGN-BUILD CONTRACT DOCUMENTS
F
OR THE
CUPERTINO PHOTOVOLTAIC SYSTEMS
DESIGN AND INSTALLATION PROJECT
CIP PROJECT NUMBER 2025-02
REVIEWED BY:
_
______________________________________
Susan Michael, RA, LEED AP,
Capital Improvement Programs Manager
APPROVED BY:
_
______________________________________
Chad Mosley, PE,
Director of Public Works & City Engineer
Attachment A
PROJECT DIRECTORY
Project Name: Cupertino Photovoltaic Systems Design and Installation project
Cupertino project numbers:
G.L. NWS CIP
420-99-274 FVAR 004 2025-02
Project Locations:
Facility Address APN
1 Quinlan Community Center 10185 N Stelling Rd.
Cupertino, CA 95014
326 54 041
2 Cupertino Sports Center 21111 Stevens Creek
Blvd. Cupertino, CA
95014
326 29 022
3 Community Hall 10350 Torre Avenue,
Cupertino, CA 95014
369 31 033
Project Manager: City of Cupertino
Susan Michael, CIP Manager
Public Works Department
10300 Torre Avenue
Cupertino, CA 95014
PH: 408-777-3354
FAX: 408-777-3333
e-mail:
Address for Stop Notices: City of Cupertino
Susan Michael, CIP Manager
Public Works Department
10300 Torre Avenue
Cupertino, CA 95014
PH: 408-777-3354
FAX: 408-777-3333
e-mail:
i
CUPERTINO PHOTOVOLTAIC SYSTEMS DESIGN AND INSTALLAT ION PROJECT
TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................................................... i
Design-Build Contract ...................................................................................................................... 1
1. Contract Documents. ....................................................................................................... 1
2. Definitions. ....................................................................................................................... 2
3. DBE’s Responsibilities. ................................................................................................... 2
4. Payment. ......................................................................................................................... 2
5. Time for Completion. ....................................................................................................... 2
6. Liquidated Damages. ...................................................................................................... 2
7. Labor Code Compliance.................................................................................................. 2
8. Workers’ Compensation Certification. ............................................................................. 3
9. Conflicts of Interest. ......................................................................................................... 3
10. Independent Contractor................................................................................................... 3
11. Notice. ............................................................................................................................. 4
12. General Provisions. ......................................................................................................... 4 Payment Bond ................................................................................................................................. 7 Performance Bond ........................................................................................................................... 9 General Conditions ........................................................................................................................ 11 Article 1 – Definitions ..................................................................................................................... 11 Article 2 – Roles and Responsibilities ........................................................................................... 15
2.1 Relationship with City .................................................................................................... 15
2.2 Scope of Services ......................................................................................................... 15
2.3 Design Services. ........................................................................................................... 16
2.4 Construction Services ................................................................................................... 19
2.5 Subcontractors. ............................................................................................................. 22
2.6 Coordination of Work. .................................................................................................... 22
2.7 Submittals. ..................................................................................................................... 23
2.8 Shop Drawings .............................................................................................................. 24
2.9 Access to Work. ............................................................................................................ 25
2.10 Personnel. ..................................................................................................................... 25 Article 3 - Contract Documents ...................................................................................................... 25
3.1 Order of Precedence. .................................................................................................... 25
3.2 Bridging Documents. ..................................................................................................... 25
3.3 Caltrans Standard Specifications. (Not used.) .............................................................. 26
3.4 For Reference Only. ...................................................................................................... 26
3.5 Current Versions. .......................................................................................................... 26
3.6 Conformed Copies. ....................................................................................................... 26 Article 4 - Bonds, Indemnity, and Insurance .................................................................................. 26
4.1 Payment and Performance Bonds ................................................................................ 26
4.2 Indemnity and Liability ................................................................................................... 26
4.3 Insurance ....................................................................................................................... 27 Article 5 - Contract Time ................................................................................................................ 30
5.1 Time is of the Essence .................................................................................................. 30
5.2 Schedule Requirements ................................................................................................ 31
5.3 Delay and Extensions of Contract Time ........................................................................ 32
5.4 Liquidated Damages ..................................................................................................... 36 Article 6 - Contract Modification ..................................................................................................... 37
6.1 Contract Modification. .................................................................................................... 37
6.2 DBE Change Order Requests ....................................................................................... 38
6.3 Adjustments to Contract Price ....................................................................................... 39
6.4 Unilateral Change Order ............................................................................................... 39
6.5 Non-Compliance Deemed Waiver ................................................................................. 40 Article 7 - General Construction Provisions ................................................................................... 40
ii
7.1 Permits, Fees, Business License, and Taxes ............................................................... 40
7.2 Temporary Facilities ...................................................................................................... 40
7.3 Noninterference and Site-Management ........................................................................ 40
7.4 Signs .............................................................................................................................. 41
7.5 Project Site and Nearby Property Protections. ............................................................. 41
7.6 Materials and Equipment............................................................................................... 42
7.7 Testing and Inspection .................................................................................................. 44
7.8 Project Site Conditions and Maintenance ..................................................................... 45
7.9 Instructions and Manuals .............................................................................................. 47
7.11 Existing Utilities ............................................................................................................. 47
7.12 Notice of Excavation ...................................................................................................... 48
7.13 Trenching and Excavations of Four Feet or More. ........................................................ 48
7.14 Trenching of Five Feet or More ..................................................................................... 49
7.15 New Utility Connections ................................................................................................ 49
7.16 Lines and Grades. ......................................................................................................... 49
7.17 Historic or Archeological Items ...................................................................................... 49
7.18 Recycling and Waste Disposal. ..................................................................................... 49
7.19 Storm Water Pollution Control. ...................................................................................... 50
7.20 Traffic Control and Public Safety. .................................................................................. 58
7.21 Noise Control. ................................................................................................................ 59
7.22 Fire Protection Plan. ...................................................................................................... 59
7.23 Mined Materials. ............................................................................................................ 59 Article 8 - Payment ........................................................................................................................ 59
8.1 Payment. ....................................................................................................................... 59
8.2 Schedule of Values ....................................................................................................... 59
8.3 Progress Payments ....................................................................................................... 60
8.4 Adjustment of Payment Application .............................................................................. 61
8.5 Early Occupancy. .......................................................................................................... 62
8.6 Retention ....................................................................................................................... 62
8.7 Setoff. ............................................................................................................................ 62
8.8 Payment to Subcontractors and Suppliers .................................................................... 62
8.9 Final Payment ............................................................................................................... 63
8.10 Release of Claims ......................................................................................................... 63
8.11 Warranty of Title ............................................................................................................ 63 Article 9 - Labor Provisions ............................................................................................................ 63
9.1 Discrimination Prohibited............................................................................................... 63
9.2 Labor Code Requirements ............................................................................................ 63
9.3 Prevailing Wages .......................................................................................................... 64
9.4 Payroll Records ............................................................................................................. 64
9.5 Labor Compliance ......................................................................................................... 65 Article 10 - Safety Provisions ......................................................................................................... 65
10.1 Safety Precautions and Programs ................................................................................ 65
10.2 Hazardous Materials ..................................................................................................... 65
10.3 Material Safety .............................................................................................................. 66
10.4 Hazardous Condition ..................................................................................................... 66 Article 11 - Completion and Warranty Provisions .......................................................................... 66
11.1 Final Completion ........................................................................................................... 66
11.2 Warranty ........................................................................................................................ 67
11.3 Use Prior to Final Completion ....................................................................................... 68
11.4 Substantial Completion ................................................................................................. 68 Article 12 - Dispute Resolution ...................................................................................................... 69
12.1 Claims............................................................................................................................ 69
12.2 Claims Submission ........................................................................................................ 69
12.3 City’s Response ............................................................................................................ 71
12.4 Meet and Confer ............................................................................................................ 71
12.5 Mediation and Government Code Claims ..................................................................... 71
iii
12.6 Tort Claims .................................................................................................................... 72
12.7 Arbitration ...................................................................................................................... 72
12.8 Burden of Proof and Limitations .................................................................................... 72
12.9 Legal Proceedings ......................................................................................................... 72
12.10 Other Disputes .............................................................................................................. 72 Article 13 - Suspension and Termination ...................................................................................... 73
13.1 Suspension for Cause ................................................................................................... 73
13.2 Suspension for Convenience ........................................................................................ 73
13.3 Termination for Default .................................................................................................. 73
13.4 Termination for Convenience ........................................................................................ 75
13.5 Actions Upon Termination for Default or Convenience. ................................................ 75 Article 14 - Miscellaneous Provisions ............................................................................................ 76
14.1 Assignment of Unfair Business Practice Claims ........................................................... 76
14.2 Provisions Deemed Inserted ......................................................................................... 76
14.3 Waiver ........................................................................................................................... 76
14.4 Titles, Headings, and Groupings ................................................................................... 76
14.5 Statutory and Regulatory References ........................................................................... 77 Special Conditions ......................................................................................................................... 78
APPENDIX A: DAVIS – BACON ACT WAGE DETERIMINATION
APPENDIX B: EXEMPLAR INSURANCE REQUIREMENTS
Photovoltaic Systems Design and Installation Project DESIGN-BUILD CONTRACT Project 2025-02 Page 1
Design-Build Contract
This design-build contract (“Contract”) is entered into on this 5th day of February 2025 (“Effective
Date”) by and between the City of Cupertino (“City”), a municipal corporation, and Syserco Energy Solutions, Inc. (“DBE”), a California corporation, for design and construction of the Photovoltaic Systems Design and Installation projec t (“Project”).
RECITALS
A. The Project involves design and construction of photovoltaic systems and related systems at three [3] sites owned by the City of Cupertino.
B. Pursuant to § 22164 of the Public Contract Code, City issued a Request for Qualifications (“RFQ”), dated October 10, 2024, to qualify and short-list potential Design-Build Entities for the Project.
C. Pursuant to § 22164 of the Public Contract Code, City issued a Request for Proposals (“RFP”), dated November 14, 2024, to short-listed Design-Build Entities, requesting proposals to provide the design-build services (“Services”) for the Project.
D. DBE submitted its proposal (“Proposal”) on Decem ber 27, 2024 in response to the RFP.
City’s evaluation panel determined that DBE’s Proposal offered the best value to the City.
E. On
February 4, 2025 the City Council awarded the Contract for the Proje ct to DBE and authorized the City to enter into this Contract with DBE.
F. City has awarded the Contract for the Project to DBE in reliance on DBE’s representations and qualifications in response to the RFQ and DBE’s Proposal and based on City’s determination that DBE’s Proposal offers the best value under the criteria set forth in the RFP.
TERMS AND CONDITIONS
The parties agree as follows:
1. Contract Documents.
The Contract Documents incorporated into this Contract include and are comprised of all of the documents listed below, all of which are incorporated herein. The definitions provided in Article 1 of the General Conditions apply to all of the Contract Documents, including this Contract.
1.1 RFP and three addenda;
1.2 RFP Submittal Proposal and attachments;
1.3 Contract; and any duly authorized and executed amendments thereto;
1.4 Bridging Documents;
1.5 City of Cupertino Standard Details;
1.6 Payment and Performance Bonds;
1.7 List of Subcontractors
1.8 General Conditions;
1.9 Special Conditions;
1.10 City-approved Bridging Documents
1.11 PG&E Interconnection Permit Applications for t he three sites: Quinlan Community Center, Cupertino Sports Center, Communit y Hall.
1.12 Change Orders, duly authorized and executed, i f any;
Photovoltaic Systems Design and Installation Project DESIGN-BUILD CONTRACT Project 2025-02 Page 2
1.13 Notice of Potential Award;
1.14 Notice to Proceed with Design Services; and
1.15 Notice to Proceed with Construction Services.
2. Definitions.
2.1 Defined Terms. Capitalized terms that are used in this Contract or elsewhere in the Contract Documents that are not otherwise defined h ave the same meanings provided for those terms in Article 1 of the General Conditions.
2.2 For Reference Only. The following documents are provided or made avail able to the DBE “For Reference Only,” as specified in Section 3.5 of the Contract General Conditions:
Facility Record drawings, attached to the 11/14/2024 RFP as Appendix E
3. DBE’s Responsibilities.
DBE is responsible for providing the Services neces sary to design and construct the Project as required by the Contract Documents. DBE must exercise reasonable skill and judgment in the performance of the Services. DBE must provide, furnish, and supply all services and things necessary and incidental for the timely design, performance and completion of the Project, including provision of all necessary labor, materials, equipment, transportation, onsite facilities, and utilities, unless otherwise specified in the Contract Documents. DBE must use its best efforts to provide the Services in a professional and expeditious manner and to meet or exceed the performance standards required by the Contract Documents.
4. Payment.
4.1 Contract Price . As full and complete compensation for DBE’s timel y performance and completion of the Project in strict accordance with the terms and conditions of the Contract Documents, City will pay DBE a lump sum price of $3,939,881.00 (“Contract Price”), which consists of the following components:
(A) Design Services. For complete and satisfactory performance of the D esign Services, City will pay DBE $197,297.00.
(B) Construction Services. For complete and satisfactory performance of the Construction Services, City will pay DBE $3,669,145.
4.2 Scope and Limitations. The Contract Price includes all applicable federal, state, and local taxes and is fully inclusive of all direct and indirect costs, overhead, and profit. The Contract Price is not subject to adjustment due to inflation or due to the increased cost of labor, material, or equipment after the Effective Date.
5. Time for Completion.
DBE will achieve Final Completion of the Project prior to April 10, 2026 (“Contract Time”). By signing below, DBE expressly waives any claim for delayed early completion.
6. Liquidated Damages.
If DBE fails to achieve Final Completion within the Contract Time, City will assess liquidated damages in the amount of $1500 per day for each day of unexcused delay in achieving Final Completion, and such liquidated damages may be dedu cted from City’s payments due or to become due to DBE under this Contract. Refer to General Conditions Section 5.4 “Liquidated Damages” for additional information.
7. Labor Code Compliance.
7.1 General. The Construction Services, as defined in Article 1 of the General Conditions, are subject to all applicable requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code, including requirements pertaining to wages, working
Photovoltaic Systems Design and Installation Project DESIGN-BUILD CONTRACT Project 2025-02 Page 3
hours and workers’ compensation insurance, as further specified in Article 9 of the General Conditions.
7.2 Prevailing Wages. The Construction Services are subject to the preva iling 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 on file with the City and available online at
http://www.dir.ca.gov/DLSR .
7.3 DIR Registration. DBE, members of its Design-Build Team providing Con struction Services, and its Subcontractors, and any other business entity or individual providing Construction Services for the Project, must be registered with the California Department of Industrial Relations (“DIR”) to perform public work pursuant to Labor Code § 1725.5. The Construction S ervices under this Contract are subject to compliance monitoring and enforcemen t by the DIR pursuant to Labor Code § 1771.4.
7.4 Skilled and Trained Workforce. By executing this Contract, DBE is providing an enforceable commitment pursuant to Public Contract Code § 2602 and § 22614(c), that a “skilled and trained workforce,” as that term is defined in Public Contract Code § 2601, will be used to complete all Services on the Project that fall within an apprenticeable occupation in the building and const ruction trades, in accordance with Public Contract Code § 2600 et seq. DBE, membe rs of the Design-Build Team providing Construction Services, and Subcontractors of every tier will comply with these requirements. DBE will provide City with a monthly report while the Project is being constructed evidencing that the DBE, its Design-Build Team (as applicable), and Subcontractors are complying with this requirement.
8. Workers’ Compensation Certification.
Pursuant to Labor Code § 1861, by signing this Contract, DBE 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 Services on this Contract.”
9. Conflicts of Interest.
DBE, members of the Design-Build Team, Subcontracto rs, and their respective employees 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 section 1090 et seq., or the Political Reform Act, as set forth in Government Code section 81000 et seq. and its accom panying regulations. No officer, official, employee, consultant, or other agent of the City (“City Representative”) may have, maintain, or acquire a “financial interest” in the Contract, as that term is defined under the Political Reform Act (Government Code section 81000, et seq., and regulations promulgated thereunder); or under Government Code section 1090, et seq.; or in violation of any City ordinance or requirement while serving as a City Representative or for one year thereafter.
Any violation of this Section constitutes a material breach of the Contract.
10. Independent Contractor.
DBE is an independent contractor under this Contract and will have control of the Services and the manner in which they are performed. DBE, member s of the Design-Build Team, and its Subconsultants and Subcontractors are not employees of City and are not entitled to participate in any health, retirement, or any other employee benefits from City.
Photovoltaic Systems Design and Installation Project DESIGN-BUILD CONTRACT Project 2025-02 Page 4
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, Department of Public Works
Address: 10300 Torre Avenue
City/State/Zip: Cupertino, CA 95014
Phone: (408) 777-3354
Attn: Susan Michael, CIP Manager
Email:
[email protected]
Copy to: [email protected]
DBE:
Name: Syserco Energy Solutions, Inc.
Address: 215 Fourier Avenue Suite 140
City/State/Zip: Fremont, CA 94539
Phone: 510.498.1410
Attn: Gabe Johnson
Email:
[email protected]
Copy to: Scott Meinzen, [email protected]
12. General Provisions.
12.1 Assignment and Successors. DBE may not assign its rights or obligations under this Contract, in part or in whole, without City’s prior written consent. This Contract is binding on DBE’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 Co urt, and no other place. DBE 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 Santa Clara County, California.
12.4 Amendment. With the exception of unilateral Change Orders iss ued by City pursuant to Section 6.4 of the General Conditions, no amendment or modification of this Contract will be binding unless it is in a Change Order duly authorized and signed by the parties to this Contract.
12.5 Integration. This Contract and the Contract Documents incorpora ted herein, including authorized amendments or Change Orders th ereto, constitute the final, complete, and exclusive terms of the agreement betw een City and DBE.
12.6 Severability. If any provision of the Contract Documents, or portion of a provision, is determined to be illegal, invalid, or unenforceable, the remaining provisions of the Contract Documents will remain in full force and effect.
12.7 Iran Contracting Act. DBE certifies, by signing below, that it is not id entified on a list created under the Iran Contracting Act, Public Contract Code § 2200 et seq.
Photovoltaic Systems Design and Installation Project DESIGN-BUILD CONTRACT Project 2025-02 Page 5
(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 DBE is a corporation, signatures from two officers of the corporation are required pursuant to California Corporation Code § 313.
[Signatures are on the following page.]
Photovoltaic Systems Design and Installation Project DESIGN-BUILD CONTRACT Project 2025-02 Page 6
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: ___________________________
DESIGN-BUILD ENTITY: __________________________________________________ _
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
Photovoltaic Systems Design and Installation Project PAYMENT BOND Project 2025-02 Page 7
Payment Bond
The City of Cupertino (“City”) and ________________ ________ (“DBE”) have entered into a design-build contract, dated _________________, 20_ __ (“Contract”) for design-build delivery of the Cupertino Photovoltaic Systems Design and Installation Projec t (“Project”). The Contract is incorporated by reference into this Payment Bond (“Bond”).
1. General. Under this Bond, DBE as principal and _____________ _______________, its surety (“Surety”), are bound to City as obligee in an amount not less than $_________________, based on 100% of the Constructi on Services price as specified in Section 3 of the Contract (and as defined in Article 1 of the Contract General Conditions), 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 DBE.
2. Surety’s Obligation. If DBE or any of its contractors or subcontractors fails to pay any person authorized in California Civil Code § 9100 to assert a claim against a payment bond, any amounts due under the Unemployment Insura nce 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 DBE and its contractors or 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. DBE must promptly prov ide a copy of this Bond upon request by any person with legal rights under this Bond.
4. Duration. If DBE promptly makes payment of all sums for all l abor, 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: ___________________________________________ ________ Fax: ______________________________________________________ Email: ____________________________________________________
6. Law and Venue. This Bond will be governed by California law, and v enue 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.]
Photovoltaic Systems Design and Installation Project PAYMENT BOND Project 2025-02 Page 8
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 o f Attorney)
CONTRACTOR:
___________________________________
Business Name
s/__________________________________ ____________ __________________
Date
___________________________________
Name, Title
APPROVED BY CITY:
s/ __________________________________ ____________ __________________
Date
____________________________________
Name, Title
END OF PAYMENT BOND
Photovoltaic Systems Design and Installation Project PERFORMANCE BOND Project 2025-02 Page 9
Performance Bond
The City of Cupertino (“City”) and ________________ __________ (“DBE”) have entered into a design-build contract, dated _________________, 20_ ___ (“Contract”) for design-build delivery of the Cupertino Photovoltaic Systems Design and Installation Projec t (“Project”). The Contract is incorporated by reference into this Performance Bond (“Bond”).
1. General. Under this Bond, DBE as Principal and ____________ _______________, its surety (“Surety”), are bound to City as obligee for an amount not less than $__________________, based on 100% the Construction Services price as specified in Section 3 of the Contract (and as defined in Article 1 of the Contract General Conditions), to ensure DBE’s faithful performance of its obligations under the Contract. By executing this Bond, DBE and Surety bind themselves and their respective heirs, executors, administrators, successors, and assigns, jointly and severally, to the provisions of this Bond.
2. Surety’s Obligations. Surety’s obligations are co-extensive with DBE’s obligations under the Contract. If DBE 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 obligation 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 the Construction Services or extensions of time for performance of the Construction Services u nder the Contract. Surety waives the provisions of Civil Code §§ 2819 and 2845.
4. Application of Contract Balance. Upon making a demand on this Bond, City will make the Contract Balance available to Surety for completion of the Construction Services under the Contract. For purposes of this provision, the Contract Balance is defined as the total amount payable by City to DBE as the Construction S ervices price minus amounts already paid to DBE for the Construction Services, and minus any liquidated damages, credits, or back charges to which City is entitled under the terms of the Contract.
5. DBE Default. Upon written notification from City of DBE’s termin ation 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 Construction Service s under the Contract by DBE, with City’s consent, but only if DBE is in default solely due to its financial inability to complete the Construction Services;
5.2 Arrange for completion of the Construction Service s 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 Construction Servi ces under the Contract and reimburse City the amount of City’s costs to have the remaining Construction Services completed.
6. Surety Default. If Surety defaults on its obligations under the Bond, City will be entitled to recover all costs it incurs due to Surety’s default, including legal, design professional, or delay costs.
Photovoltaic Systems Design and Installation Project PERFORMANCE BOND Project 2025-02 Page 10
7. Notice. Any notice to Surety may be given in the manner specified in the Contract and sent to Surety as follows:
Attn: ____________________________________________ _________ Address: __________________________________________________ City/State/Zip: ______________________________________________ Phone: ___________________________________________ ________ 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/ _______________________________________________________________
________________________________________________________________ Name/Title
(Acknowledgment with Notary Seal for Surety and Sur ety’s Power of Attorney must be attached.)
DBE: _____________________________________________ ______________ Business Name
s/ _______________________________________________________________
________________________________________________________________ Name/Title
Date: _____________________
s/ _______________________________________________________________
________________________________________________________________ Name/Title
Date: _____________________
END OF PERFORMANCE BOND
Photovoltaic Systems Design and Installation Project GENERAL CONDITIONS Project 2025-02 Page 11
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 ar e 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 DB E's Proposal for a specified purpose (if applicable).
Architect of Record means the architect retained by DBE with authority to stamp the final Construction Documents provided by DBE.
Article , as used in these General Conditions, means a numb ered Article of the General Conditions, unless otherwise indicated by the context.
Bridging Documents means the documents containing City’s design and c onstruction criteria for the Project as further detailed in Article 3, and as attached to or incorporated into the RFP, including any City-approved modifications thereto.
Change Order means a written document duly approved and execute d by City, which changes the scope of Services or Work, the Contract Price, or the Contract Time.
City means the City of Cupertino, 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 au thorized delegee(s).
Claim means a separate demand by DBE 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; a written demand by DBE disputing a unilateral Change Order or a portion thereof; or a written demand by DBE objecting to the amount of Final Payment.
Construction Documents means the final City-approved Design Documents for constructing the Project.
Construction Manager means the designated representative(s) of the City, which are retained under separate contract with the City to provide construction management services for the Project, including but not limited to Construction Inspection Services.
Construction Phase means the period during which Work is performed to construct the Project, beginning with City's issuance of a Notice to Proceed with Construction Services.
Construction Services means all of the Work required to construction the Project based on the City-approved Design Documents, excluding the Desig n Services, but including all of the services required to be provided or customarily provided by or under the direction of a licensed general contractor.
Contract means the signed design-build contract between City and DBE and the Contract Documents incorporated therein.
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Contract Documents means, collectively, all of the documents listed in Section 1 of the Contract.
Contract Price means the total compensation to be paid to DBE for performance of the Design Services and the Construction Services as set forth in Section 3 of the Contract and as may be amended by Change Order.
Contract Time means the time specified for completion of the Pro ject, as set forth in Section 4 of the Contract and as may be amended by Change Order.
Day means a calendar day unless otherwise specified.
Design-Build Entity (or DBE) means the corporation, limited liability company, partnership, joint- venture, or other legal entity that provides appropriately licensed contracting, architectural, and engineering services pursuant to the Contract and D BE’s Proposal.
Design-Build Team (or DB Team) means the DBE itself and the other individuals and entities identified in DBE’s Proposal as members of its DB Team, including the general contractor and required Subcontractors.
Design Development Documents means intermediate design documents based on the Br idging Documents.
Design Documents means, collectively, the City-approved plans and specifications developed for construction of the Project based on the Bridging Documents, including Design Development Documents, and Construction Documents.
Design Phase means the period during which the Design Services are provided, which begins upon the City's issuance of a Notice to Proceed with Design Services and concludes upon City approval of the final Construction Documents.
Design Professional means any architect, including the Architect of Record, engineer, landscape architect, or land surveyor licensed and in good standing under the applicable provisions of the California Business and Professions Code, who is retained or employed by DBE to provide Design Services for the Project, based on his or her licensed authority.
Design Services means all services necessary to design the Project in conformance with the Bridging Documents, including development of the Design Documents and all services required to be provided by or customarily provided under the direction of a licensed architect or other Design Professional, including services provided by Design Professionals during the Design Phase and Construction Phase and Pre-Construction S ervices, but excluding the Construction Services.
DIR means the California Department of Industrial Relations.
Engineer means the City Engineer for the City of Cupertino and his or her authorized delegees.
Engineer of Record means the engineer retained by DBE with authority to stamp the final Construction Documents provided by DBE.
Excusable Delay is defined in Section 5.3(B), Excusable Delay.
Final Completion means DBE has fully completed all of the Work requ ired by the Contract Documents, including all punch list items and commissioning, and has provided all required submittals, including the instructions and manuals, and as-built drawings to City’s satisfaction.
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Final Payment means City’s payment to DBE of the unpaid Contract Price, following City acceptance of the Project, including release of undisputed retention, but excluding amounts withheld pursuant to the Contract Documents, includ ing liquidated damages, up to 125% of the amount of any unreleased stop notice, amounts subje ct to setoff, and up to 150% of any amount in dispute as authorized by Public Contract Code § 7107.
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 requires otherwise.
Inspector means the individual(s) or firm(s) retained 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 law s, regulations, rules, codes, ordinances, permits, orders, and the like enacted or imposed by or under the auspices of any governmental entity with jurisdiction over the Project or any portion of the Project.
Non-Excusable Delay is defined in Section 5.3(C), Non-Excusable Delay.
Pre-Construction Services mean those Services which are preliminary to comme ncement of the Construction Services, including, but not limited to, investigation and preparatory work, constructability assessment, cost estimating, value engineering, provision of schedules, and all activities to ensure seamless transition of the Project through design to the start of construction, such as timely execution of any and all communicati ons, notifications, and meetings necessary to convey information and respond to questions during this phase.
Project means the Cupertino Photovoltaic Systems Design and Installa tion Project .
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.
Proposal means the Proposal dated December 23, 2024, submit ted by DBE in response to City’s Request for Proposals.
Recoverable Costs is defined in Section 5.3(G), Recoverable Costs .
Request for Proposals (or RFP) means the request for proposals issued by City on N ovember 15, 2024, soliciting proposals for design-build delivery of this Project, and includes any addenda thereto.
Section when used in these General Conditions, means a num bered Section of the General Conditions, unless otherwise indicated by the context.
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Services means, collectively, all of the Design Services and all of the Construction Services which must be performed to completely design and co nstruct the Project in accordance with the Contract Documents, including labor, materials, supplies, and equipment.
Skilled and Trained Workforce has the same meaning as subdivision (d) of Public Contract Code § 2601.
Specifications , whether or not capitalized, means the technical s pecifications in the City- approved final Construction Documents for the Project, unless otherwise indicated by the context (e.g., development of specifications for approval during the Design Phase).
Subcontractor means all licensed contractors, of any tier, retai ned by DBE or any member of the DB Team to provide the Construction Services.
Subconsultant means any professional retained by DBE or a member of the DB Team to provide Services other than Construction Services.
Work means all of the Services necessary for or incidental to completing the Project based on the City-approved Construction Documents in conform ance 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 or furlough days when City staff is unavailable. If a holiday falls on a Saturday, the preceding Friday will be the holiday. If a holiday falls on a Sunday, the following Monday will be the holiday. Holidays observed by the City and furlough days are:
a. New Year’s Day, January 1;
b. Martin Luther King Jr.’s Birthday, third Monday in January; c. Lunar New Year, date varies – January 29, 2025,a nd February 17, 2026; d. Presidents’ Day, third Monday in February;
e. Cesar Chavez Day, March 31 or April 1 observed
f. Memorial Day, last Monday in May;
g. Juneteenth, June 19
h. Independence Day, July 4;
i. Labor Day, first Monday in September;
j. Veterans’ Day, November 11;
k. Thanksgiving Day, as designated by the President ;
l. The Day following Thanksgiving Day;
m. Christmas Day, December 25;
n. City Closure, December 24, 26, 27,28,29,30 and 3 1: and each day appointed by the Governor of California and formally recognized by t he Santa Clara County Board of Supervisors as a day of mourning, or special observ ance.
Worksite means the place or places where the Work is perfor med, which includes, but may extend beyond the Project site, including separate locations for staging, storage or fabrication.
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Article 2 – Roles and Responsibilities
2.1 Relationship with City. DBE accepts the relationship of trust and confidence established between it and City under this Contract. DBE agrees to provide the Services necessary for the complete design and construction of the Project and to use its best efforts to complete the Project in the best and soundest way and in the most efficient and economical manner consistent with the City’s objectives as expressed in the RFP and Bridging Documents, and in compliance with Laws.
(A) Acting on Behalf of City Prohibited. Neither DBE, members of the DB Team, nor any of their agents or employees may act on behalf of or in the name of City except as authorized in writing by City.
(B) Conflicts of Interest . DBE must perform its obligations with integrity and avoid conflicts of interest in violation of Laws, including conflicts of interest pertaining to any person or entity that provided services to the City relating to the solicitation of design- build services. (See Public Contract Code § 22162.)
(C) City Representatives.
(1) 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.
(2) City Engineer. The City Engineer, acting within the authority conf erred 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 DBE to ensure proper and timely completion of the Project. The City Engineer’s decisions are final and conclusive within the scope of his or her authority, including interpretation of the Contract Documents.
(3) Project Manager. The Project Manager assigned to the Project will b e the primary point of contact for the DBE and will serve as City’s representative for daily administration of the Project on behalf of City, assisted by the Construction Manager consultant. The Construction Manager will be the DBE's primary point of contact for communication and submittals. Unless otherwise specified, all communications and submittals (in any form) should be directed to the Construction Manager and copied to the Project Manager. City reserves the right to reassign or replace the Project Manager or Construction Manager at any time or to delegate his or her duties to additional City representatives without prior notice to or consent of the DBE.
2.2 Scope of Services. DBE is responsible for procuring or providing all of the Services necessary for the Project as specified in the Contract Documents, including all labor, materials, equipment and incidentals necessary to timely complete the Project in strict accordance with the Contract Documents and with min imal inconvenience or risk to the public. DBE must exercise reasonable skill and judg ment in the procurement and provision of the Services, consistent with the applicable industry practices, Laws, and the terms and conditions of the Contract Documents. Services include, but are not limited to, design, construction, and coordination with all agencies and entities necessary to complete the project as required to comply with the Pacific Gas and Electric (PG&E) Net Energy Metering (NEM) 2.0 interconnection permit applications, and to ensure successful completion of the project by the deadlines established by the NEM 2.0 requirements.
Work will also include preparation of the documentation and assistance necessary to ensure the City's successful application for Inflation Reduction Act rebates.
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2.3 Design Services. DBE must provide all architectural, engineering, a nd related professional services necessary for the Project during both the Design Phase and the Construction Phase, including design of the Project based on the Contract Documents, which may include development or preparation of pla ns, sections, and elevations; criteria and sizing of components; equipment sizes, capacities, and layouts; typical details; materials selections; investigation of or measured drawings of existing conditions or improvements; verification of the accuracy of any City-provided drawings (including the Bridging Documents) or other information on existing conditions; surveys; site evaluations; cost estimates; Pre-Construction Services; and preparation of models, renderings, or mock-ups.
(A) Design Professionals . Architectural, landscape architectural, engineering, and land surveying services must be provided by licensed, independent Design Professionals employed by or retained by DBE or members of the DBE Team, or as permitted by Laws.
DBE may not engage the services of any Design Profe ssional for this Project, including but not limited to firms or individuals serving as Architect of Record or Engineer of Record, or providing other Design Services, without obtaining City’s prior written approval, which approval will not be unreasonably withheld. City’s approval will not be deemed to create any contractual relationship betwe en City and any such Design Professional, except that City must be considered a third-party beneficiary of the Design Professional’s services for the Project. City’s approval of the Construction Documents will not operate to shift liability for errors and omissions from DBE to City. DBE is solely responsible for any and all costs incurred due to errors and omissions in the Construction Documents.
(1) Bridging Documents. All Design Services must be consistent with and gui ded by the Bridging Documents.
(2) Ongoing Design Servic es. The Design Professional(s) must provide ongoing Design Services as needed during the Construction P hase, including interpretation and clarification of all drawings and specifications prepared by the Design Professional(s), and preparation of documents for proper execution of the Work, including Change Orders.
(B) Project Schedule. Within 10 days following the date of the City’s Notice to Proceed with Design Services, DBE must prepare, and submit for City’s review and approval, a preliminary Project Schedule showing the timing and sequencing of all Services required to design and construct the Project. The preliminary Project Schedule should include development and approval of Design D ocuments; DBE’s procurement of permits and utility services; procurement of Subcontractors; submission and approval of construction cost estimate updates; construction; Final Completion; submission of as- builts; as well as any other milestones applicable to the Project as may be further specified in the Notice to Proceed with Design Services.
(1) Schedule Updates. The Project Schedule must be updated for City’s re view and approval as further specified in the Contract Documents.
(2) Assumptions for City Review Times . The Project Schedule and all updates should reflect the following assumptions for City review:
(a) Assume a minimum review period of one week following submittal of 100% Design Development Documents and 100% Construc tion Documents pursuant to subsection (C), below, plus an additional week to revise and resubmit if requested by City.
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(b) Assume a minimum review period of one week following submittal of any permit drawings, plus an additional week to revise and resubmit if requested by City.
(c) Assume the following City Building Department plan check review periods for all required permits (including trade permits): 21 calendar days for initial plan check review, and 15 calendar days for each subsequent review.
(d) The assumptions set forth above are provided solely for scheduling purposes and do not bind the City to complete its review of any submittal within the assumed time, and the assumed times do n ot account for delays attributable to DBE's incomplete or non-compliant submittals.
(C) Design Documents. DBE must prepare, and submit for City’s review and approval, Design Documents based on and consistent with the Bridging Documents. Any deviation from or inconsistency from the Bridging Documents must be approved in writing in advance by City. The Design Documents must also comply with City’s Standard Details, to the extent applicable to the Project, as determined by the Engineer. The Design Documents must be developed and submitted fo r City’s review and approval at completion of each design phase as specified below. City’s approval of the Design Documents at any phase, including final approval of the Construction Documents, does not operate as a waiver of any deviations from the Bridging Documents that specifically were not approved by City. City retains the right at all times to condition approval on design modifications to ensure the Project is completed within budget and suited for its intended purposes.
(1) Contents. The Construction Documents must set forth in detai l the quality levels of and the requirements for construction of the Project and must comply with all applicable Laws in effect at the time of their preparation.
(2) Design Documents Development . When submitting the Design Documents to City at each stage of development, DBE must identify in writing all material changes and deviations from the Bridging Documents or previously approved version of the Design Documents. Two printed sets a nd one reproducible set of Design Documents must be provided to City at each s ubmittal. Each submittal and resubmittal must be accompanied by an updated v ersion of the Project Schedule required pursuant to Section 2.3(B), above , clearly indicating and explaining any modifications from the prior schedule submission. DBE must submit Design Documents to City for City’s review and approval as follows:
(a) Design Development Phase (100%). Within 5 weeks after City's after issuance of the Notice to Proceed with Design Services, DBE must submit Design Development Documents, including and incorporating all City modifications, as applicable. The Design Development Documents should include, at a minimum, more detailed site improvement plans, plans, sections, elevations with full dimensions, details, and outline material specifications. Following City review, DBE must incorporate any modifications, additions or deletions required by C ity prior to the next submission.
(b) Construction Document Phase (100%). Within 12 weeks after City's approval or conditional approval of the Design Development Documents, DBE must submit Construction Documents for approval by City. The Construction Documents should include all pertinent details and information for planning review, permitting, and construction of the
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Project. Following City review and comment, DBE mus t incorporate any modifications, additions or deletions required by C ity before resubmitting the Construction Documents for final approval. DBE may not proceed with any of the Construction Services until City has approved the Construction Documents as final and issued the Notice to Proceed with Construction Services, unless and to the extent that City provides written authorization for DBE to commence specific portions of the Work, e.g., preliminary site work, prior to final approval.
(3) Substitutions. Any specification in the Bridging Documents or in the City- approved final Construction Documents designating a material, product, thing or service (collectively, an “item”) by specific brand or trade name, followed by the words “or equal,” is intended only to indicate quality and type of item desired, and DBE may request use of any equal item. A request for substitution of an item specified in the Bridging Documents must be submitt ed to City for approval with the Design Development Documents. All data substant iating the proposed substitute as an equal item must be submitted with the written request for substitution. DBE has the burden of proving the equality of the proposed substitution. The City has sole discretion to determine whether a proposed substitution is equal, and the determination is final.
(D) Ownership of Documents. No portion of the Contract Documents may be used for any purpose other than construction of the Project, without prior written consent from City. DBE is deemed to have conveyed t he copyright in any Design Documents (at any stage of development), Shop Drawi ngs, as-builts, or other documents (in paper or electronic form) developed by DBE for the Project, and City will retain all rights to such works, including the right to possession.
(1) Ownership of Tangible Documents. City must receive ownership of all documents, plans, drawings, specifications, electronic data and information prepared, provided or procured by DBE, as part of the Design Services. • Electronic computer-aided design (CAD) files of al l drawings and specifications are required deliverables at 100% design development and 100% construction document phases. If the project CAD files were created in Revit or similar Building Information 3D modeling (BIM) software, the deliverables at each phase shall include the Revit model as well as CAD files exported from that model. If the project CAD files were created in AutoCAD or similar 2D modeling software, the deliverables at each phase shall include the CAD files with all X references bound (sic:
binding) to the files.
• All CAD and BIM files delivered by the DBE shall a dhere to the specified project standards, including accurate geometry, consistent naming conventions, proper layer organization, and appropriate levels of detail (LOD), ensuring compatibility with project workflows and facilitating seamless integration with other disciplines; any discrepancies or quality issues shall be subject to review and correction by the City or designated representative, with non-compliant files requiring revision until meeting the defined quality standards.
(2) Use of Documents in Event of Termination. In the event of a termination of this Contract, City will have the right to use, to reproduce, and to make derivative works of the Design Documents (at any stage of deve lopment) to complete the Project.
(3) City’s Use of Documents After Completion of Project . After completion of the Project, City may reuse, reproduce or make derivative works from the
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Construction Documents for the purposes of maintaining, renovating, remodeling or expanding the Project at the Worksite.
(4) Right to Use. DBE will obtain from its Subcontractors and Subcon sultants rights and rights of use that correspond to the rights given by DBE to City in this Contract and DBE must provide evidence that such rights have been secured.
(E) Subconsultants . DBE must provide duly qualified, licensed, and co mpetent Subconsultants, administration, staff, and skilled workforce necessary to perform and timely complete the Design Services in accordance w ith the Contract Documents.
2.4 Construction Services. DBE must provide all Construction Services and Wor k necessary for the Project, including hiring and coordination of all Subcontractors, close- out services, and warranty work.
(A) General . DBE 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 a nd efficient manner in the best interests of City, and with minimal inconvenience to the public.
(B) Responsibility for the Work and Risk of Loss . DBE is responsible for supervising and directing all aspects of the Work to facilitate the efficient and timely completion of the Work. DBE 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. DBE’s responsibilities extend to any plan, method or sequence suggested but not requ ired by City or specified in the Contract Documents. From the date of commencement o f 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, DBE 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, subject to the limitations of Laws, including Public Contract Code § 7105.
(C) Construction Administration . DBE must provide sufficient and competent Subcontractors, administration, staff, and Skilled and Trained Workforce necessary to perform and timely complete the Construction Services in accordance with the Contract Documents. Before starting the Work, DBE must desig nate in writing and provide complete contact information, including telephone numbers and email address, for the officer or employee in DBE’s organization who is to serve as DBE’s primary representative for the Project, and who has authority to act on DBE’s behalf. A Subcontractor may not serve as DBE’s primary representative.
(D) On-Site Superintendent . DBE must, at all times during performance of the Construction Services, provide a qualified 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 DBE, and DBE will be b ound by the superintendent’s communications to City. City’s approval of the superintendent is required before the Construction Phase commences. If, at any time, 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 DBE’s sole expense and with no extension of Contract Time, until an approved
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superintendent is physically present to supervise the Work. DBE must provide written notice to City, as soon as practicable, before replacing the superintendent.
(E) Standards . DBE must, at all times, ensure that the Work is performed in a good workmanlike manner and in full compliance with the Contract Documents and all applicable Laws and applicable manufacturer’s recom mendations. DBE has a material and ongoing obligation to provide true and complete information, to the best of its knowledge, with respect to all records, documents, or communications pertaining to the Project, including oral or written reports, statements, certifications, Change Order requests, or Claims.
(F) Meetings. DBE, its project manager, superintendent, and any primary Subcontractors and suppliers requested by City, must attend a Preconstruction Conference before beginning Work on the Project, an d will also be required to attend regular progress meetings, as further specified below and as may be otherwise specified in the Notice to Proceed with Construction Services. City will notify DBE in advance of the date, time, place and required attendees for the Preconstruction Conference and progress meetings and will provide and administer the agenda. DBE is responsible for notifying its major Subcontractors and suppliers, and other required attendees, as applicable, of the date, time and place for the Preconstruction Conference and progress meetings; for providing them with the City’s agenda; and for requiring their attendance at these meetings. If applicable, DBE 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.
(1) Preconstruction Conference . The Preconstruction Conference agenda items may include schedules, personnel and vehicle permit procedures, use of the premises, locations for staging area(s) and jobsite trailers, security, housekeeping, submittal and RFI procedures, Project forms and procedures, inspection and testing procedures, utility shutdown procedures, control and reference point procedures, injury and illness prevention program, DBE’s schedule of values, DBE’s schedule of submittals, and such other matters that the City deems necessary to address before the Work begins.
(2) Progress Meetings. During the course of the Construction Phase, progr ess meetings will be conducted on a weekly basis by the City and at DBE’s on-site office, unless otherwise specified. Progress meeting agenda items may include review of past meeting minutes, review of Work in progress since previous progress meeting, schedule status and updates, status of submittals or change orders, worker safety, and other such matters perta ining to the progress of the Work.
(G) Construction Records. DBE 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.
DBE 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. DBE will maintain copies of all subcontracts, Project-related correspondence with Subcontractors, and records of meetings with Subcontractors. Upon request by the City, DBE will permit review of and/or provide copies of any of these construction records.
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(H) Responsible Party . DBE is solely responsible to City for the acts or omissions of any party or parties performing portions of the Work or providing equipment, materials or services for or on behalf of DBE or its Subcontractors. Upon City’s written request, DBE must promptly and permanently remove from the Project, at no cost to City, any employee or Subcontractor or employee of a Subcontr actor who the City 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 . DBE must promptly correct, at DBE’s sole expense, any Work that is deficient or defective in any way, including workmanship, materials, parts or equipment. Workmanship, materials or equipment that do not conform to the requirements under the Contract Documents, as deter mined by City, will be considered defective and subject to rejection. DBE must also promptly correct, at DBE’s sole expense, any Work performed beyond the lines and gr ades authorized or approved by City, and any Extra Work performed without City’s prior written approval. If DBE 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 DBE’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. DBE’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 DBE. This paragraph applies to any defective Work performed by DBE during the one- year warranty period under Section 11.2.
(J) DBE’s Records . DBE must maintain all of its records relating to the Project in any form, including paper documents, photos, videos and electronic records. Project records subject to this provision include, but are not limited to, daily reports, Project cost records and records relating to preparation of DBE’s Proposal.
(1) DBE’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 DBE as extra work. DBE’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) DBE must continue to maintain its Project records in an organized manner for a period of five years after City’s acceptance of the Project or following termination, whichever occurs first. Subject to prior notice to DBE, City is entitled to inspect or audit any of DBE’s Project records relating to the Project or to investigate DBE’s plant or equipment during DBE’s normal business hours.
DBE’s records may also be subject to examination an d audit by the California State Auditor, pursuant to Government Code § 8546.7. The record-keeping requirements set forth in this subsection 2.2(J) will survive expiration or termination of the Contract.
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(L) Copies of Contract Documents. DBE and its Subcontractors must keep copies, at the Project site, of all Work-related documents, including the Contract, permit(s), Construction Documents, Contract amendme nts, Change Orders, RFIs and RFI responses, Shop Drawings, as-built drawings, schedules, daily reports, 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.
2.5 Subcontractors.
(A) General. All Work which is not performed by DBE with its own forces will be performed by its Subcontractors. Except for Subcontractors listed in the DBE’s Proposal, DBE must award subcontracts with a value exceeding one half of one percent of the Contract Price for Construction Services in compliance with Public Contract Code § 22166(b), including public notice. All Subcontractors bidding on contracts for the Work must be afforded the protections contained in the Subletting and Subcontracting Fair Practices Act (Public Contract Code § 4100 et seq.). DBE must provide each Subcontractor with a complete set of the Construction Documents and any approved modifications thereto. City reserves the right to approve or reject any and all Subcontractors proposed to perform the Work.
(B) Contractual Obligations. DBE must require every Subcontractor to be bound to the provisions of the Contract Documents as they apply to the Subcontractor’s portion(s) of the Work, and to likewise bind their subcontractors or suppliers. DBE will provide that the rights that each Subcontractor may have against any manufacturer or supplier for breach of warranty or guarantee relating to items provided by the Subcontractor for the Project, will be assigned to City. Nothing in these Contract Documents creates a contractual relationship between a Subcontractor and City, but City is deemed to be a third-party beneficiary of the contract between DBE and each Subcontractor.
(C) Termination. If the Contract is terminated, each Subcontractor’s agreement must be assigned by DBE 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 DBE pursuant to each such subcontract agreement.
(D) Substitution of Subcontractor. If DBE requests substitution of a listed Subcontractor under Public Contract Code § 4107, DB E is solely responsible for all costs City incurs in responding to the request, including legal fees and costs to conduct a hearing, and DBE is also solely responsible for any resulting increase in subcontracting costs.
2.6 Coordination of Work.
(A) Concurrent Work. City reserves the right to perform or to have performed other work on or adjacent to the Project site while the Work is being performed. DBE is responsible for coordinating its Work with other work being performed on or adjacent to the Project site, and must avoid hindering, delaying, or interfering with the work of other contractors and subcontractors. To the full extent permitted by law, DBE must hold harmless and indemnify City against any and all claims arising from or related to DBE’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) Defects. Before proceeding with any portion of the Work affected by the construction or operations of others, DBE must give City prompt written notification of any defects DBE discovers which will prevent the proper execution of the Work. Failure to
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give notice of any such known defects will be deemed acknowledgement by DBE that the work of others is not defective and will not prevent the proper execution of the Work.
2.7 Submittals .
Unless otherwise specified, DBE must submit to the City Engineer for review and acceptance of all schedules, Shop Drawings, samples , product data and similar submittals required by the Contract Documents, or upon request by the City 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 in the Special Conditions or elsewhere in the Contract Documents.
Unless otherwise specified, all submittals should be transmitted electronically using standard commercial software programs, including the Special Conditions or Specifications. The City 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. DBE is responsible for ensuring that its submittals are complete, legible, accurate and conform to the Contract Documents. Incomplete or illegible submittals will be rejected and returned for resubmission. DBE must use the applicable forms provided or specified for use by the City, including the Project Forms provided with the Contract Documents, and forms provided by City at the Pre-Construction Conference.
(B) Time and Manner of Submission. DBE 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 co ntract number, DBE’s name and address, the name and addres s 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, DBE 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. If a submittal remains non-compliant after being re-submitted for a second time, City may back-charge DBE for all further review time and additional administrative costs. For City employees the hourly amount charged will be 2.5 times the employee’s direct hourly payroll cost to the City. For consultants, the amount charged will be 1.25 times the amount billed to the City for additional review and administrative time.
(E) Effect of Review and Acceptance. Review and acceptance of a submittal by City will not relieve DBE from complying with the requirements of the Contract Documents. DBE 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 DBE's risk, and DBE may be required to bear the costs incident thereto, including the cost of removing and replacing such W ork, 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 Project Manager or Inspector.
(G) Excessive RFIs. A Request for Information (RFI) will be considered excessive or unnecessary if City determines that the explanation or response to the RFI is clearly and
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unambiguously discernable from the Contract Documen ts. City’s costs to review and respond to excessive or unnecessary RFIs may be ded ucted from payments otherwise due to DBE, on the same basis as excessive submitta l review, under subsection (D) (Required Corrections).
(H) Construction Phase Substitutions. This provision governs any DBE request for substitution during the Construction Phase with respect to any Specification in the City- approved Construction Documents designating a mater ial, product, or thing (collectively, “item”) or service by specific brand or trade name, followed by the words “or equal.” 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.
(1) A request for substitution of an item or servic e must be submitted in writing to the Project Manager sufficiently in advance of the time needed to avoid delay of the Work, factoring in adequate time for testing, re-testing, or resubmittal. The request must be submitted on the City’s Substitution Request Form.
(2) Any available data substantiating the proposed substitute as an equal item or service must be submitted with the written request for substitution. DBE’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.
(3) DBE has the burden of proving the equality of t he proposed substitution at DBE’s sole cost, including testing using methods acceptable to City. City has sole discretion to determine whether a proposed substitution is equal, and City’s determination is final.
(4) If the proposed substitution is approved, DBE i s solely responsible for any additional costs or time associated with the substituted item or service. If the proposed substitution is rejected, DBE must, without delay, install the item or use the service as specified by City.
(5) City’s approval of a proposed substitution will not relieve DBE from any of its obligations under the Contract Documents. In the event DBE makes an unauthorized substitution, DBE will be solely responsible for all resulting cost impacts, including the cost of removal and replacem ent and the impact to other design elements.
2.8 Shop Drawings. When Shop Drawings are required by the Specifications or requested by the Project Manager, they must be prepared according to best practices at DBE’s expense. The Shop Drawings must be of a size and sc ale to clearly show all necessary details. Unless otherwise specified by City, Shop Drawings must be provided to the Project Manager 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 Project Manager for review within the time spec ified by the Project Manager. For all Project components requiring Shop Drawings, DBE wil l not furnish materials or perform any Work until the Shop Drawings for those componen ts are accepted by City. DBE 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
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the use of Shop Drawings. Acceptance of Shop Drawin gs by City does not relieve DBE DBE’s responsibility.
2.9 Access to Work. DBE must afford prompt and safe access to any Work site by City and its employees, agents, or consultants authorized by City; and upon request by City, DBE must promptly arrange for City representatives to visit or inspect manufacturing sites or fabrication facilities for items to be incorporated into the Work.
2.10 Personnel. DBE and its Subcontractors must employ only compet ent and skillful personnel to perform the Services. DBE and its Subc ontractor’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, DBE and its Subcontractors must immediately dischar ge any personnel who are incompetent, disorderly, disruptive, threatening, abusive, or profane, or otherwise refuse or fail to comply with the requirements of the Contract Documents or Laws, including Laws pertaining to health and safety. Any such discharged personnel may not be re- employed or permitted on the Project in any capacity without City’s prior written consent.
Article 3 - Contract Documents
3.1 Order of Precedence . Information included in one Contract Document but not in another will not be considered a conflict or inconsistency. In case of any conflict or inconsistency among the Contract Documents, the order of preceden ce will follow the order in which the Contract Documents are listed in Section 3.1.1, below, which are listed from highest to lowest. Any conflict or inconsistency will be resolved to ensure construction of the Project and ensure the City’s intended use of the Project.
(A) Change Orders; duly authorized and executed, if any; (B) Addenda;
(C) Contract;
(D) Notice to Proceed with Design Services;
(E) Notice to Proceed with Construction Services;
(F) Special Conditions;
(G) General Conditions;
(H) Payment and Performance Bonds;
(I) List of Subcontractors;
(J) City-approved Bridging Documents;
(K) PG&E Interconnection Permit Applications for th e three sites: Quinlan Community Center, Cupertino Sports Center, Communit y Hall. (L) Notice of Potential Award;
(M) Request for Proposals (RFP) and (3) Addenda;
(N) DBE’s RFP Proposal and attachments;
(O) Request for Qualifications (RFQ);
(P) DBE’s RFQ Proposal and attachments;
(Q) The City’s standard details and specifications, as applicable; and (R) 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.
3.2 Bridging Documents . The Bridging Documents are for general intent of th e final Project design and are not considered to be a complete working package. DBE is responsible to hire and coordinate all associated Design Services, including architectural, structural, mechanical, electrical, plumbing, civil engineering, geotechnical, and landscape
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architecture for the structures and systems, whether shown or implied in the Bridging Documents or required for a complete Project built to current governing codes.
3.3 Caltrans Standard Specifications. (Not used.)
3.4 For Reference Only. DBE is responsible for the careful review of any d ocument, 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. DBE 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. DBE must promptly notify City of any perceived or actual conflict between the Contract Documents and any document pro vided 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.
3.6 Conformed Copies. (Not used.)
Article 4 - Bonds, Indemnity, and Insurance
4.1 Payment and Performance Bonds. No later than ten days following the City’s final approval of the Construction Documents, DBE must pr ovide a payment bond and a performance bond, each in the penal sum of at least 100% of the estimated price for the Construction Services, using the bond forms included with the Contract Documents.
(A) Surety. Each bond must be issued and executed by a surety a dmitted in California, and the surety must have a financial rating from A.M. Best Company of A-, class 7 or better, or as otherwise acceptable to the City. If an issuing surety cancels the bond or becomes insolvent, within seven days following written notice from City, DBE must substitute a surety acceptable to City. If DBE fails to substitute an acceptable surety within the specified time, City may, at its sole discretion, withhold payment from DBE until the surety is replaced to City’s satisfaction, or terminate the Contract for default.
(B) Cost Estimate Updates. If at any time DBE’s updated construction cost estimate exceeds the estimated price for the Construction Services in Section 3 of the Contract by 5%, DBE must replace the initial bonds with bonds based on 100% of the updated estimated price for Construction Services using the bond forms included with the Contract Documents.
4.2 Indemnity and Liability.
(A) DBE’s Indemnity Obligation. To the fullest extent permitted by law, DBE 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 operations of DBE, its employees, Subcontractors, representatives, or agents, in performing the Work or in failing to comply with any obligation of DBE 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
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from alleged defects in the content or manner of su bmission of DBE’s Proposal for the Contract. DBE’s failure or refusal to timely accept a tender of defense pursuant to this Contract will be deemed a material breach of the Contract. This indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for the DBE or its agents or employees under Workers’ Compensation laws, disability benefits laws, or other employee benefit laws. This indemnification obligation is also not limited by any limitation on the amount or type of damages available under any applicable insurance co verage and will survive the expiration or any early termination of this Contract with respect to Liability arising during the term of the Contract. DBE’s indemnity obligations under this Contract will survive the expiration or any early termination of the Contract. This indemnity obligation does not apply to any Design Professionals who are covered by subsection (B) below.
(B) Design Professional Indemnity Obligation. To the fullest extent permitted by law, subject only to the limitations of Civil Code § 2782.8, the Design Professionals who are members of the DBE or retained or employed by D BE to provide the Design Services must indemnify, defend, and hold harmless City, its Council, officers, employees, agents, volunteers and consultants (individually, an “Indemnitee,” and collectively “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 negligence, recklessness, or willful misconduct of the Design Professionals, except such Liability caused by the active negligence, sole negligence, or willful misconduct of an Indemnitee.
This Design Professional indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for the Design Professionals or their agents or employees under Workers’ Compensation laws, disability benefits laws, or other employee benefit laws. This Design Professional indemnification is also not limited by any limitation on the amount or type of damages available under any applicable insurance coverage a nd will survive the expiration or any early termination of this Contract with respect to Liability arising during the term of the Contract.
(C) Third Party Claims. City will timely notify DBE upon receipt of any third-party claim relating to the Contract, as required by Public Contract Code § 9201.
(D) No Personal Liability. No member of the City Council or any individual officer, employee or authorized agent of City will be personally liable for any liability arising under this Contract.
4.3 Insurance. DBE will procure and maintain for the duration of the Project, and for five years following the completion of the Project, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Services hereunder by DBE, its a gents, representatives, employees, Subconsultants, or Subcontractors.
(A) Minimum Scope and Limit of Insurance . Coverage will be at least as broad as the minimum limits set forth below. If DBE maintains broader coverage and/or higher limits than the minimums shown below, City will be entitled to the broader coverage and/or higher limits maintained by DBE. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage will be available to the City. City reserves the right to modify these insurance requirements based on DBE’s prior experience, insurer, coverage, and considering the nature of the risk involved in the Services and other circumstances. DBE should discus s these requirements with its insurer and the designated Public Works Agency representative.
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(1) Commercial General Liability (CGL). Insurance Services Office (ISO) Form CG 00 01 covering CGL on an “occurrence” basis, written on a comprehensive general liability form, and must include coverage for liability arising from DBE’s or Subcontractor’s acts or omissions, including DBE’s protected coverage, blanket contractual, products and completed operations, with limits of a t least $8,000,000 per occurrence . The CGL policy must protect against any and all liability for personal injury, death, property damage or destruction, and personal and advertising injury. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this Project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be $11,000,000, which is twice the required occurrence limit.
(i) It shall be a requirement under this Contract that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits will be made available to the Additional Insured and will be (1) the minimum coverage/limits specified in this Contract; or (2) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater.
(ii) Additional Insured coverage under DBE's policy shall be “primary and non-contributory,” will not seek contribution from City’s insurance/self- insurance, and will be at least as broad as ISO CG 20 01 04 13.
(iii) The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect City as a named insured.
(2) Automobile Liability . ISO Form CA 00 01 covering any auto (Code 1), or if DBE has no owned autos, then hired autos (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
(3) Workers’ Compensation Insurance and Employer’s Liab ility: 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 DBE is self-insured, DBE must provide its Certificate of Permission to Self-Insure, duly authorized by the DIR.
(4) Professional Liability . Professional liability with limits no less than $3,000,000 per occurrence or claim, and $2,000,000 aggregate.
(5) Builder’s Risk . Course of Construction insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the Project and no coinsurance penalty provisions.
(6) Pollution and/or Asbestos Legal Liability . DBEs’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions with limits no less than $2,000,000 per occurrence or claim, and $2,000,000 policy aggregate.
(B) Self-Insured Retentions. Self-insured retentions must be declared to and approved by City. At City’s option, either: (1) DBE will cause the insurer to reduce or
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eliminate self-insured retentions as respects City, its officers, officials, employees, and volunteers; or (2) DBE will provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language will provide, or be endorsed to provide, that the self- insured retention may be satisfied by either the named insured or the City.
(C) Other Insurance Provisions . The insurance policies are to contain, or be endorsed to contain, the following provisions:
(1) Additional Insured Status. The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers are to be covered as “Additional Insureds” on the CGL policy with respect to liability arising out of the operations and/or services performed by or on behalf of the named insured, including materials, parts, or equipment furnished, 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. Endorsement of CGL coverage must be at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used or equivalent form(s) approved by the City.
(2) Primary Coverage. For any claims related to this Project, DBE’s insurance coverage must be “primary and non-contributory” and at least as broad as ISO CG 20 01 04 13 with respect to City, its officers, officials, employees and volunteers, and must not seek contribution from City’s insurance. If the limits of insurance are satisfied in part by Umbrella/Excess Insurance, the Umbrella/Excess Insurance must contain or be endorsed to contain a provision that such coverage will also apply on a “primary and non-contributory” basis for the benefit of City.
(3) Notice of Cancellation. Each insurance policy required must provide that coverage will not be canceled, except with notice to the City. Each certificate of insurance must state that the coverage afforded by the policy is in force and will not be reduced, cancelled or allowed to expire without at least 30 days advance written notice to City, unless due to non-payment of premiums, in which case ten days advance written notice must be provided to City. Such notice must be sent to City via certified mail and addressed to the attention of the City Manager.
(4) Builder’s Risk. DBE may submit Builder’s Risk insurance in the form of Course of Construction coverage, which shall name the City as a loss payee, as its interest may appear. Policy limits must be per occurrence and for all-risk coverage on a 100% completed value basis on the insurable portion of the Project, with no coinsurance penalties, and for the benefit of City. If the Project does not involve new or major reconstruction, City may elect in its sole discretion to accept an Installation Floater policy instead of Builder’s Risk. For such projects, the Property Installation Floater shall include improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment, and shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site.
(5) Waiver of Subrogation. Each required policy must include an endorsement providing that the carrier agrees to waive any right of subrogation it may have against City. DBE agrees to waive rights of subrogation which any insurer of DBE may acquire from DBE by virtue of the payment of any loss. DBE agrees to obtain any endorsement that may be necessary to affect this waiver of
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subrogation. The Workers’ Compensation policy must be endorsed with a waiver of subrogation in favor of the City for all work performed by the DBE, its employees, agents and Subcontractors.
(6) Acceptability of Insurers. Insurance must be issued by insurers acceptable to City and licensed to do business in the State of California, and each insurer must have an A.M. Best’s financial strength rating of “A-” or better and a financial size rating of “VII” or better.
(7) Verification of Coverage. DBE will furnish the City with original certificates and amendatory endorsements, or copies of the applicable insurance language, evidencing the coverage required by this Contract. All certificates and endorsements are to be received by the City no later than five days following City Council approval of the Contract. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.
(8) Subcontractors. DBE will require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and DBE will ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage subcontractors will provide coverage with a form at least as broad as CG 20 38 04 13.
(9) Claims Made Policies. If any coverage required is written on a claims-made coverage form:
(i) The retroactive date must be shown, and this date must be before the execution date of the Contract or the beginning of the Services.
(ii) Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Services.
(iii) If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the Effective Date of the Contract, or start of Services, the DBE must purchase extended reporting period coverage for a m inimum of five years after completion of the Services.
(iv) A copy of the claims reporting requirements must be submitted to the City for review.
(v) If the Services involve lead-based paint or asbestos identification/remediation, the DBE’s Pollution Liability policy must not contain lead-based paint or asbestos exclusions. If the Services involve mold identification/remediation, the DBE’s Pollution Liability policy must not contain a mold exclusion, and the definition of “pollution” must include microbial matter, including mold.
Article 5 - Contract Time
5.1 Time is of the Essence. Time is of the essence in DBE’s performance and co mpletion of the Work, and DBE must diligently prosecute the Work and complete it within the Contract Time.
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(A) General. DBE must commence the Services on the date indicate d in the Notice to Proceed with Design Services and must fully perform the Services and complete the Project in strict compliance with all requirements of the Contract Documents, and within the Contract Time.
(B) Rate of Progress. DBE and its Subcontractors must, at all times, prov ide 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 DBE is failing to prosecute the Work at a sufficient rate of progress, City may, in its sole discretion, direct DBE 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 DBE fails to comply with City’s directive in this regard, City may, at DBE’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 DBE’s default.
5.2 Schedule Requirements. All schedules must be prepared using standard, com mercial scheduling software acceptable to the Engineer, and must provide schedules in electronic and paper form as requested.
(A) Baseline (As-Planned) Schedule. Within ten calendar days following City’s approval of the final Construction Documents, DBE m ust submit to City for review and acceptance a baseline (as-planned) Project schedule using critical path methodology showing in detail how DBE plans to perform and fully complete the Construction Services within the Contract Time, including labor, equipment, materials, and fabricated items. The baseline schedule for Construction Services must show the order of the major items of Work and the dates of start and completion of each item, including when the materials and equipment will be procured. The schedule must also include the work of all trades, reflecting anticipated labor or crew hours and equipment loading for the construction activities, and must be sufficiently comprehensive and detailed to enable progress to be monitored on a day-by-day basis. For each activity, the baseline schedule must be dated, provided in the format specified in the Contract Documents or as required by City, and must include, at a minimum, a description of the activity, the start and completion dates of the activity, and the duration of the activity.
(1) Specialized Materials Ordering . Within five calendar days following issuance of the Notice to Proceed with Construction Services, DBE must order any specialized material or equipment for the Work that is not readily available from material suppliers. DBE must also retain documentat ion 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 su bmitted as required below, to assure completion of the Work within the Contract Time. DBE 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 DBE’s schedules will not operate to waive or limit DBE’s duty to complete the Project within the Contract Time, nor to waive or limit City’s right to assess liquidated damages for DBE’s unexcused failure to do so.
(C) Progress Schedules. After City accepts the final baseline schedule with no exceptions, DBE must submit an updated progress schedule and three-week look-ahead 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
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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. DBE 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 co mpletion dates for each task. The number of days between those dates w ill be designated as the “float.” Any float belongs to the Project and may be allocated by the Project Manager 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 DBE 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 or deduct up to ten percent from payment(s) otherwise due to DBE until the exceptions are resolved, the schedule is corrected and resubmitted, and City has accepted the schedule. In addition, DBE’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 DBE is out of compliance, subject only to the limits of Public Contract Code section 7102.
(D) Recovery Schedule. If City determines that the Work is more than one w eek behind schedule, within seven days following written notice of such determination, DBE must submit a recovery schedule, showing how DBE in tends to perform and complete the Work within the Contract Time, based on actual progress to date.
(E) Effect of Acceptance. DBE 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 DBE’s unexcused delay in com pleting the Work within the Contract Time.
(F) Posting. DBE 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 th e 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 D BE’s time or cost to perform the Work.
(H) Authorized Working Days and Times. With respect to the Construction Services performed at the Project site, DBE 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 C ity. City reserves the right to charge DBE 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 DBE becomes aware of any actual or potential de lay affecting the critical path, DBE must promptly notify the City Engineer in writing, regardless of the
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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 DBE encounters “Excusable Delay,” which is an unavoidable delay in completing the Work within the Contract Time due to causes completely beyond DBE’s control, and which DBE could not have avoided or mitigated through reasonable care, planning, foresight, and/or diligence, provided that DBE 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, unforesee able actions of third parties, encountering unforeseeable hazardous materials, unf oreseeable site conditions, or suspension for convenience under Article 13. The Contract Time will not be extended based on circumstances which will not unavoidably d elay completing the Work within the Contract Time based on critical path analysis.
(C) Non-Excusable Delay . Delay which DBE could have avoided or mitigated through reasonable care, planning, foresight and/or diligence is “Non-Excusable Delay.” DBE is not entitled to an extension of Contract Time or any compensation for Non- Excusable 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) DBE’s failure to order equipment and materials sufficiently in advance of the time needed for completion of the Work within the Contract Time;
(3) DBE’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 DBE could have as certained from reasonably diligent inspection of the Project site or review of the Contract Documents or other information provided or available to DBE;
(5) DBE’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 DBE’s Subcont ractors or suppliers;
(7) the time required to respond to excessive RFIs (see Section 2.7(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 DBE’s duties pursuant to the Contract Documents, including correction of defective Work, extra inspections or testing due to non-compliance with Contract requirements, safety
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compliance, environmental compliance, or rejection and return of defective or deficient submittals.
(D) Compensable Delay. Pursuant to Public Contract Code § 7102, in additio n to entitlement to an extension of Contract Time, DBE 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”). DBE is not entitled to an extension of Contract Time or recovery of costs for Compensable Delay that is concurrent with Non-Excus able Delay. Delay due to Weather Delay Days in excess of normal for a given month, as set forth in Section 5.3(C), is not Compensable Delay, and will only entitle DBE to an extension of time commensurate with the time lost due to such delay.
(E) Concurrent Delay. DBE is not entitled to an extension of Contract Time or recovery of costs for any Compensable Delay that is concurrent with Non-Excusable Delay.
(F) Weather Delay. A “Weather Delay Day” is a Working Day during which DBE 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 cleanup required due to adverse weather. Determination of what constitutes critical path Work scheduled for that day will be based on the most current, City-approved schedule.
(1) Based on historic records for the Project locat ion from the Western Regional Climate Center, DBE’s schedule should assu me 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) DBE will be entitled to a non-compensable exten sion of the Contract Time for each Weather Delay Day in excess of the normal Weather Delay Days within a given month, as set forth in Section 5.3(F)(1) above, subject to the following limitations:
a. DBE must fully comply with the applicable proce dures in Article 5 and 6 of these General Conditions regarding request s to modify the Contract Time.
b. Normal Weather Delay Days which do not occur dur ing a given month do not carry over to another month.
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c. DBE will not be entitled to an extension of time for a Weather Delay Day to the extent DBE is responsible for concurrent delay on that day.
d. DBE must take reasonable steps to mitigate the c onsequences of Weather Delay Days, including prudent workforce management and protecting the Work, Project Site, materials, and equipment.
(G) Recoverable Costs. DBE is not entitled to compensation for Excusable D elay unless it is Compensable Delay, as defined above. D BE is entitled to recover only the actual, direct, reasonable, and substantiated costs (“Recoverable Costs”) for each working day that the Compensable Delay prevents DBE 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.
(H) Request for Extension of Contract Time or Recoverab le Costs. A request for an extension of Contract Time or any associated Recoverable Costs must be submitted in writing to City within 14 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 p ossible, and to facilitate cost- efficient administration of the Project and timely performance of the Work. Any request for an extension of Contract Time or Recoverable Costs that does not strictly comply with all of the requirements of Article 5 and Article 6 will be deemed waived.
(1) Required Contents. The request must include a detailed description of the cause(s) of the delay, and must also describe the measures that DBE 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 DBE’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 DBE believes it is entitled to Recoverable Costs for Compensable Delay, the request must specify the amo unt 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 extensio n of Contract Time will be the number of calendar days, if any, by which an Excusable Delay or a Compensable Delay exceeds a concurrent Non-Excusabl e Delay. DBE 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
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Completion. The time impact analysis must be submitted in a form or format acceptable to City.
(4) Burden of Proof. DBE has the burden of proving that: (a) the delay w as an Excusable or Compensable Delay, as defined above; ( b) DBE has made reasonable efforts to mitigate the delay and its schedule and cost impacts; (c) the delay will unavoidably result in delaying Final Completion; and (d) any Recoverable Costs claimed by DBE were actually incurred and were reasonable under the circumstances.
(5) Legal Compliance. Nothing in this provision 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 no t operate as a waiver of City’s right to assess liquidated damages for Non-Excusable Delay.
(7) Dispute Resolution. In the event of a dispute over entitlement to an ex tension of Contract Time or compensation for Recoverable Co sts, DBE may not stop working pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work.
DBE’s sole recourse for an unresolved dispute based on City’s rejection of a Change Order request for an extension of Contract T ime 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 DBE fails to achieve Final Completion within the Contract Time, City will charge DBE in the amounts specified in the Contract for each day Final Completion is delayed beyond the Contract Time, as liquidated damages and not as a penalty.
(A) Liquidated Damages. Liquidated damages will not be assessed for any Excusable Delay, as set forth above.
(B) Milestones/Deadlines. Liquidated damages will also be separately assesse d for failure to meet milestones or deadlines 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 DBE, including progress payments, Final Payment, or unreleased retention. If there are insufficient Contract funds remaining to cover the full amount of liquidated damages assesse d, City is entitled to recover the balance from DBE 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 Project and will not operate as a waiver of City’s right to assess liquidated damages for DBE’s Non-Excusable Delay in achieving Final Completion.
(E) No Limitation on Other Remedies. City’s right to liquidated damages under this Section applies only to damages arising from DBE’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 DBE.
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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 . Change in the Work pursuant to this Article 6 will not operate to release, limit, or abridge DBE’s warranty obligations pursuant to Article 11 or any obligations of DBE’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, deletion or modification of portions of the Work, or other modifications determined by City, acting in its sole discretion, to be in City’s best interest. Pursuant to section 3.23.170 of the Cupertino Municipal Code, City reserves the right to delete up to 25% of the Work. Any change in the Work, whether directed by City or pursuant to DBE’s request for a Change Order under Section 6.2 below, will not be a valid and binding change to the Contract unless it is formalized in a Change Order, which may include commensurate changes in the Contract Price or Contract Time as applicable. DBE must promptly comply with City- directed changes in the Work in accordance with the original Contract Documents, even if DBE and City have not yet reached agreement as to a djustments to the Contract Price or Contract Time for the change in the Work or for the Extra Work. DBE is not entitled to extra compensation for cost savings resulting from “value engineering” pursuant to Public Contract Code section 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, DBE 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 DBE 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, DBE 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 DBE 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. DBE’s sole recourse for an unresolved dispute related to changes in the Work or performance of any Extra Wor k is to comply with the dispute resolution provisions set forth in Article 12, below.
(C) Extra Work. City may direct DBE to perform Extra Work related to the Project.
DBE must promptly perform any Extra Work as directe d or authorized by City in accordance with the original Contract Documents, ev en if DBE and City have not yet reached agreement on adjustments to the Contract Pr ice or Contract Time for such Extra Work. DBE 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 DBE perform s Extra Work, or Work that DBE
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contends is Extra Work, DBE 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 City Engineer will make any adjustments to DBE’s Extra Work Report(s) based on the City Engineer’s records of the Work. When an Extra Work Report(s) is agreed on and signed by both City and DBE, the Extra Work Report(s) will become the basis for payment under a duly authorize d and signed Change Order. Failure to submit the required documentation by close of business on the next Working Day is deemed a full and complete waiver for any change in the Contract Price or Contract Time for any Extra Work performed that day.
(D) Minor Changes and RFIs. Minor field changes, including RFI replies from City, that do not affect the Contract Price or Contract Time and that are approved by the City Engineer acting within his or her scope of authority, do not require a Change Order. By executing an RFI reply from City, DBE 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. DBE’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 DBE’s sole expense, and may deduct the cost from the Contract Price.
6.2 DBE Change Order Requests. DBE must submit a request or proposal for a change in the approved Construction Documents or a change in the Contract Price or Contract Time, based on unforeseen circumstances or change i n scope, 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 Project Manager within ten calendar days of the date that DBE 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 DBE propose the terms of a Change Ord er, unless otherwise specified in City’s request, DBE must provide the Project Manager 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 City Engineer.
(B) Required Contents. Any Change Order request or proposal submitted by D BE 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.
(D) Required Form. DBE must use City’s form(s) for submitting all Chan ge Order requests or proposals, unless otherwise specified by City.
(E) Certification. All Change Order requests must be signed by DBE and must include the following certification:
“The undersigned DBE certifies under penalty of perjury that its statements and representations in this Change Order request are true and correct. DBE
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warrants that this Change Order request is comprehe nsive and complete, and agrees that any costs, expenses, or time extension request not included herein will be deemed waived. DBE understands that submiss ion of claims which have no basis in fact or which DBE knows to be false may violate the False Claims Act, as set forth in Government Code § 12650 et seq.”
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 DBE. For Work items or components that are deleted in their entirety, DBE will only be entitled to compensation for those direct, actual, and documented costs (including restocking fees), reasonably incurred before DBE 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 DBE in the form of unit prices, either in the Proposal or in a schedule of values, will apply if such unit pricing has previously been provided for the affected Work and accepted by City. No additional markup for overhead or profit will be added to the calculation.
(B) Lump Sum. A mutually agreed upon lump sum for the affected Wo rk 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 DBE’s performance of the Work and subject to a 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 maximu m markup rate of 15%:
(1) All direct labor costs provided by DBE or its general contractor, excluding superintendence, plus 15% for overhead and profit;
(2) All direct material costs provided by DBE or its general contractor, including sales tax, plus 15% for overhead and profit;
(3) All direct plant and equipment rental costs provided by DBE or its general contractor, plus 15% for overhead and profit;
(4) All direct subcontract costs plus 10% markup for overhead and profit for Work performed by Subcontractors; and
(5) Increased bond or insurance premium costs comp uted 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 DBE has requested, the value of deleted or changed 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 amount of compensation or added time that the City believes is merited. DBE’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. DBE waives its entitlement to any increase in the Contract Price or Contract Time if DBE fails to fully comply with the provisions of this Article. DBE 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. DBE must obtain and pay for all permits, fees, or licenses required to perform the Work, unless otherwise indicated in the Contract Documents. DBE must cooperate with and provide notifications to government agencies with jurisdiction over the Project, as may be required. DBE must provide City with copies of all records of permits and permit applications, payments of required fees, and any licenses, required for the Work. DBE, members of the DB Team, and Subcontractor(s) must obtain a City Business License before beginning Work on the Project, unless its sole business contract within the City is the sale of goods or services to the City itself.
(B) Taxes. DBE must pay for all taxes on labor, material and e quipment, except Federal Excise Tax to the extent that City is exempt from Federal Excise Tax.
7.2 Temporary Facilities. DBE must provide, at DBE’s sole expense, any and a ll temporary facilities, including onsite office, sanitary facilities, storage, scaffolds, barricades, walkways, and any other temporary structure required to safely perform the Work along with any utility services incidental thereto. 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. DBE 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. DBE must install and maintain the power, water, se wer and all other utilities required for the Project site, including the piping, wiring, internet and wifi connection, and any related equipment necessary to maintain the temporary facilities.
(B) Removal and Repair. DBE must promptly remove all such temporary facilit ies when they are no longer needed or upon completion of the Work, whichever comes first.
DBE must promptly repair any damage to City’s prope rty 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.
(C) Additional Requirements. Additional provisions pertaining to temporary facilities may be included in the Bridging Documents or Special Conditions
7.3 Noninterference and Site-Management. DBE 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. DBE must a lso minimize disruption of access to private property in the Project vicinity. DBE 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 blockin g access to a private driveway or parking lot, DBE must provide effective notice to the affected parties at least 2 working days in advance of the pending closure and allow them to remove vehicles. Private
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driveways, residences and parking lots must have access to a roadway during non-Work hours.
(A) Offsite Acquisition. Unless otherwise provided by City, DBE 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, DBE may need to make arrangements with the nearby property owner(s) to s ecure the space. Before using or occupying any property owned by a third party, DBE 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. DBE 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. Any traffic management plans required to be submitted, must be prepared by a California License Professional including Registration Stamp and reviewed and accepted by the City prior to installation of any traffic management controls.
7.4 Signs. No signs may be displayed on or about City’s prope rty, except signage which is required by Laws or by the Contract Documents, without City’s prior written approval as to size, design, and location. DBE must furnish and install all signs at DBE’s sole expense, including signs required by Laws or the Contract Documents.
7.5 Project Site and Nearby Property Protections.
(A) General. DBE 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 notice of completion has been recorded. Except as specifically authorized by City, DBE must confine its operations to the area of the Project site indicated in the Bridging Documents. DBE is liable for any damage caused by DBE 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.
In addition, DBE is responsible for damage caused by its failure to adequately secure the Work or any Worksite.
(1) Subject to City’s approval, DBE 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) Cupertino Sanitary District and the City of Sunnyvale own and operate wastewater systems within City and they may not be interrupted. If the Work disrupts existing sewer facilities, DBE must immediately notify City to determine who owns the system and establish a plan, subject to the systems owner’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) DBE 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.
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(4) If directed by City Engineer, DBE must promptly repair or replace any property damage, as specified by the City Engineer. However, acting in its sole discretion, City may elect to have the property damage remedied otherwise, and may deduct the cost to repair or replace the damaged property from payment otherwise due to DBE.
(5) DBE 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, DBE 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. DBE 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 DBE encounters facilities, utilities, or other unknown conditions not shown on or reasonably inferable from the Bridging Documents, record drawings, or other documents or information made av ailable to DBE, or which are not apparent from inspection of the Project site, DBE must immediately notify the City and promptly submit a Request for Information to obtain further direction from the City Engineer. DBE must avoid taking any action which co uld cause damage to the facilities or utilities pending further direction from the City Engineer. The City Engineer’s written response will be final and binding on DBE. If the City Engineer’s subsequent direction to DBE affects DBE’s cost or time to perform the Work, DBE may submit a Change Order request as set forth in Article 6 above.
(D) Support; Adjacent Properties. DBE must provide, install, and maintain all shoring, bracing, and underpinning necessary to provide support to City’s property and adjacent properties and improvements thereon. DBE m ust provide notifications to adjacent property owners as may be required by Laws. See also, Section 7.14, Trenching of Five Feet or More.
(E) Notification of Property Damage. DBE must immediately notify the City of damage to any real or personal property resulting from Work on the Project. DBE must immediately provide a written report to City of any such property damage 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 DBE 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 DBE is required to file an accident report with another government agency, DBE will provide a copy of the report to City.
7.6 Materials and Equipment.
(A) General. Unless otherwise specified, all materials and equipment required for the Work must be new, free from defects, and of the best grade for the intended purpose, and furnished in sufficient quantities to ensure the proper and expeditious performance of the Work. DBE 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. DBE is responsible for all shipping,
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handling, and storage costs associated with the materials and equipment required for the Work and is responsible for providing security and protecting the Work and all of the required materials, supplies, tools and equipment at DBE’s sole cost until City has formally accepted the Project as set forth in Section 11.1, Final Completion. DBE 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, DBE is solely responsible for the proper examination, handling, storage, and installation of such items in accordance with the Contract Documents. DBE must promptly 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. DBE i s solely responsible for any loss of or damage to such items which occurs while the items are in DBE’s custody and control, the cost of which may be offset from the Contract Price and deducted from any payment(s) due to DBE.
(C) Existing City Equipment. DBE will carefully remove all existing equipment from the Worksite. If the City specifies or indicates that equipment is to be salvaged and reused or to remain the property of City then the DBE will reuse or return the equipment to the City. DBE will store and protect salvaged equipment specified to be reused in the Work. DBE will deliver to the City in good condition the equipment that is to remain City property but not be reused in the Work.
(1) If an item specified to be salvaged is damaged during its removal, storage, or handling through carelessness or improper procedures, then DBE will replace that equipment in kind or with a new item. For those items specified to be salvaged DBE may choose to instead furnish and install new equipment, in which case the original, removed items will become DBE’s property. Existing materials and equipment removed by DBE will only be reused in the Work if so specified or indicated by the City.
(D) Intellectual Property Rights. DBE must, at its sole expense, obtain any authorization required for use of patented or copyright-protected materials, equipment, devices or processes that are incorporated into the Work. DBE’s indemnity obligation in Article 4 applies to any claimed violation of intellectual property rights.
(E) Certificate of Compliance. When a Certificate of Compliance is specified, or for any material or item (“material”) produced or assembled outside of the United States, DBE must submit a Certificate of Compliance before incorporating that material into the Project. A Certificate of Compliance must be submitted for each lot of material delivered to the Project site, and in a form acceptable to the City Engineer, identifying the material, its source, and the lot. Each Certificate of Compliance must be signed by the material producer stating that the material fully complies with the applicable requirements of the Specifications. Submission of a Certificate of Compliance will not limit DBE’s continuing obligation to use only materials that conform with the requirements of the Contract Documents. Any materials furnished pursuant to a Certificate of Compliance may be inspected or tested at any time by City, subject to the inspection and testing provisions of Article 7, and defective or non-conforming material may be rejected at any time, even if already installed.
(F) Site Materials. Except as otherwise specified, City retains full ownership of and all rights to use any water, soil, stone, gravel, sand, minerals or other materials (“Site Materials”) on City property, including the Project site, and including any site materials that have been extracted, excavated, or otherwise affected or made accessible by performance of the Work. However, City, acting in its sole discretion, may provide written
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authorization in the Special Conditions or in the Specifications or in a Change Order for DBE to make use of or incorporate specified Site Materials in the Work.
7.7 Testing and Inspection.
(A) General. All materials, equipment, and workmanship used in t he 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, or at the plant of a manufacturer of materials or items to be incorporated into the Work. All manufacturers’ application or installation instructions must be provided to the Inspector at least ten days prior to the first such application or installation. DBE 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 DBE’s duty to complete the Work in accordance with the Contract Documents.
(B) Scheduling and Notification. DBE must cooperate with City in coordinating the inspections and testing. DBE must submit samples of materials, at DBE’s expense, and schedule all tests required by the Contract Documents in time to avoid any delay to the progress of the Work. DBE must notify the City Engineer in writing no later than two Working Days before any inspection or testing is being requested and must provide timely notice to all necessary parties as specified in the Contract Documents. If DBE schedules an inspection or test beyond regular Work hours, or on a Saturday, Sunday, or recognized City holiday, DBE must seek, in writing, City Engineer’s approval at least two Working Days in advance. If approved, DBE must reimburse City for the cost of the overtime inspection or testing. Such costs, including the City’s hourly costs for required personnel and Inspector, may be deducted from payme nts otherwise due to DBE.
(C) Responsibility for Costs. City will bear the initial cost of inspection and testing to be performed by independent inspections and/or testing consultants retained by City, subject to the following exceptions:
(1) DBE will be responsible for the costs of any subsequent inspections and/or tests which are required to substantiate compliance with the Contract Documents, and any associated remediation costs.
(2) DBE will be responsible for inspection and testing costs, at the rate charged by the consultant retained by the City to provide inspection and testing services, and for inspection and testing time lost because the Work is not ready or DBE 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 DBE prior to the inspection or testing, DBE 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) DBE is responsible for properly shoring all compaction test sites deeper than five feet below grade, as required under Section 7.14 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 DBE, at DBE’s sole expense, even if that Work or material was previously inspected or included in a progress paym ent.
(D) DBE’s Obligations. All Work and materials must conform to the lines, grades, typical cross sections, dimensions, material requirements, and tolerances shown or
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described by the Construction Documents. City, acti ng in its sole discretion, will determine whether Work or materials conform to the Construction Documents, including allowable deviations. City’s determination as to conformity or allowable deviations is final.
DBE 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 DBE of its obligations to perform the Work as specified in the Construction Documents. Any Work done without the required inspection(s) will also be subject to rejection by City. Any Work that fails to comply with the requirements of the Contract Documents must be promptly repaired, replaced, or corrected by DBE, at DBE’s sole expense, even if that Work was previously inspected or included in a progress payment. DBE is solely responsible for any delay occasioned by remediation of noncompliant Work. Inspection of the Work does not in any way relieve DBE of its obligations to perform the Work as specified.
(E) Distant Locations. If required off-site testing or inspection must be conducted at a location more than 100 miles from the Project site, DBE is solely responsible for the additional travel costs required for testing and/or inspection at such locations.
(F) Plant Inspection. If specified in the Contract Documents, or upon wr itten request by City, DBE must use its best efforts to facilitate and arrange for City’s inspection, sampling or testing of materials or items required for the Work at the plant or facility from which the materials or items are to be obtained. DBE’s best efforts must include contacting the producer or manufacturer on a timely basis to schedule inspection by City’s selected representative, including appropriate access and any safety equipment, all at no cost to City. The inspection must be scheduled sufficiently in advance of the planned shipping or production date to allow for alternative arrangements if the City determined that the materials or items do not meet the requirements of the Specifications. Nothing in this provision obligates City to inspect materials or items at the source plant or facility.
(G) Final Inspection. The provisions of this Section 7.7 also apply to final inspection under Article 11, Completion and Warranty Provisions.
7.8 Project Site Conditions and Maintenance. DBE 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. DBE 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) Protection of Existing Property, Structures, and Utilities . If the Specifications indicate existing above-grade and below-grade structures, drainage lines, storm drains, sewers, water, gas, electrical, phone and data cable, and other similar items or utilities known to the City, then DBE will locate these known existing installations before proceeding with trenching or other operations which may cause damage, will maintain them in service where appropriate, and will repair any damage caused to them by the Work, at no increase in the Contract Price.
(1) DBE may temporarily mark or paint the ground, p avement, sidewalk, or any other improvements, but must not do so in a public right-of-way or on the Project site more than 30 days prior to the commencement of excavation work performed in connection with an installation. Any mark or paint must be removed from all surfaces, including any decorative work, within 30 days of the completion of the excavation work. DBE is responsible for any expense associated with damages caused by the DBE’s mark or paint, including the removal thereof.
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(2) DBE will record the location and existence of pavement markers and striping prior to construction, and will provide such records to the City Engineer. DBE will replace in kind any permanent paving marker or striping that it removes or damages, or as marked in the Specifications, at its expense.
(B) Air Emissions Control . DBE must not discharge smoke or other air contaminants into the atmosphere in violation of any Laws.
(C) Dust and Debris . DBE must minimize and confine dust and debris res ulting from the Work. DBE 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 City Engineer notifies DBE that an airborne nuisance exists. The City Engineer may direct that DBE provide an approved water-spraying truck for this purpose. If water is used for dust control, DBE will only use the minimum necessary. DBE must take all necessary steps to keep waste water out of streets, gutters, or storm drains.
See Section 7.19, Storm Water Pollution Control. If City determines that the dust control is not adequate, City may have the work done by oth ers and deduct the cost from the Contract Price. DBE will immediately remove any exc ess excavated material from the Project site and any dirt deposited on public streets.
(D) Clean up. Before discontinuing Work in an area, DBE must clea n the area and remove all debris and waste along with the construction equipment, tools, machinery, waste and surplus materials.
(1) Except as otherwise specified, all excess Proj ect materials, and the materials removed from existing improvements on the Project site with no salvage value or intended reuse by City, will be DBE’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. DBE 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.
(E) Disposal. DBE must dispose of all Project debris and waste materials in a safe and legal manner. DBE may not burn or bury waste ma terials on the Project site. DBE 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.
(F) Completion. At the completion of the Work, DBE 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, DBE 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. DBE must ensure that all parts of the construction are properly joined with the previously existing and adjacent improvements and conditions.
DBE must provide all cutting, fitting and patching needed to accomplish that requirement.
DBE 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 improveme nts, and the condition, finish and dimensions must match the previously existing improvements. DBE must restore to original condition all property or items that are not designated for alteration under the
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Contract Documents and leave each Worksite clean an d ready for occupancy or use by City.
(G) Non-Compliance. If DBE fails to comply with its maintenance and cle anup 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 DBE.
7.9 Instructions and Manuals. DBE must provide to City one bound [hard] copy and an electronic PDF copy 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. The instructions and manuals, along with any required guarantees, must be delivered to City for review prior to requesting final inspection pursuant to Section 11.1(A), unless otherwise specified.
(B) Training. DBE or its Subcontractors must train City’s personn el in the operation and maintenance of any complex equipment or systems as a condition precedent to Final Completion, if required in the Contract Documents.
7.10 As-built Drawings . DBE and its Subcontractors must maintain on the W orksite a separate complete set of the final City-approved Construction Documents, including drawings to be used solely for the purpose of recording changes made in any portion of the Work 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 oc cur, on a daily basis if necessary. Progress payments may be reduced, in whole or in part, until the as-built drawings are brought up to date to the satisfaction of City, and the City may choose to withhold the estimated cost for City to have the as-built drawings prepared from payments otherwise due to DBE. 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 drawings must be shown in detail. The exact location of all main runs, whether piping, conduit, ductwork or drain lines, must be shown by dimension and elevation. The location of all buried pipelines, appurtenances, or other improvements must be represented by coordinates and by the horizontal distance from visible above-ground improvements.
(B) Final Completion. DBE must verify that all changes in the Work are de picted in the as-built drawings and must deliver the complete set of as-built drawings to the City Engineer for review and acceptance as a condition precedent to Final Completion and Final Payment.
7.11 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. DBE 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, DBE will be responsible for costs resulting from damage to
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identified or reasonably identifiable utilities due to DBE’s negligence or failure to comply with the Contract Documents, including the requirements in this Article 7.
(B) Unidentified Utilities . Pursuant to Government Code § 4215, if, during the performance of the Work, DBE discovers utility facilities not identified by City in the Contract Documents, DBE must immediately provide wr itten notice to City and the utility.
City assumes responsibility for the timely removal, relocation, or protection of existing main or trunk line utility facilities located on the Project site if those utilities are not identified in the Contract Documents. DBE will be compensated in accordance with the provisions of the Contract Documents for the costs of locating, repairing damage not due to DBE’s failure to exercise reasonable care, and removing or relocating such utility facilities not indicated in the Contract Documents with reasonable accuracy, and for equipment on the Project necessarily idled during such work. DBE will not be assessed liquidated damages for delay in completion of the Work, to the extent such delay was caused by City’s failure to provide for removal or relocation of the utility facilities.
7.12 Notice of Excavation.
DBE must comply with all applicable requirements in Government Code § 4216.2 through 4216.5, which are incorporated by reference herein. Government Code § 4216.2 requires that, except in an emergency, DBE 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.
DBE may not begin excavation until it has obtained and submitted to City Engineer an inquiry identification number from Underground Services Alert.
7.13 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 following provisions in this Section apply to the Work and the Project.
(A) Duty to Notify. DBE must promptly, and before the following condit ions are disturbed, provide written notice to City if DBE finds any of the following conditions:
(1) Material that DBE 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 DBE prior to the deadline for submitting Proposals; 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 do materially differ or do involve hazardous waste, and cause a decrease or increase in DBE’s cost of, or the time required for, performance of any part of the Work, City will issue a Change Order.
(C) Disputes. In the event that a dispute arises between City an d DBE regarding any of the conditions specified in subsection (A) above, DBE will not be excused from any scheduled completion date provided for in the Contract Documents, but must proceed with all Work to be performed under the Contract. DBE will retain any and all rights
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provided either by the Contract or by Laws which pertain to the resolution of disputes between DBE and City.
7.14 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.
7.15 New Utility Connections. City will pay connection charges and meter costs for new permanent utilities required by the Contract Documents, if any. DBE 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.
7.16 Lines and Grades.
DBE is required to use any benchmark provided by the City Engineer. Unless otherwise specified in the Contract Documents, DBE must provi de all lines and grades required to execute the Work. DBE 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. DBE must notify the City Engineer of any discrepancies found between DB E’s staking and grading and information provided by the Contract Documents. Upo n completion, all Work must conform to the lines, elevations, and grades shown in the Plans, included any changes directed by a Change Order.
7.17 Historic or Archeological Items.
(A) DBE’s Obligations. DBE must ensure that all persons performing Work at the Project site are required to immediately notify the Inspector or Project Manager, upon discovery of any potential historic or archeological items, including historic or prehistoric ruins, burial grounds, 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, DBE 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, suspension of Work required due to discovery of Historic or Archeological Items will be treated as Excusable Delay pursuant to Article 5, or as a suspension for convenience under Article 13.
7.18 Recycling and Waste Disposal.
(A) Approved Recycling Facility. DBE must dispose of all recyclable materials at a recycling facility approved by the City Engineer.
(B) Inert Solids and Plant Materials. DBE must remove all asphalt concrete, Portland cement concrete, aggregate base material, inert solids and any plant material from the Project site and deposit at an approved recycling facility. DBE must conform the above material to an acceptable size and composition for recycling. (C) Recyclable Materials. DBE must recycle at least 65% of all materials at an approved recycling facility.
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(D) Waste Management Plan and Disposal Report. If the California Green Building Standards Code applies to the Project, DBE must submit to the City a waste management plan prior to starting work. A disposal report is required upon completion of the Project, for materials that are hauled by DBE or by the City’s franchised hauler. If a waste management plan is required, it must be available throughout the duration of the Project for examination by the City. Electronic submittals are acceptable. The waste management pla n must include the following:
(1) Project title and number;
(2) identify the construction methods that will be employed to reduce waste; (3) Type of material(s) to be recycled, salvaged or landfilled; (4) Specify if the waste will be sorted onsite or b ulk-mixed; and (5) Name and address of recycling facility(ies) and landfill(s) to be used;
The disposal report must include the following:
(1) Project title;
(2) Date and time of disposal;
(3) Truck number;
(4) Type of material recycled, salvaged, or landfil led; (5) Weight of material recycled, salvaged, or landf illed; (6) Name and address of recycling facility or landf ill; (7) Certification or weight tags from facility;
(8) Weight tags for all material landfilled; and
(9) If the recycling goal is not met, provide an ex planation, to be approved by City, for why it was not met.
(E) Collection of Waste and Debris. Collection of garbage, mixed non-organic recyclables, organic waste, and any construction or demolition materials in debris boxes, compactors, or bin-by-the-day services that are not City franchisees or otherwise agents of the City is prohibited. Notwithstanding the above, DBE must dispose of debris from the Project in one of the following:
(1) Franchised hauler bin;
(2) A bin owned by DBE or a demolition Subcontracto r provided that it is hauled by an employee of the DBE or the demolition Subcontractor and by a vehicle owned and registered to the DBE or the demolition Subcontractor; or (3) Private truck with a bed.
(F) Recycling Containers. The disposal of garbage in containers designated fo r compostable waste recycling is prohibited.
7.19 Storm Water Pollution Control.
DBE must not pollute the storm drainage system or any waterways or tributaries with waste materials, pollutants, or other harmful materials. DBE and its Subcontractors must at all times in the performance of the Work comply with all applicable Laws concerning pollution of waterways.
(A) Best Management Practices. DBE must remove any waste found or generated at the Project site using the appropriate Best Management Practices (“BMPs”) and must properly dispose of the waste or pollutants off-site. If solid or liquid waste materials or pollutants from the Project enter the storm drain system, DBE must immediately notify the City’s Environmental Services Division, and thoroughly clean up the affected catch basins, storm sewer, and storm manho les to the satisfaction of the
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City Engineer. If DBE fails to meet the requirements of this Section, the City may issue a stop-work notice and take necessary action to require DBE to set up preventive measures or clean up the storm drainage system. DBE will bear all costs related to the stop-work action and corrective work and will not be entitled to an extension of the Contract Time for any resulting delay.
(B) Stormwater Permit. DBE must comply with all applicable conditions of the State Water Resources Control Board National Pollutant Discharge Elimination System (“NPDES”) General Permit for Storm Water Discharges Associated with Construction and Land Disturbance Activities (“Stormwater Permit”).
(1) Record Copy of Stormwater Permit. If required for the Work, a copy of the Stormwater Permit is on file in City’s principal administrative offices, and DBE must comply with the same without adjustment of the Contract Price or the Contract Time. DBE must timely and completely submi t required reports and monitoring information required by the conditions of the Stormwater Permit.
DBE also must comply with all other applicable Laws governing discharge of stormwater, including applicable municipal stormwat er management programs.
(2) Failure to Comply with Stormwater Permit. DBE must pay all costs and liabilities imposed by Laws as a result of DBE's failure to comply with the provisions set forth in the Contract Documents. Such costs and liabilities include, but are not limited to, fines, penalties, and damages, whether assessed against the City or DBE, including those levied under the Federal Clean Water Act and the State Porter Cologne Water Quality Act.
(C) Storm Water Pollution Prevention Plan Preparation . DBE must incorporate the following BMPs, as applicable, into a site-specific Storm Water Pollution Prevention Plan (“SWPPP”), if required for the Project. The SWPPP must be approved by the City Engineer prior to construction.
(1) Non-Hazardous Material/Waste Management.
a. DBE must designate areas of the Project site sui table for material delivery, storage, and waste collection that, to the maximum extent practicable, are near construction entrances and away from catch basins, gutters, drainage courses, and creeks.
b. DBE must store granular material at least 10 fee t away from catch basin and curb returns.
c. DBE must prevent granular material to enter the storm drains or creeks. d. During wet weather and when rain is forecast in the next 24 hours, DBE must cover granular material with a tarpaulin and surround the material with sandbags or other weights to ensure that tarpaulin does not expose the material during wind and rain.
e. DBE will use minimal amounts of water to control dust on a daily basis or as directed by the City Engineer.
f. At the end of each working day or as directed by the City, DBE must clean and sweep roadways and on-site paved areas of all materials on or adjacent to the Worksite.
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g. Throughout the working day and at the end of eac h working day, or as directed by the City, DBE must pick up litter, trash, scrap, waste material, and debris from the Project site and any adjacent sidewalk, curb, and gutter area. DBE must keep the site and perimeter free from cigarette butts and other litter.
h. DBE must ensure that lids for trash receptacles are kept closed and that trash receptacles are maintained in a manner that prevents overflows. i. DBE must maintain a clean and litter-free area a round all trash receptacles on the site.
j. DBE will not use water to flush down streets in place of street sweeping or other dry methods of spill cleanup such as applying absorbent, sweeping up material and disposing it in a waste bin.
k. In addition to DBE’s obligation to recycle mater ials pursuant to Section
7.18 of the General Conditions, DBE must, to the maximum extent practicable, reuse or recycle any useful construction materials generated during the Project.
l. DBE must inspect any waste and recycling recepta cles for leaks, and must contact the City’s trash hauling franchisee to immediately replace or repair any leaking receptacles.
m. DBE will not discharge water on-site as a result of cleaning recycling or trash receptacles.
n. DBE must arrange for regular waste collection be fore receptacles overflow, and must adjust the frequency of service or the receptacle size as needed to ensure that overflows do not occur.
(2) Hazardous Material/Waste Management.
a. DBE must label and store all hazardous materials including but not limited to pesticides, paints, thinners, solvents, and fuels; and all hazardous wastes, including but not limited to waste oil and antifreeze; in accordance with the City’s Hazardous Materials Storage Ordinance and all applicable Laws.
b. DBE must keep an accurate, up-to-date inventory, including Materials Safety Data Sheets (“MSDSs”), of hazardous material s and hazardous wastes stored on-site.
c. When rain is forecast within 24 hours or during wet weather, the DBE must not apply chemicals such as pesticides and cleaners, or any materials that may potentially enter the storm drain system, in outside areas.
d. DBE must not over-apply pesticides or fertilizer s and must follow materials manufacturer’s instructions regarding uses, protective equipment, ventilation, flammability, and mixing of chemicals. Over- application of a pesticide constitutes a “label violation” subject to an enforcement action by the Santa Clara County Agriculture Department. e. DBE must arrange for regular hazardous waste col lection to comply with all applicable time limits on storage of hazardous wastes. f. DBE must dispose of hazardous waste only at auth orized and permitted treatment, storage and disposal facilities, and must use only licensed hazardous waste haulers to remove the waste off-site, unless quantities
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to be transported are below applicable threshold limits for transportation specified in state and federal regulations.
g. If DBE’s business office is located in Santa Cla ra County, DBE may dispose of this waste through the Countywide Hazard ous Waste Program. Businesses generating less than 27 gallons or 220 pounds of hazardous waste per month are legally classified as conditionally exempt small quantity generators (“CESQGs”). Information on the CESQG program may be requested by calling the County at ( 408) 299-7300.
(3) Spill Prevention and Control.
a. DBE must keep a stockpile of spill cleanup mater ials, such as rags or absorbents, readily accessible on-site.
b. DBE must immediately contain and prevent leaks a nd spills from entering storm drains, and properly clean up and dispose of the waste and cleanup materials, using dry methods to the extent feasible. If the waste is hazardous, DBE must handle the waste as de scribed in subsection (2) above.
c. DBE will not wash any spilled material into stre ets, gutters, storm drains, or creeks and will not bury spilled hazardous materials. d. DBE must report any hazardous materials spill by calling 911 and must notify the City’s Public Works Environmental Division at 408-777-3354.
(4) Vehicle/Equipment Cleaning.
a. DBE will not perform vehicle or equipment cleani ng on-site or in the street using soaps, solvents, degreasers, steam cleaning equipment, or equivalent methods.
b. DBE must perform vehicle or equipment cleaning, with water only, in a designated, bermed, pervious area that will not allow rinse water to run offsite or into streets, gutters, storm drains, or creeks.
(5) Vehicle/Equipment Maintenance and Fueling.
a. DBE will not perform maintenance and fueling of vehicles onsite. b. DBE must perform maintenance and fueling of equi pment only when necessary, and in a designated, bermed area or over a drip pan that will not allow run-on of storm water or runoff of spills.
c. DBE must use secondary containment, such as a dr ip pan, to catch leaks or spills any time that equipment fluids are dispensed, changed, or poured.
d. DBE must keep a stockpile of spill cleanup mater ials, such as rags or absorbents, readily accessible on-site to clean up drips and spills. e. DBE must clean up leaks and spills of vehicle or equipment fluids immediately and dispose of the waste and cleanup materials as hazardous waste, as described above.
f. DBE will not wash any spilled material into stre ets, gutters, storm drains, or creeks and shall not bury spilled hazardous materials. g. DBE must report any hazardous materials spill by calling 911. After the emergency has been reported, DBE must notify the City’s Public Works Environmental Division.
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h. DBE must inspect vehicles and equipment arriving on-site for leaking fluids and shall promptly repair leaking vehicles and equipment. Drip pans must be used to catch leaks until repairs are made. Shut-off valves on equipment must be working properly.
i. DBE must comply with all applicable Laws for abo ve-ground storage tanks.
(6) DBE Training and Awareness.
a. DBE must train all employees and Subcontractors on the SWPPP requirements contained in these General Conditions.
b. DBE must include appropriate provisions in its s ubcontracts to ensure that these SWPPP requirements are met.
c. DBE must post warning signs in areas treated wit h chemicals. d. DBE must paint City-approved stencil or, prefera bly, apply steel medallions to, any new catch basins with the “No Dumping, Flows to Creek” stencil or medallion markers available from the City’s Public Works Environmental Division.
(7) Activity-Specific Requirements. The following r equirements apply if the Project includes the listed activities.
a. Dewatering or Pumping Operations.
i. DBE must not discharge water to the storm drain system. Water discharges must be directed to a pervious, landscaped, or bioretention area where water will be infiltrated without causing runoff, or routed to the sanitary sewer system after obtaining a permit from Cupertino Sanitary District or Sunnyvale Sanitary, depending on which has jurisdictional authority, or contained using a Baker tank or other means to collect the water for re-use or safe and legal disposal. DBE may contact the City’s Environmental Division for more information on these control measures.
ii. DBE must obtain approval of the City Engineer f or any control measure in advance.
iii. DBE must reuse water for other needs, includin g but not limited to dust control or irrigation, to the maximum extent practicable.
b. Paving Operations.
i. When rain is forecast within 24 hours or during wet weather, the City Engineer may require that paving be delayed for more suitable conditions.
ii. The City Engineer may direct DBE to protect dra inage courses by using control measures, including but not limited to, earth dike, straw bale, and sandbag, to divert runoff or trap and filter sediment. DBE must refer to California Storm Water Best Management Practice Handbook for these control measures.
iii. DBE must place drip pans or absorbent material under paving equipment when not in use.
iv. DBE must securely cover catch basins and manhol es when paving or applying seal coat, tack coat, slurry seal, or fog seal.
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v. DBE must remove, clean and reapply or replace ca tch basin covers as often as needed to ensure protection of the storm drain system from any material other than rain.
vi. Before Final Completion, DBE must remove and di spose of all catch basin covers and material trapped by the covers. If DBE fails to remove and dispose of the covers and materials trapped, City reserves the right to delay final inspection and/or deduct monies from payments due DBE to compensate the City for its additional costs for removal and disposal of catch basin protection.
vii. If the paving operation includes an on-site mi xing plant, DBE must comply with Santa Clara County General Industrial Activities Storm Water Permit requirements.
viii. DBE must preheat, transfer or load hot bitumi nous material away from drainage systems or watercourses.
ix. DBE will not sweep or wash down excess sand (pl aced as part of a sand seal or to absorb excess oil) into streets, gutters, storm drains, or creeks. DBE must either collect the sand and return it to the stockpile, or dispose of it in a trash container. DBE will not use water to wash down fresh asphalt concrete pavement.
c. Saw Cutting.
i. DBE must use as little water as possible during saw cutting and grinding operations.
ii. DBE must cover or barricade catch basins using control measures, including but not limited to as filter fabric, straw bales, sandbags, and fine gravel dams, to keep slurry out of the storm drain system. When protecting a catch basin, DBE must ensure that the entire opening is covered. DBE must refer to California Storm Water Best
Management Practice Handbook for these control meas ures. iii. DBE must remove, clean and reapply or replace catch basin covers. iv. Before Final Completion, DBE must remove and di spose of all catch basin covers.
v. DBE must shovel, absorb or vacuum saw cut slurry and pick up the waste prior to moving to the next location or at the end of each working day, whichever is sooner.
vi. If saw cut slurry enters catch basins, DBE must remove the slurry from the storm drain system immediately.
d. Traffic Detector Loop Installation and Repair.
i. DBE must protect nearby storm drain inlets prior to cutting or flushing slot for traffic detector loops. DBE must block or berm around nearby storm drain inlets using sandbags or an equivalent barrier or use absorbent materials such as pads, pillows and socks to contain slurry.
ii. Before Final Completion, DBE must remove all sa ndbags and equivalent barriers and absorbent materials from the site and sweep the area clean and away from the storm drain inlet.
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iii. DBE must clean up residues by sweeping up as m uch material as possible and must dispose of material properly.
e. Concrete, Grout and Mortar Waste Management.
i. DBE must avoid mixing excess amounts of fresh co ncrete or cement mortar on-site.
ii. DBE must store concrete, grout and mortar away from drainage areas and ensure that these materials do not enter the storm drain system.
iii. DBE will not wash out concrete trucks or equip ment into streets, gutters, storm drains, or creeks.
iv. DBE must perform washout of concrete trucks or equipment off-site or in a designated area on-site where the water will flow onto dirt or into a temporary pit in a dirt area. DBE must let the water percolate into the soil and dispose of the hardened concrete in a trash container. If a suitable dirt area is not available, DBE must collect the wash water and remove it off-site.
v. DBE will prevent creating runoff by draining wat er from washing of exposed aggregate concrete to a dirt area. If a suitable dirt area is not available, DBE must collect the wash water and remove it off- site.
vi. Before Final Completion, DBE must remove all pr otective measures and treatment materials and sweep the site clean.
vii. DBE must collect and return sweepings from exp osed aggregate concrete to a stockpile or dispose of the waste in a trash container.
f. Painting.
i. DBE must conduct cleaning of painting equipment and tools in a designated area that will not allow run-on of storm water or runoff of spills.
ii. DBE will not allow wash water from cleaning of painting equipment and tools into streets, gutters, storm drains or creeks. iii. DBE will remove as much excess paint as possib le from brushes, rollers and equipment before starting cleanup.
iv. To the maximum extent practicable and with perm ission from Cupertino Sanitary District, DBE will dispose of wash water from aqueous cleaning of equipment and tools to the sanitary sewer. v. If DBE cannot dispose of wash water to the sanit ary sewer, DBE must direct wash water onto dirt area and spade in.
vi. To the maximum extent practicable, DBE will fil ter paint thinner and solvents for reuse.
vii. DBE must dispose of thinners, solvents, oil an d water-based paint, and sludge from cleaning of equipment and tools as hazardous waste, as described in these General Conditions.
viii. DBE must store paint, solvents, chemicals, an d waste materials in compliance with the City of Cupertino Hazardous Materials Storage Ordinance and all applicable state and federal regulations. DBE must
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store these materials in a designated area that will not allow run-on of storm water or runoff of spills.
ix. DBE must dispose of dry or empty paint cans and buckets, old brushes, rollers, rags, and drop cloths in the trash.
g. Earthwork.
i. DBE must use the BMPs for erosion and sedimentat ion in either the California Storm Water Best Management Practice Han dbook - Construction Activity or the ABAG Manual of Standards for Erosion and Sediment Control Measures.
h. Thermoplastic.
i. DBE must transfer and load hot thermoplastic awa y from drainage systems or watercourses.
ii. DBE must sweep thermoplastic grindings into pla stic bags. Yellow thermoplastic grindings may require special handling as they may contain paint.
i. Pesticide Usage and Pest Management.
i. DBE must follow all federal, state, and local po licies (including the City’s Integrated Pest Management Policy), laws, and regulations governing the use, storage, and disposal of pesticides and training of pest control advisors and applicators.
ii. DBE must submit pest management control methods to City Engineer for approval. Such control methods may include, but are not limited to: no controls; physical or mechanical methods; environmental controls (mulching, pest-resistant vegetation); biological controls (predators, parasites, etc.); less toxic controls (soaps, oils, etc.); and hot water.
iii. DBE must notify and receive permission from th e City Engineer and the Public Works Environmental Division before applying any pesticides.
iv. If permitted to use pesticides, DBE must use th e least toxic pesticides available and the use and type of such pesticides must be approved by the City. The City will consider the LD50, overall risk to the applicator, and impact to the environment when approving the use of pesticides.
v. DBE must apply pesticides at the appropriate tim e to maximize their effectiveness and minimize the likelihood of discharging non- degraded pesticides in stormwater runoff. DBE will not apply pesticides if rain is expected.
vi. DBE must mix and apply only as much material as is necessary for treatment. DBE must calibrate application equipment prior to and during use to ensure desired application rate.
vii. DBE will not mix or load pesticides in applica tion equipment adjacent to a storm drain inlet culvert or watercourse.
viii. DBE will not use Clopyralid, Diazinon, Chlorp yrifos, Chloradane, DDT, Dieldrin or other organophosphates. Fipronil and pyrethroids including, but not limited to Deltamethrin and Bifenthrin, will not be applied on City property.
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ix. DBE must submit monthly summaries of pesticide use to the Public Works Environmental Division on appropriate City form. Information provided must include, at a minimum, the product used, the method of application, date applied, the area to which it is applied, and the amount applied.
7.20 Traffic Control and Public Safety.
(A) Fences and Barriers. DBE must furnish, erect, and maintain fences, barr iers, lights, and signs, and must provide flagging and guards as necessary to give adequate warning to the public of the construction and of any dangerous condition at DBE’s sole cost and expense. City must approve all signs as to size, wording, and location.
City, in its sole discretion, may direct DBE to implement additional measures. DBE may be required to cover certain signs which regulate or direct public traffic to roadways that are not open to traffic. The City Engineer will determine which signs must be covered.
(B) Manual on Uniform Traffic Control Devices (MUTCD). Notwithstanding the requirements of this Section 7.20, all fences, barriers, signs, lights, flags, and other warning and safety devices and their use must conform to the requirements of Part 6 of the United States Department of Transportation MUTCD and the MUTCD California Supplement.
(C) Sign Conflicts. Signs and other protective devices furnished and erected by DBE will not obscure the visibility of, nor conflict in intent, meaning, and function of, existing signs, lights, and traffic control devices or any construction area signs and traffic control devices
(D) Public Access. DBE must conduct operations in the manner that off ers the least possible obstruction and inconvenience to the public. DBE must complete the Work in a manner that allows for access to public rights-of-way. Unless otherwise provided in the Contract Documents, all public traffic must be permitted to pass through the Work with as little inconvenience and delay as possible. Where possible, public traffic must be routed on new or existing paved surfaces.
(E) Public Spills. Spillage resulting from hauling operations along or across any public right-of-way must be removed immediately by DBE at DBE's sole cost and expense.
(F) Existing Traffic Signals. Existing traffic signals and highway lighting must be kept in operation and available for routine maintenance during construction.
(G) Abutting Properties. Construction operations must be conducted in such a manner as to cause as little inconvenience as possible to abutting property owners. DBE must maintain convenient access to driveways, house s, and buildings, and temporary approaches to crossings or intersecting highways must be provided and kept in good condition. When an abutting property owner's access across the right-of-way line is to be eliminated or replaced by other access facilities, the existing access will not be closed until the replacement access facilities are usable.
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(H) Lane Closures. Lane closures are not permitted before 7:00 A.M. or after 5:00 P.M. from Monday through Friday or as otherwise specified in the Special Conditions or Specifications. City may, at its sole discretion, approve lane closures during this time upon written request from DBE. DBE must maintain a minimum of two travel lanes for traffic use (one in each direction) at all times.
(I) Costs. DBE is solely responsible for all costs for all required traffic control and public safety measures.
7.21 Noise Control.
DBE must comply with all applicable noise control l aws, ordinances, regulations and rules. 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 DBE
.
7.22 Fire Protection Plan.
If a fire protection plan is required for this Project, within 21 days after the date of issuance of the Notice to Proceed with Construction Services, DBE must submit to the City Engineer a fire protection plan that has been reviewed and approved by the Santa Clara County Fire Department. In addition to any specified requirements for the fire protection plan, the plan should address all of the following:
(A) Equipment spark arresters;
(B) Fire-extinguishing equipment at the Worksite(s) ;
(C) Fire response procedures;
(D) Notification to authorities of any fire;
(E) Fire equipment access during performance of the Work and after hours; (F) Educating and training workers to comply with t he fire protection plan (G) Safe storage and transport of flammable materia ls; and (H) Equipment for ventilation and illumination.
7.23 Mined Materials.
Pursuant to Public Contract Code § 20676, DBE will not purchase any sand, gravel, or other minerals for the Work from an operation subject to the Surface Mining and Reclamation Act of 1975 (Public Resources Code § 27 10 et seq.) unless the DBE certifies, under penalty of perjury, that the minerals are from a mining operation included on the AB 3098 List, which may be accessed online at:
https://www.conservation.ca.gov/smgb/Pages/AB-3098- List.aspx .
Article 8 - Payment
8.1 Payment. For all Services performed in compliance with the Contract Documents, City will compensate DBE in an amount not to exceed the Contract Price, as adjusted by approved Change Orders, if any, as further specified below.
8.2 Schedule of Values. Prior to commencing the Construction Phase, DBE mu st prepare and submit to the Project Manager a schedule of values apportioned to the various
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divisions and phases of the Work, including cost allocations for both the Design Services and the Construction Services to be provided during the Construction Phase. Each line item contained in the schedule of values must be assigned a value such that the total of all items required for the Construction Services does not exceed the Contract Price for Construction Services under Section 3.1(B) of the Contract. 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 DBE’s Proposal.
(A) Measurements for Unit Price Work. Materials and items of Work to be paid for on the basis of unit pricing (if any) will be measured according to the methods specified in the Contract Documents.
(B) Deleted or Reduced Work. DBE 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 DBE reasonably incurred before DBE learne d that the Work could be deleted or reduced. DBE 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 for deleted or reduced scope.
8.3 Progress Payments. Following the last day of each month, or as otherw ise required by the Special Conditions or Specifications, DBE will submit to the Project Manager for approval, a monthly application for payment for Work performed during the preceding month based on the estimated value of the Design Services or Construction Services performed during that preceding month.
(A) Application for Payment.
(1) Each application for payment for Design Services must summarize the Design Services provided during the preceding month and identify each Design Professional that provided those services.
(2) Each application for payment for Construction S ervices 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 application for paymen t for Construction Services must be supported by DBE’s schedule of val ues and any other substantiating data required by the Contract Documents. If requested by the Project Manager, each application for payment for Construction Services must also be accompanied by an executed Conditional Waiv er and Release Upon Progress Payment, using the form specified in Civil Code § 8132 for each Subcontractor that performed Work during the period covered by that application.
The application for payment for Construction Services must also include the monthly report documenting compliance with the Skilled and Trained Workforce requirements pursuant to Public Contract Code § 2602, and as specified in Section 9.6, below.
(B) Payment of Undisputed Amounts.
(1) City will pay the undisputed amount due, as certified by the Project Manager, within 30 days after DBE 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 8.6, below, and may withhold additional amounts as set forth in Section 8.4, below.
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(2) If required by the Project Manager, within 45 days after receipt of each payment from City for Construction Services, DBE must submit an executed Unconditional Waiver and Release Upon Progress Paym ent, using the form specified in Civil Code § 8134, from each Subcontractor that has received a progress payment from DBE following DBE’s receipt o f payment from City.
8.4 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. DB E will be notified in writing of the basis for the modifications to the amount requested. City may also deduct or withhold from payment otherwise due based upon any of the circumstances 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) DBE’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) Loss or damage caused by DBE or its Subcontract ors 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) DBE’s failure to pay its Subcontractors and sup pliers 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 Secti on 8.6(B), Joint Checks.
(D) DBE’s failure to timely correct rejected, nonco nforming, 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 withho ld 125% of the amount claimed;
(F) DBE’s failure to submit any required schedule, schedule update or daily reports in the manner and within the time specified in the Contract Documents, City may withhold or deduct an amount an amount equal to ten percent of the total amount requested until DBE complies with its schedule submittal obligations;
(G) DBE’s failure to maintain or submit as-built do cuments 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 h ave been accepted by City, when accepted Shop Drawings are required before pro ceeding 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 unde r the Labor Code, City may deduct from payments due to DBE as required by Laws and as directed by the Division of Labor Standards Enforcement;
(J) For any other costs or charges that may be with held or deducted from payments to DBE, as provided in the Contract Documents, including liquidated damages, City may withhold or deduct such amounts from payment otherw ise due to DBE; and
(K) For failure to release claims as to undisputed amounts pursuant to Section 8.10, below
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8.5 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.
8.6 Retention. City will retain five percent of the amount due on each progress payment (i.e., the amount due before any withholding or deductions pursuant to Section 8.4, Adjustment to Payment Application), or the percenta ge stated in the RFP, whichever is greater, as retention to ensure full and satisfactory performance of the Services. DBE 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 recordation of the Notice of Completion, subject to the terms of Public Contract Code § 7107.
(A) Substitution of Securities. As provided by Public Contract Code § 22300, DBE 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 will 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 DBE 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 if any individual authorized to give or receive written notice on behalf of a party pursuant to section (10) of the Escrow Agreement are unavailable to give or receive notice on behalf of that party due to separation from employment, retirement, death, or other circumstances, the successor or delegee of the named individual is deemed to be the individual authorized to give or receive notice pursuant to section (10) of the Escrow Agreement.
(B) Release of Undisputed Retention. All undisputed retention, less any amounts that may be assessed as liquidated damages, retaine d for stop notices, or otherwise withheld pursuant to Section 8.4 or 8.7, will be released as Final Payment to DBE 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), as determined by City based on its records.
8.7 Setoff. City is entitled to set off any amounts due from DBE against any payments due to DBE. City’s entitlement to setoff includes progress payments as well as Final Payment and release of retention.
8.8 Payment to Subcontractors and Suppliers. Each month, DBE 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. City will withhold 125% of the amount claimed by an unreleased stop notice, a portion of which may b e 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 DBE and its Subconsultants, Subcontractors or suppliers, if City determines this is necessary to ensure fair and timely payment for a Subcontractor or
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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.
8.9 Final Payment. DBE’s application for Final Payment must comply wi th the requirements for submitting an application for a progress payment as stated in Section 8.3, above.
Corrections to previous progress payments, includin g adjustments to estimated quantities for unit priced items, may be included in the Final Payment. If DBE fails to submit a timely application for Final Payment, City reserves the right to unilaterally process and issue Final Payment without an application from DBE in order to close out the Project. For the purposes of determining the deadline for Claim subm ission 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 DBE, or otherwise provides written notice to DBE of Final Payment or that no undisputed funds remain available for Final Payment due to offsetting withholdings or deductions pursuant to Section 8.4, Adjustment of Payment Application. If the amount due from DBE to City exceeds the amount of Final Payment, City retains the right to recover the balance from DBE or its sureties.
8.10 Release of Claims. City may, at any time, require that payment of the undisputed portion of any progress payment or Final Payment (excepting undisputed retention subject to release under Public Contract Code § 7107) be conti ngent upon DBE 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 limits of Public Contract Code § 7100. The waiver and release of claims must be submitted using the City’s Release of Claims form. Any disputed amounts may be specifically excluded from the release.
8.11 Warranty of Title. DBE warrants that title to all work, materials, or equipment incorporated into the Work or delivered to a Project site, and included in a request for payment will pass over to City free of any claims, liens, or encumbrances upon any payment to DBE.
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. DBE and its Subcontractors are required to comply with all applicable Laws prohibiting discrimination, including the California Fair Employment and Housing Act (Government Code § 12900 et seq.), Government Code § 11135, and Labor Code §§ 1735, 1777.5, 1777.6, and 3077.5.
9.2 Labor Code Requirements. The following requirements apply to any work class ified as "public works" pursuant to Labor Code § 1720 et seq. (and any corresponding regulations):
(A) Eight Hour Day. Pursuant to Labor Code § 1810, eight hours of labo r constitute a legal day’s work under this Contract.
(B) Penalty. Pursuant to Labor Code § 1813, DBE will forfeit to City as a penalty, the sum of $25.00 for each day during which a worker employed by DBE or any Subcontractor is required or permitted to work more than eight hours in any one calendar
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day or more than 40 hours per calendar week, except if such workers are paid overtime under Labor Code § 1815.
(C) Apprentices. DBE is responsible for compliance with the require ments 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, DBE is required t o post all job site notices prescribed by Laws.
9.3 Prevailing Wages. Each worker performing Work under this Contract th at 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 . DBE must post a copy of the applicable prevailing rates at the Project site.
(A) Penalties. Pursuant to Labor Code § 1775, DBE and any Subcont ractor 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. DBE 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 the Project is subject to federal prevailing wage requirements in addition to California prevailing wage requirements, DBE and its Subcontractors are required to pay the higher of the currently applicable prevailing wage rates.
9.4 Payroll Records. At all times during performance of Construction Services, DBE must comply with the provisions of Labor Code §§ 1776 an d 1812 and all implementing regulations, which are fully incorporated by this reference, including requirements for electronic submission of payroll records.
(A) DBE and Subcontractor Obligations . DBE 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, appr entice, 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.
(2) DBE or Subcontractor has complied with the requ irements 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 m ust be made available for inspection or furnished to the employee or his or her authorized representative on request, to City, or to the Division of Labor Standards Enforcement, and 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 § 177 6, DBE or Subcontractor has ten days in which to comply with the requirements of this section. If DBE or Subcontractor fails to do so within the ten day period, DBE 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
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of Apprenticeship Standards, or the Division of Labor Standards Enforcement, these penalties will be withheld from progress payments then due to the DBE.
9.5 Labor Compliance. Pursuant to Labor Code § 1771.4, Services subject t o this Article are subject to compliance monitoring and enforcemen t by the DIR.
9.6 Skilled and Trained Workforce. DBE and its Subcontractors of every tier must use a Skilled and Trained Workforce, to perform all Work on the Project that falls within an apprenticeable occupation in the building and const ruction trades. DBE will submit a report each month to the City demonstrating compliance with this requirement during the previous calendar month. The monthly report on comp liance with Skilled and Trained Workforce compliance during the previous calendar m onth, must be submitted with DBE’s monthly application for progress payments.
Article 10 - Safety Provisions
10.1 Safety Precautions and Programs. DBE 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. DBE and its Subcontractors must at all times comply with all applicable 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 the Worksite, materials and equipment stored on or off site, and property at or adjacent to the Worksite.
(A) Reporting Requirements. DBE must immediately notify the City of any death, serious injury or illness resulting from Work on the Project. DBE 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 DBE or of any Subcontractor involved in the incident; (3) a detailed description of the incident, including precise location, time, and names and contact information for known witnesses; and (4) a police or first responder report, if applicable. If DBE is required to file an accident report with a government agency, DBE will provide a copy of the report to City.
(B) Legal Compliance. DBE’s safety program must comply with the applicabl e legal and regulatory requirements. DBE must provide City with copies of all notices required by Laws.
(C) DBE’s Obligations. Any damage or loss caused by DBE arising from the W ork which is not insured under property insurance must be promptly remedied by DBE.
(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 DBE’s safety program, require DBE or its Subcontractor to cease performance of the Work or to take corrective measures to City’s satisfaction. If DBE fails to promptly take the required corrective measures, City may perform them and dedu ct the cost from the Contract Price.
DBE 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 DBE’s compliance with City’s request for corrective measures pursuant to this provision.
10.2 Hazardous Materials. Unless otherwise specified, this Contract does not include the removal, handling, or disturbance of any asbestos or other Hazardous Materials. If DBE encounters materials on the Project site that DBE reasonably believes to be asbestos or other Hazardous Materials, and the asbestos or othe r Hazardous Materials have not been rendered harmless, DBE may continue Work in un affected areas reasonably
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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. DBE is solely responsible for complying with § 5194 of Title 8 of the California Code of Regulations, including by providing information to DBE’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 w arning and training about such exposure must be used. DBE must also maintain Safet y 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 DBE’s employees, Subcontractors, and City.
(A) DBE Obligations. DBE 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. DBE must notif y the City Engineer if a specified product or material cannot be used safely.
(B) Labeling. DBE must ensure proper labeling on any material br ought 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. DBE is solely responsible for determining whether a hazardous condition exists or is created during the course of the Work, involving a risk of bodily harm to any person or risk of damage to any property. If a hazardous condition exists or is created, DBE 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, DBE 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, DBE must provide written notification to City requesting final inspection.
The Project Manager will schedule the date and time for final inspection, which must include DBE’s primary representative for this Project and its superintendent for the Construction Services. Based on that inspection, City will prepare a punch list of any items that are incomplete, incorrectly installed, or otherwise not operating as required by the Contract Documents. City will deliver the punch list to DBE and 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 DBE fails to do so within the specified time. The omission of any non-compliant item from a punch list will not relieve DBE from fulfilling all requirements of the Contract Documents. DBE’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 DBE’s failure to timely complete any such
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outstanding item. If DBE requests final inspection and City determines that Work exceeding five percent of the total value of the Contract, as adjusted, remains unfinished, DBE will be responsible for City’s costs, including staff time, for performance of the final inspection on a premature basis.
(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 submissio n of all final submittals, instructions and manuals as required under Section 7.9, and as-built drawings as required under Section 7.10, 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 City Engineer is authorized to accept the Project, in which case the Project will be considered accepted upon the date of the City 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 DBE fails to complete all of the punch list items within the specified time, City may withhold up to 150% of City’s estimated cost to complete each of the remaining items from Final Payment and may use the withheld retention to pay for the costs to self-perform the outstanding items or to retain a third party to complete any such outstanding punch list item.
11.2 Warranty.
(A) General. DBE 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. DBE further warrants that the Work will be free from material defects not intrinsic in the design or materials required in the Contract Documents. DBE 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 Materi als encountered or used were handled as required by Laws. At City’s request, DBE must furnish satisfactory evidence of the quality and type of materials and equipment furnished. DBE’s warranty does not extend to damage caused by normal wear and tear, or improper use or maintenance.
(B) Warranty Period. DBE’s warranty must guarantee its Work for a period of one year from the date of recordation of the notice of completion (the “Warranty Period”), except when a longer guarantee is provided by a supplier or manufacturer or is required by the Specifications or Special Conditions. DBE 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, DBE m ust supply City with all warranty and guarantee documen ts 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 DBE and its Subcontractors, and D BE agrees to be co-guarantor of such Work.
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(E) DBE’s Obligations. Upon written notice from City to DBE of any defect in the Work discovered during the Warranty Period, DBE or its responsible Subcontractor must promptly correct the defective Work at its own cost. DBE’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 DBE 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 DBE and/or its responsible Subcontractor fails to correct defective Work within ten days following notice by City, or sooner if required by the circumstances, DBE expressly agrees that City may c orrect the defects to conform with the Contract Documents at DBE’s sole expense, and D BE agrees to reimburse City for its costs in accordance with subsection (H), below.
(G) Emergency Repairs. In cases of emergency where any delay in correcting defective Work could cause harm, loss or damage, City may immediately correct the defects to conform with the Contract Documents at DBE’s sole expense. DBE or its surety must reimburse City for its costs in accordance with subsection (H), below.
(H) Reimbursement . DBE 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 DBE’s compliance with this provision, and City is the prevailing party in such action, DBE and its surety are solely responsible for all of City’s attorney’s fees and legal costs expended to enforce DBE’s warranty obligations here in, 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 t he 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 DBE 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 DBE’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 maintenanc e 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 DBE’s cost or time to complete the Work within the Contract Time.
11.4 Substantial Completion. For purposes of determining “substantial completio n” 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 DBE or any Subcontractor performs Work on the Project prior to recordation of the notice of completion, except for warranty work performed under this Article.
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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) Limitations. A Claim may only include the portion of a previously rejected demand that remains in dispute between DBE and City . With the exception of any dispute regarding the amount of money actually paid to DBE as Final Payment, DBE 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.
(B) 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.
(C) No Work Delay. Notwithstanding the submission of a Claim or any ot her dispute between the parties related to the Project or the Contract Documents, DBE must perform the Work and may not delay or cease Work pending re solution 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.
(D) Informal Resolution. DBE 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 DBE and City.
12.2 Claims Submission. The following requirements apply to any Claim subj ect to this Article:
(A) Substantiation. The Claim must be submitted to City in writing by r egistered or certified mail with return receipt requested and 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 C laim 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, i ncluding DBE’s position and the basis for that position;
b. Identify and attach all documents that substanti ate the Claim, including relevant provisions of the Contract Documents, calculations, and schedule analysis (see subsection (A), Substantiation, above);
c. A chronology of relevant events; and
d. Analysis and basis for claimed changes to Contra ct Price, Contract Time, or any other remedy requested.
(4) Provide a summary of issues and corresponding c laimed 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, DBE 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 DBE’s authorized representative:
“The undersigned DBE certifies under penalty of perjury that its statements and representations in this Claim submittal are true and correct. DBE warrants that this Claim submittal is comprehensive and complete as to the matters in dispute, and agrees that any costs, expenses, or delay claim not included herein are deemed waived. DBE understands that submission of a Claim which has no basis in fact or which DBE knows to be false may violate the False Claims Act (Government Code § 12650 et seq.).”
(C) Submission Deadlines.
(1) A Claim must be submitted within 21 days following the date that City notified DBE 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 21 days following the date of issuance of the unilateral Change Order. These Claim deadlines apply even if D BE cannot yet quantify the total amount of any requested change in the Contrac t Time or Contract Price. If the DBE cannot quantify those amounts, it must submit an estimate of the amounts claimed pending final determination of the requested remedy by DBE.
(2) With the exception of any dispute regarding the amount of Final Payment, any Claim must be filed on or before the date of Final Payment, or will be deemed waived.
(3) A Claim disputing the amount of Final Payment must be submitted within 21 days of the effective date of Final Payment, under Section 8.9, 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
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cost-efficient administration of the Project. Any Claim that is not submitted within the specified deadlines will be deemed waive d by DBE.
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 DBE 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), Substant iation, 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 Cit y and DBE. If DBE’s Claim is based on estimated amounts, DBE has a continuing du ty 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 DBE 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, DBE 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 DBE fails to dispute City’s response in writing within the specified time, DBE’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 a t 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 DBE may identify in writing disputed portion(s) of the Claim, which will be submitted for mediation, as set forth below.
12.5 Mediation and Government Code Claims.
(A) Mediation. Within ten working days after the City issues the written statement identifying any portion(s) of the Claim remaining in dispute following the meet and confer, City and DBE 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
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mediator and mediation fees equally, but each party is otherwise solely and separately responsible for its own cost 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 DBE 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 Proced ure § 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. DBE bears the burden of proving entitlement to and the amount of any claimed damages. DBE is not entit led to damages calculated on a total cost basis, but must prove actual damages. DBE is not entitled to speculative, special, or consequential damages, including home office overhe ad or any form of overhead not directly incurred at the Project site or any other Worksite; lost profits; loss of productivity; lost opportunity to work on other projects; diminished bonding capacity; increased cost of financing for the Project; extended capital costs; non-availability of labor, material or equipment due to delays; or any other indirect loss arising from the Contract. The Eichleay Formula or similar formula will not be used for any recovery under the Contract.
The City will not be directly liable to any Subcontractor or supplier.
12.9 Legal Proceedings. In any legal proceeding that involves enforcement of any requirements of the Contract Documents, the finder of fact will receive detailed instructions on the meaning and operation of the Contract Documents, including conditions, limitations of liability, remedies, claim procedures, and other provisions bearing on the defenses and theories of liability. Detailed findings of fact will be requested to verify enforcement of the Contract Documents. All of the City's remedies under the Contract Documents will be construed as cumulative, and not exclusive, and the City reserves all rights to all remedies available under law or equity as to any dispute arising from or relating to the Contract Documents or performance of the Work.
12.10 Other Disputes. The procedures in this Article 12 will apply to any and all disputes or legal actions, in addition to Claims, arising from or related to this Contract, including disputes regarding suspension or early termination of the Contract, unless and only to the extent that compliance with a procedural requirement is expressly and specifically waived by City. Nothing in this Article is intended to delay suspension or termination under Article
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Article 13 - Suspension and Termination
13.1 Suspension for Cause. In addition to all other remedies available to City, if DBE 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, DBE and its Subcontractors must promptly stop Work as s pecified in the notice of suspension; comply with directions for cleaning and securing the Worksite; and protect the completed and in-progress Work and materials. DBE 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, DBE 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, DBE must submit a recovery schedule, prepared in accordance with the Contract Documents, showing how DBE will complete the Work within the Contract Time.
(C) Failure to Comply. DBE will not be entitled to an increase in the Contract Time or Contract Price for a suspension occasioned by DBE’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 DBE’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, DBE must immediately suspend, delay, or interrupt the Work and secure the Project site as directed by City except for taking measures to protect completed or in-progress Work as directed in the suspension notice, and subject to the provisions of Section 13.1(A) and (B), above. If DBE 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 convenienc e, except to the extent that any such impacts were caused by DBE’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 DBE disputes the terms of a Change O rder 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 DBE 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 inc lude DBE’s refusal or failure to supply sufficient skilled workers, proper materials, or equipment to perform the Work within the Contract Time; DBE’s refusal or failure to make prompt payment to its employees, Subcontractors, or suppliers or to correct defective Work or damage; DBE’s
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failure to comply with Laws, or orders of any public agency with jurisdiction over the Project; evidence of DBE’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 DBE’s organization, ownership, structure, or existence as a business entity; unauthorized assignment of DBE’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 DBE is in default due to a material breach of the Contract Documents, if City determines that the default is curable, City will afford DBE 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 DBE 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 DBE and its surety of City’s termination of the Contract for default.
(D) Waiver. Time being of the essence in the performance of th e Work, if DBE’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, DBE’s surety will be deemed to have waived its right to complete the Work under the Contract, and City may immediately make arrangements for the comp letion 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. DBE a nd 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 DBE had timely completed Work without the default and termination. In addition, City will have the right to immediate possession and use of any materials, supplies, and equipment procured for the Project and located at the Project site or any Worksite on City property for the purposes of completing the remaining Work.
(E) Compensation . Within 30 days of receipt of updated as-builts, all warranties, manuals, instructions, or other required documents for Work installed to date, and delivery to City of all equipment and materials for the Project for which DBE has already been compensated, DBE 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 8.4, and excluding any costs DBE incurs as a result of the termination, including any cancellation or restocking charges or fees due to third parties. If DBE 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 DBE 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 DBE’s damages will be strictly limited to the compensation provided for terminatio n for convenience under Section 13.4, below. DBE 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.
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13.4 Termination for Convenience. City reserves the right to terminate all or part of the Contract for convenience upon written notice to DBE.
(A) Compensation to DBE. In the event of City’s termination for convenience, DBE waives any claim for damages, including for loss of anticipated profits from the Project. The following will constitute full and fair compensation to DBE, and DBE 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 DBE’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, 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 DBE disputes the amount of compensation determi ned by City pursuant to paragraph (A), above, its sole recourse is to comply with the Claim procedures in Article 12, by submitting a Claim no later than 30 days following notice from City of total compensation to be paid by City.
13.5 Actions Upon Termination for Default or Conven ience. 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. DBE 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, DBE 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, DBE 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) DBE 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.
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(4) As directed in the notice, DBE 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 DBE’s performance bond, and settle all outstanding liabilities and claims, subject to City’s approval.
(5) As directed in the notice, DBE 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, DBE will submit its request for Final Payment, including any amounts due following termin ation 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 (as applicable), including demobilization costs. Adjustments to Final Payment may include deductions for the cost of materials, supplies, or equipment retained by DBE; payments received for sale of any such materials, supplies, or equipment, less re-stocking fees charged; and as otherwise specified in Section 8.4, Adjustment of Payment Application.
(E) Continuing Obligations. Regardless of any Contract termination, DBE’s obligations for portions of the Work already performed will continue and the provisions of the Contract Documents will remain in effect as to any claim, indemnity obligation, warranties, guarantees, submittals of as-built drawings, instructions, or manuals, record maintenance, or other such rights and obligations arising prior to the termination date.
Article 14 - Miscellaneous Provisions
14.1 Assignment of Unfair Business Practice Claims. Under Public Contract Code § 7103.5, DBE and its Subcontractors agree to assign to City all rights, title, and interest in and to all causes of action it may have under § 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2 (commencing wit h § 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 DBE, 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.
Photovoltaic Systems Design and Installation Project GENERAL CONDITIONS Project 2025-02 Page 77
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 2.3(D), Ownership of Documents, Section 2.4(J), DBE’s Records, Section 2.5(C), Termination, Section 4.2, Indemnity and Liability, Section 11.2, Warranty, and Article 12, Dispute Resolution.
END OF GENERAL CONDITIONS
Photovoltaic Systems Design and Installation Project SPECIAL CONDITIONS Project 2025-02 Page 78
Special Conditions
1. Work Days and Hours. Work hours and noise pose a special concern for projects in residential neighborhoods. The City is very concerned for its residents and will diligently enforce the restrictions below.
1.1 Work Hours. Except as expressly authorized in writing by City, DBE is limited to performing Work on the Project between 7:00 a.m. to 4:00 p.m., Monday through Friday (excluding City observed holidays). Any request for work outside of these hours must be submitted in writing and approved in advance by the City’s Team two working days in advance. Equipment and material may arrive no earli er than 6:00 a.m. to the site.
1.2 Equipment and Material Delivery and Off-Haul Hours . No equipment or material may be delivered or off-hauled except between 6:00 a.m. to 4:00 p.m., Monday through Friday (excluding City observed holidays). No equipment that has a safety back up beeper may be operated before 6:00 a.m. on any d ay.
1.3 Work Days Only . Work will only be performed on Work Days, as defi ned in the General Conditions, unless DBE requests otherwise from City in writing at least 2 working days in advance, and City approves the request in its sole discretion.
1.4 Connections to Existing Facilities . Unless otherwise specified or indicated, DBE will make all necessary connections to existing facilities, including structures, drain lines, and utilities such as water, sewer, gas, telephone, and electric. In each case, DBE will receive permission from City or the owning utility prior to undertaking connections and coordinate as needed to accommodate the facilities operations. DBE will protect facilities against deleterious substances and damage.
1.5 Road Shutdown . DBE will execute the Work while roads are in operation except for the periods of permitted shutdown. For shutdown periods, DBE will prepare and submit a detailed plan that includes shutdown schedule, planned sequence of work, milestones and projected times of completions of activities, any anticipated problems, DBE’s supervisory personnel, actions desired of City and staff, and contingency plans.
DBE will allow sufficient time for review and re-submittal of the shutdown plan until acceptable to City. DBE will employ sufficient labor, superintendence, and equipment on a 24-hour, 7 days a week basis during shutdown and other operational disruptions to complete Work within the specified periods at no additional cost to the City. Once initiated, Work may proceed on extra shift or aroun d-the-clock basis as necessary. When required to minimize treatment process interruptions while complying with specified sequencing constraints, DBE will provide power, lighting, controls, instrumentation, and safety devices.
1.6 Noise Limitation . No non-construction noise will be allowed, this includes amplified music, radio or other noise not due to construction activities.
Photovoltaic Systems Design and Installation Project SPECIAL CONDITIONS Project 2025-02 Page 79
2. 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 Laws. DBE is required to verify forms and other work comply with lines, grades and elevations. Prior to pouring or placing any concrete or asphalt, DBE 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. DBE must provide City verification of the licensing and experience for each proposed land surveyor or civil engineer. DBE must provide City with inspection results for form and grade work. DBE must remedy any non-co mpliant Work at no additional cost to City.
3. Parking Restrictions. DBE and Subcontractors will direct their respectiv e workers to park in the locations identified for DBE parking in the Bridging Documents or other appropriate off-site locations, including public parking facilities or public streets adjacent to or near the Project site, in compliance with applicable parking restrictions and requirements, and without blocking driveways and access.
4. Pre-Construction Conference. City will designate a date and time for a pre-const ruction conference with DBE following City’s approval of the final Construction Documents.
Project administration procedures and coordination between City and DBE will be discussed, and DBE must present City with the following information or documents at the meeting for City’s review and acceptance before the Work commences:
4.1 Name, 24-hour contact information, and qualifications of the proposed on-site superintendent;
4.2 List of all key Project personnel and their complete contact information, including email addresses and telephone numbers during regula r hours and after hours;
4.3 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;
4.4 If required, traffic control plans associated with the staging plans that are signed and stamped by a licensed traffic engineer;
4.5 Draft baseline schedule for the Work as required un der Section 5.2 of the General Conditions, to be finalized within 10 days after City’s approval of the final Construction Documents;
4.6 Breakdown of lump sum bid items, to be used for determining the value of Work completed for future progress payments to DBE;
4.7 Schedule with list of Project submittals that require City review, and list of the proposed material suppliers;
4.8 Plan for coordination with affected utility owner(s) and compliance with any related permit requirements;
4.9 Videotape and photographs recording the conditions throughout the pre- construction Project site, showing the existing improvements and current condition of the curbs, gutters, sidewalks, signs, landscaping, streetlights, structures near the Project such as building faces, canopies, shades and fences , and any other features within the Project area limits;
Photovoltaic Systems Design and Installation Project SPECIAL CONDITIONS Project 2025-02 Page 80
4.10 If requested by City, DBE’s cash flow projections; and
4.11 Any other documents specified in the Special Conditions or Notice of Award.
5. Construction Manager Role and Authority. 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 DBE 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 D BE, or other services for the Project in accordance with the Construction Manager’s contract with City.
5.1 Communications. DBE must submit all notices and communications rel ating to the Work directly to the Construction Manager in writing. The Construction Management firm is not yet contracted, contact information will be provided upon execution.
Copy to the City’s Project Manager:
Susan Michael, CIP Manager
Public Works
[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, DBE, 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. DBE will attend the pre-construction conference, during which the Construction Manager will review the Contract administration procedures and Project requirements.
5.5 DBE’s Construction Schedule. The Construction Manager will review DBE’s construction schedules and will verify that each schedule is prepared in accordance with the requirements of the Contract Documents.
6. Notification of Residents, Schools and Businesse s. DBE will 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 City Engineer for review and approval. Sample notice is below.
Notices shall include the Project name, describe the nature and duration of the DBE’s operations, and provide a telephone number at which a DBE representative may be contacted 24 hour per day for problems or emergencies encountered by resident s
Photovoltaic Systems Design and Installation Project SPECIAL CONDITIONS Project 2025-02 Page 81
and/or businesses. Answering machines and voice mai l shall not be permitted. The 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. DBE shall submit a written request to the City Engineer regarding the temporary closure of access to any driveway. No driveway access shall be closed by the DBE at any time without prior written authorization from the City Engineer.
If construction operations are delayed for any reason beyond the duration stipulated in the notices, DBE shall re-issue written notices that explain the delay and provide a revised schedule.
All written notices to residents, schools, businesses, agencies, etc. shall be submitted to the City for review and approval. Provide the City with a schedule of the notification deliveries so that the City can confirm that the notification was completed.
Payment for compliance with this section shall be deemed included in the various other items of work, and no additional compensation will be allowed therefore.
SAMPLE NOTICE:
NOTICE TO RESIDENTS / BUSINESS OWNERS
Date: [MONTH] [DAY], [YEAR]
Subject: [NAME OF PROJECT] – [One Week OR Two Day] Notice This notice is to inform you that the City of Cupertino, Department of Public Works, has contracted with [DBE 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] unt il [END DATE]. Please be aware that there may be construction activities that cause traffic delays.
[DBE 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 th e construction.
Prior to activities in your immediate area, you will be sent a notification TWO WORKING DAYS before work begins. [DBE 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:
[DBE NAME]
[NAME OF PROJECT MANAGER, DBE)
Project Manager
(XXX) XXX ‐XXXX (24-hour number)
Photovoltaic Systems Design and Installation Project SPECIAL CONDITIONS Project 2025-02 Page 82
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, DBE], Project Manager
[NAME OF CONSTRUCTION FIRM]
7. Pandemic Health Laws. DBE’s duty to comply with Laws includes compliance by the DBE team, including all Subconsultants and Subcontr actors, with all local, state, or federal Laws that have been or may be enacted in response to the Covid-19 pandemic (collectively, “Health Laws”) or similar, which include the County of Santa Clara Health Orders for Construction activities, including any subsequent amendments thereto. Failure to fully comply with the Health Laws constitutes a material default, subject to all available remedies including suspension or termination.
8. Construction and Demolition Debris Management Pl an
A completed construction and demolition (C&D) Debris Management Plan must be submitted using the City’s Green Halo on-line application. All debris disposal and recycling from the construction project must be tracked throughout the duration of the project. The DBE must use Green Halo Cupertino.wast etracking.com to create their Plan and to submit all construction waste generation tonnage information. No additional compensation will be paid for implementation of the Debris Management Plan and failure to meet all plan requirements may result in work stoppage, fines, and/or back-charges.
For additional information, visit www.cupertino.org/greendev
9. Federally Funded Projects. This Project is funded in whole or in part by federal funds and subject to the following federal requirements under the terms of the funding agreement(s) between City and the federal agency or agencies providing federal funds, which are fully incorporated by this reference and made part of the Contract Documents.
Copies of any funding agreement between City and a funding agency will be made available upon request.
9.A. Equal Opportunity. During the performance of this Contract, the DBE agrees as follows:
9.A.1. The DBE will not discriminate against any em ployee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The DBE will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action will include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The DBE agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
Photovoltaic Systems Design and Installation Project SPECIAL CONDITIONS Project 2025-02 Page 83
9.A.2. The DBE will, in all solicitations or advertisements for employees placed by or on behalf of the DBE, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
9.A.3. The DBE will not discharge or in any other m anner discriminate against any employee or applicant for employment because su ch employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision will not apply to instances in which an employee who has access to th e compensation information of other employees or applicants as a part of such employee’s essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the DBE’s legal duty to furnish information.
9.A.4. The DBE will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the labor union or workers’ representatives of the DBE’s commitments under this section, and will post copies of the notice in conspicuous places available to employees and applicants for employment.
9.A.5. The DBE will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the United States Secretary of Labor.
9.A.6. The DBE will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the United States Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the United States Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
9.A.7. In the event of the DBE noncompliance with the nondiscrimination clauses of this contract or with any of the rules, regulations, or orders, this Contract may be canceled, terminated, or suspended in whole or in part and the DBE may be declared ineligible for further federal government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other s anctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the United States Secretary of Labor, or as otherwise provided by law.
9.A.8. The DBE will include the portion of the sentence immediately preceding paragraph (A) and the provisions of paragraphs (A) through (H) in every subcontract or purchase order unless exempted by ru les, regulations, or orders of the United States Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each Subcontractor or vendor. The DBE will take such action with respect to any subcontract or purchase order as the City or funding agency may direct as a means of enforcing such provisions, including sanctions for
Photovoltaic Systems Design and Installation Project SPECIAL CONDITIONS Project 2025-02 Page 84
noncompliance: Provided, however, that in the event a DBE becomes involved in, or is threatened with, litigation with a Subcontractor or vendor as a result of such direction by the City or funding agency, the DBE may request the United States to enter into such litigation to protect the interests of the United States.
9.B. Davis-Bacon Act. DBE will pay wages to laborers and mechanics, not less than once a week, and at a rate not less than the current federal prevailing wages specified in the Davis-Bacon Act Wage Determination attached hereto and incorporated herein. By entering into this Contract, DBE accepts the attached Wage Determination. The current Davis-Bacon Act Wage Det ermination, which may be accessed at https://sam.gov/wage-determination/CA20250018/1 , is attached to this document as Appendix 1.
9.C. Copeland “Anti-Kickback” Act. DBE will comply with 18 U.S.C. § 874, 40 U.S.C. § 3145, and the requirements of 29 CFR Part 3 as may be applicable, which are incorporated by reference into this Contract. DBE and Subcontractors must insert this requirement into subcontracts of any tier. DBE is responsible for compliance with these requirements by each Subcontractor of any tier.
9.D. Contract Work Hours and Safety Standards Act. In addition to the California state law requirements in Article 9 of the General Conditions, DBE and each Subcontractor must comply with the requirements of the federal Contract Work Hours and Safety Standards Act, as set forth in 40 U.S.C. 3701-3708, as supplemented by the regulations set forth in 29 CFR Part 5, as may be amended from time to time, which are fully incorporated herein, including:
9.D.1. DBE or Subcontractor will not require or permit any laborer or mechanic performing Work for the Project to work in excess of 40 hours in a work week unless such laborer or mechanic receives compensati on at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of 40 hours during that work week.
9.D.2. If DBE or a Subcontractor violates this requirement, the DBE and any responsible Subcontractor will be liable for the unpaid wages. In addition, the DBE and Subcontractor will be liable to the United States for liquidated damages.
The liquidated damages will be computed with respec t to each individual worker as specified under federal law.
9.D.3. DBE and Subcontractors must insert this requirement into subcontracts of any tier. DBE is responsible for compliance with these requirements by each Subcontractor of any tier.
9.E. Rights to Inventions . If the federal funding for this Contract meets the definition of “funding agreement” under 37 CFR § 401.2(a) and constitutes an agreement between the City and a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding age ncy, will apply to this Contract and are fully incorporated into the Contract Documents by this reference.
9.F. Clean Air Act . If the Contract is for an amount in excess of $15 0,000, DBE and each Subcontractor must comply with the requirement s of the Clean Air Act, as
Photovoltaic Systems Design and Installation Project SPECIAL CONDITIONS Project 2025-02 Page 85
amended, (42 U.S.C. §§ 7401-7671q), which are fully incorporated into the Contract Documents by this reference, including requirements for reporting violations to the awarding agency and the applicable Regional Office for the Environmental Protection Agency. DBE and Subcontractors must insert this requirement into subcontracts of any tier in excess of $150,000.
9.G. Federal Water Pollution Control Act . If the Contract is for an amount in excess of $150,000, the requirements of the Federal Water Pollution Control Act (33 U.S.C. §§ 1251-1387) apply to this Contract and are fully incorporated into the Contract Documents by this reference, including requirements for reporting violations to the awarding agency and the applicable Regional Office for the Environmental Protection Agency. DBE and Subcontractors must insert this requirement into subcontracts of any tier in excess of $150,000.
9.H. Suspension and Debarment . DBE is required to verify that neither it, nor its principals, as defined at 2 CFR § 180.995, or its affiliates, as defined at 2 CFR § 180.905, are excluded or disqualified, as defined at 2 CFR §§ 180.935 and 180.940.
DBE must comply with 2 CFR Part 180, subpart C and 2 CFR Part 3000, subpart C, and must include a provision requiring compliance with these regulations in any subcontract of any tier. If it is later determined that the DBE did not comply with the applicable subparts, the Federal Government may pur sue available remedies, including, but not limited to, suspension and/or debarment. By submitting a bid and entering into this Contract, DBE agrees to comply with these requirements.
9.I. Byrd Anti-Lobbying Amendment . If the Contract is for an amount in excess of $100,000, DBE must comply with the Byrd Anti-Lobbyi ng Amendment (31 U.S.C. § 1352) and file the certification provided at 44 CFR Part 18, Appendix A, and any disclosures, with the applicable federal agency. Each tier certifies to the tier above that it will not and has not used federal-appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier will also disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures will be forwarded from tier to tier up to the recipient.
9.J. Procurement of Recovered Materials . The requirements of § 6002 of the Solid Waste Disposal Act, as amended by the Resource Cons ervation and Recovery Act at 42 U.S.C. § 6962, apply to this Contract and are fully incorporated into the Contract Documents by this reference. For individual purchases of $10,000 or more, DBE will make maximum use of products containing recovered m aterials that are EPA- designated items unless the product cannot be acquired (A) competitively within the Contract schedule, (B) in conformance with Contract performance requirements, or (C) at a reasonable price. Information on this requirement, including a list of EPA- designated items, is available at the EPA’s Comprehensive Procurement Guidelines website:
https://www.epa.gov/smm/comprehensive-procurement-g uideline-cpg-program .
9.K. Prohibition on Covered Telecommunications. Federal loan or grant funds must not be obligated or expended to procure or obtain, extend or renew a contract to procure or obtain, or enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that use covered telecommunications equipment or services as a subst antial or essential component of any system, or as critical technology as part of any system, as further specified in 2 CFR § 200.216, which is fully incorporated into the Contract Documents by this
Photovoltaic Systems Design and Installation Project SPECIAL CONDITIONS Project 2025-02 Page 86
reference. Covered telecommunications equipment or services includes equipment produced by, services provided by, or services using equipment produced by:
Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities); Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities); or an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
9.L. Domestic Preferences for Procurements . As appropriate, practicable, and to the extent consistent with Laws, the DBE shall procure, purchase, acquire, and/or use goods, products, or materials produced in the United States, as further specified in 2 CFR § 200.322, which is fully incorporated into the Contract Documents by this reference, including, but not limited to, iron, aluminum, steel, cement, and other manufactured products used in construction, as spec ified therein. The requirements of 2 CFR § 200.322 must be included in all subcontr acts and purchase orders for work or products under the federal award. Furthermore, it is the stated goal of the project to have the project qualify for the “Build America, Buy America Act,” which establishes a domestic content procurement preferen ce for all Federal financial assistance obligated for infrastructure projects.
10. Close Out Requirements . DBE’s close out requirements include the followin g, if applicable:
10.A. DBE 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.
10.B. DBE 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.
10.C. Before removing any traffic control or street signs on the Project site, DBE must take photographs showing their original locations. Upon completion of each phase of construction, DBE must temporarily reset the signs at those locations. DBE 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.
10.D. DBE must maintain any rural mailboxes 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
END OF SPECIAL CONDITIONS
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 1
APPENDIX A
DAVIS – BACON ACT WAGE DETERIMINATION (1/10/2025)
"General Decision Number: CA20250018 01/10/2025
Superseded General Decision Number: CA20240018
State: California
Construction Types: Building, Heavy (Heavy and Dred ging) and Highway
Counties : Alameda, Calaveras, Contra Costa, Fresno, Kings, Madera, Mariposa, Merced, Monterey, San Benito, San Francisco, San Joaquin, San Mateo, Santa Clara, Santa Cruz, St anislaus and Tuolumne Counties in California.
BUILDING CONSTRUCTION PROJECTS ; DREDGING PROJECTS (does not include hopper dredge work); HEAVY CONSTRUCTION PROJECTS (does not includ e water well drilling); HIGHWAY
CONSTRUCTION PROJECTS
Note : Contracts subject to the Davis-Bacon Act are generally required to pay at least the applicable minimum wage rate required under Executive Order 14 026 or Executive Order 13658. Please note that these Executive Orders apply to covered contracts entered into by the federal government that are subject to the Davis-Bacon Act itself, but do not apply to contracts subject only to the Davis-Bacon Related Acts, including those set forth at 29 CFR 5.1(a)(1).
If the contract is entered into on or after
January 30, 2022, or the contract is renewed
or extended (e.g. an option is exercised) on or
after January 30, 2022:
Executive Order 14026 generally applies to
the contract. The contractor must pay all
covered workers at least $17.75 per hour (or
the applicable wage rate listed on this wage
determination, if it is higher) for all hours
spent performing on the contract in 2025.
If the contract was awarded on or between
January 1, 2015 and January 29, 2022 and
the contract is not renewed or extended on or
after January 30, 2022:
Executive Order 13658 generally applies to
the contract. The contractor must pay all
covered workers at least $13.30 per hour (or
the applicable wage rate listed on this wage
determination, if it is higher) for all hours
spent performing on the contract in 2025.
The applicable Executive Order minimum wage rate wi ll be adjusted annually. If this contract is covered by one of the Executive Orders and a classification considered necessary for performance of work on th e contract does not appear on this wage determination, the contractor must still submit a conformance request.
Additional information on contractor requirements and worker protections under the Executive Orders is available at
http://www.dol.gov/whd/govcontracts .
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 2
Modification Number Publication Date
0 01/03/2025
1 01/10/2025
---------------------------------------------------------------- ASBE0016-004 05/01/2024
AREA 1: CALAVERAS, FRESNO, KINGS, MADERA, MARIPOSA, MERCED ,
MONTEREY, SAN BENITO, SAN JOAQUIN, SANTA CRUZ, STAN ISLAUS &
TOULMNE COUNTIES
AREA 2: ALAMEDA, CONTRA COSTA, SAN FRANCISCO, SAN MATEO & SANTA
CLARA COUNTIES
Asbestos Removal worker/hazardous material handler (Includes preparation, wetting, stripping, removal, scrapping, vacuuming, bagging and disposing of all insulation materials from mechanical systems, whether they contain asbestos or not):
Rates Fringes
Area 1......................$ 34.56 11.40
Area 2 ......................$ 36.53 9.27
---------------------------------------------------------------- ASBE0016-008 01/01/2024
AREA 1: ALAMEDA, CONTRA COSTA, MONTEREY, SAN BENITO, SAN F RANCISCO, SAN MATEO,
SANTA CLARA , & SANTA CRUZ
AREA 2: CALAVERAS, COLUSA, FRESNO, KINGS, MADERA, MARIPOSA , MERCED, SAN JOAQUIN,
STANISLAUS, & TUOLUMNE
Asbestos Workers/Insulator (Includes the application of all insulating materials, Protective Coverings , Coatings, and Finishes to all types of mechanical systems):
Rates Fringes
Area 1 ......................$ 84.76 25.07
Area 2......................$ 64.56 25.07
---------------------------------------------------------------- BOIL0549-001 01/01/2021
AREA 1: ALAMEDA, CONTRA COSTA, SAN FRANCISCO, SAN MATEO &
SANTA CLARA COUNTIES
AREA 2: REMAINING COUNTIES
BOILERMAKER
Rates Fringes
Area 1 …...................$ 49.62 41.27
Area 2…...................$ 45.60 38.99
BRCA0003-001 08/01/2023
Rates Fringes
MARBLE FINISHER..................$ 41.18 18.58 ---------------------------------------------------------------- BRCA0003-003 08/01/2023
Rates Fringes
MARBLE MASON.....................$ 60.20 28.82 ----------------------------------------------------------------
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 3
BRCA0003-005 05/01/2024
BRICKLAYER
Rates Fringes
( 1) Fresno, Kings, Madera, Mariposa, Merced $ 51.17 25.80 ( 7) San Francisco, San Mateo $ 57.02 28.50 ( 8) Alameda, Contra Costa, San Benito,
Santa Clara $ 56.94 26.28
( 9) Calaveras, San Joaquin, Stanislaus, Toulumne $ 52.76 25.01 (16) Monterey, Santa Cruz $ 54.18 27.82
---------------------------------------------------------------- BRCA0003-008 07/01/2023
Rates Fringes
TERRAZZO FINISHER................ $ 43.90 19.51 TERRAZZO WORKER/SETTER........... $ 59.06 28.31 ---------------------------------------------------------------- BRCA0003-011 04/01/2024
AREA 1: Alameda, Contra Costa, Monterey, San Benito, San Francisco, San Mateo, Santa Clara , Santa
Cruz
AREA 2: Calaveras, San Joaquin, Stanislaus, Tuolumne
AREA 3: Fresno, Kings, Madera, Mariposa, Merced
Rates Fringes
TILE FINISHER
Area 1 ......................$ 37.75 19.28
Area 2......................$ 34.76 19.22
Area 3......................$ 32.68 18.32
Tile Layer
Area 1 ......................$ 59.92 22.62
Area 2......................$ 55.17 22.52
Area 3......................$ 50.28 22.05
---------------------------------------------------------------- CARP0034-001 07/01/2021
Rates Fringes
Diver
Assistant Tender, ROV
Tender/Technician.......... $ 54.10 34.69
Diver standby............... $ 60.51 34.69
Diver Tender................ $ 59.51 34.69
Diver wet.................. $ 103.62 34.69
Manifold Operator (mixed
gas)........................ $ 64.51 34.69
Manifold Operator (Standby) $ 59.51 34.69
DEPTH PAY (Surface Diving):
050 to 100 ft $2.00 per foot
101 to 150 ft $3.00 per foot
151 to 220 ft $4.00 per foot
221 ft.-deeper $5.00 per foot
SATURATION DIVING:
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 4
The standby rate shall apply until saturation starts. The saturation diving rate applies when divers are under pressure continuously until work task and decompression are complete. The diver rate shall be paid for all saturation hours.
DIVING IN ENCLOSURES:
Where it is necessary for Divers to enter pipes or tunnels, or other enclosures where there is no vertical ascent, the following premium shall be paid: Distance traveled from entrance 26 feet to 300 feet: $1.00 per foot. When it is necessary for a diver to enter any pipe, tunnel or other enclosure less than 48" " in height, the premium will be $1.00 per foot.
WORK IN COMBINATION OF CLASSIFICATIONS:
Employees working in any combination of classifications within the diving crew (except dive supervis or) in a shift are paid in the classification with the highest rate for that shift. ---------------------------------------------------------------- CARP0034-003 07/01/2021
Rates Fringes
Piledriver.......................$ 54.10 34.69 ---------------------------------------------------------------- CARP0035-007 07/01/2020
AREA 1: Alameda, Contra Costa, San Francisco, San Mateo, Santa Clara counties
AREA 2: Monterey, San Benito, Santa Cruz Counties
AREA 3: Calaveras, Fresno, Kings, Madera, Mariposa, Merced, San Joaquin, Stanislaus, Tuolumne Counties
Rates Fringes
Modular Furniture Installer
Area 1
Installer.................. $ 28.76 22.53
Lead Installer............. $ 32.21 23.03
Master Installer........... $ 36.43 23.03
Area 2
Installer.................. $ 26.11 22.53
Lead Installer............. $ 29.08 23.03
Master Installer........... $ 32.71 23.03
Area 3
Installer.................. $ 25.16 22.53
Lead Installer............. $ 27.96 23.03
Master Installer........... $ 31.38 23.03
---------------------------------------------------------------- CARP0035-008 08/01/2020
AREA 1: Alameda, Contra Costa, San Francisco, San Mateo, Santa Clara counties
AREA 2: Monterey, San Benito, Santa Cruz Counties
AREA 3 : San Joaquin
AREA 4: Calaveras, Fresno, Kings, Madera, Mariposa, Merced, Stanislaus, Tuolumne Counties
Rates Fringes
Drywall Installers/Lathers:
Area 1......................$ 52.65 31.26
Area 2......................$ 46.77 31.26
Area 3......................$ 47.27 31.26
Area 4......................$ 45.92 31.26
Drywall Stocker/Scrapper
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 5
Area 1......................$ 26.33 18.22
Area 2......................$ 23.39 18.22
Area 3......................$ 23.64 18.22
Area 4......................$ 22.97 18.22
---------------------------------------------------------------- CARP0405-001 07/01/2021
Santa Clara County
Rates Fringes
Carpenters
Bridge Builder/Highway Carpenter $ 54.85 31.49 Hardwood Floorlayer, Shingler, Power Saw
Operator, Steel Scaffold & Steel Shoring
Erector, Saw Filer....................... $ 55.00 31.49 Journeyman Carpenter........ $ 54.85 3 1.49 Millwright.................. $ 54.95 33.08 ---------------------------------------------------------------- ELEC0332-001 06/01/2024
SANTA CLARA COUNTY
Rates F ringes
CABLE SPLICER........ $ 100.25 46.72
ELECTRICIAN......... $ 87.17 46.33
FOOTNOTES: Work under compressed air or where gas masks are required, or work on ladders, scaffolds, stacks, ""Bosun's chairs,"" or other structures and where the workers are not protected by permanent guard rails at a distance of 40 to 60 ft. from the ground or supporting structures: to be pa id one and one-half times the straight-time rate of pay. Work on structures of 60 ft. or over (as described above) to be paid twice the straight-time rate of pay.
---------------------------------------------------------------- * ELEC0332-003 12/01/2024
SANTA CLARA COUNTY
Rates Fringes
Sound & Communications
Installer................... $ 56.68 28.35
Technician.................. $ 65.18 28.61
SCOPE OF WORK: Including any data system whose o nly function is to transmit or receive information; excluding all other data systems or multiple systems which include control function or power supply; inclusion or exclusion of terminations and testings of conductors determined by their function; excluding fire alarm work when installed in raceways (including wire and cable pulling) and when performed on new or major remodel building projects or jobs for which the conductors for the fire alarm system are installed in conduit; excluding installation of raceway systems, line voltage work, industrial work, life-safety systems (all buildings having floors located more than 75' above the lowest floor level having building access); excluding energy managemen t systems.
FOOTNOTE: Fire alarm work when installed in raceways (including wire and cable pulling), on projec ts which involve new or major remodel building construction, for which the conductors for the fire alarm system are installed in the conduit, shall be performed by the inside electrician.
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 6
---------------------------------------------------------------- ELEC1245-001 06/01/2024
Rates Fringes
LINE CONSTRUCTION
(1) Lineman; Cable splicer.. $ 70.16 24.46
(2) Equipment specialist
(operates crawler
tractors, commercial motor
vehicles, backhoes,
trenchers, cranes (50 tons
and below), overhead &
underground distribution
line equipment)............. $ 53.30 22.01
(3) Groundman............... $ 40.76 21.51
(4) Powderman............... $ 51.87 18.79
HOLIDAYS: New Year's Day, M.L. King Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day and day after Thanksgiving, Christmas Day ---------------------------------------------------------------- ELEV0008-001 01/01/2024
Rates Fringes
ELEVATOR MECHANIC................ $ 80.76 37. 885+a+b FOOTNOTE:
a. PAID VACATION: Employer contributes 8% of regula r hourly rate as vacation pay credit for employees with more than 5 years of service, and 6% for 6 months to 5 years of service. b. PAID HOLIDAYS: New Year's Day, Memorial Day, Ind ependence Day, Labor Day, Veterans' Day, Thanksgiving Day, Friday after Thanksgiving, and Christmas Day. ---------------------------------------------------------------- ENGI0003-001 06/28/2023
""AREA 1"" WAGE RATES ARE LISTED BELOW
""AREA 2"" RECEIVES AN ADDITIONAL $2.00 PER HOUR AB OVE AREA 1 RATES.
AREA DESCRIPTIONS:
POWER EQUIPMENT OPERATORS, CRANES AND ATTACHMENTS,T UNNEL AND UNDERGROUND [These areas do not apply to Piledrivers and Steel Erectors]
AREA 1 : ALAMEDA, CALAVERAS, CONTRA COSTA, FRESNO, KINGS, MADERA, MARIPOSA,
MERCED, MONTEREY, SAN BENITO, SAN FRANCISCO, SAN JO AQUIN, SAN MATEO, SANTA
CLARA , SANTA CRUZ, STANISLAUS, TUOLUMNE
Rates Fringes
OPERATOR: Power Equipment (AREA 1:)
GROUP 1..................... $ 60.72 31.03
GROUP 2..................... $ 59.19 31.03
GROUP 3..................... $ 57.71 31.03
GROUP 4..................... $ 56.33 31.03
GROUP 5.................... .$ 55.06 31.03
GROUP 6.................... .$ 53.74 31.03
GROUP 7..................... $ 52.60 31.03
GROUP 8..................... $ 51.46 31.03
GROUP 8-A................... $ 49.25 31.03
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 7
OPERATOR: Power Equipment (Cranes and Attachments – (AREA 1:) GROUP 1
Cranes............... $ 52.30 31. 15
Oiler............... $ 43.79 31.1 5
Truck crane oiler.......... $ 46.08 31.15
GROUP 2
Cranes..................... $ 50.54 31.15
Oiler...................... $ 42.83 31.15
Truck crane oiler.......... $ 45.07 31.15
GROUP 3
Cranes..................... $ 48.80 31.15
Hydraulic.................. $ 44.44 31.15
Oiler...................... $ 42.55 31.15
Truck crane oiler.......... $ 44.83 31.15
GROUP 4
Cranes..................... $ 45.76 31.15
OPERATOR: Power Equipment (Piledriving - AREA 1:)
GROUP 1
Lifting devices............ $ 52.64 31.15
Oiler...................... $ 43.38 31.15
Truck Crane Oiler.......... $ 45.66 31.15
GROUP 2
Lifting devices............ $ 50.82 31.15
Oiler...................... $ 43.11 31.15
Truck Crane Oiler.......... $ 45.41 31.15
GROUP 3
Lifting devices............ $ 49.14 31.15
Oiler...................... $ 42.89 31.15
Truck Crane Oiler.......... $ 45.12 31.15
GROUP 4
Lifting devices............ $ 47.37 31.15
GROUP 5
Lifting devices............ $ 44.73 31.15
GROUP 6
Lifting devices............ $ 42.50 31.15
OPERATOR: Power Equipment (Steel Erection - AREA 1 :)
GROUP 1
Cranes..................... $ 53.27 31.15
Oiler..................... $ 43.72 31.15
Truck Crane Oiler.......... $ 45.95 31.15
GROUP 2
Cranes..................... $ 51.50 31.15
Oiler...................... $ 43.45 31.15
Truck Crane Oiler.......... $ 45.73 31.15
GROUP 3
Cranes..................... $ 50.02 31.15
Hydraulic.................. $ 45.07 31.15
Oiler...................... $ 43.23 31.15
Truck Crane Oiler.......... $ 45.46 31.15
GROUP 4
Cranes..................... $ 48.00 31.15
GROUP 5
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 8
Cranes..................... $ 46.70 31.15
OPERATOR: Power Equipment (Tunnel and Underground Work - AREA 1:) SHAFTS, STOPES, RAISES:
GROUP 1.................... $ 56.82 31.03
GROUP 1-A.................. $ 59.29 31.03
GROUP 2.................... $ 55.56 31.03
GROUP 3.................... $ 54.23 31.03
GROUP 4.................... $ 53.09 31.03
GROUP 5.................... $ 51.95 31.03
UNDERGROUND:
GROUP 1.................... $ 56.72 31.03
GROUP 1-A.................. $ 59.19 31.03
GROUP 2.................... $ 55.46 31.03
GROUP 3.................... $ 54.13 31.03
GROUP 4.................... $ 52.99 31.03
GROUP 5.................... $ 51.85 31.03
FOOTNOTE: Work suspended by ropes or cables, or w ork on a Yo-Yo Cat: $.60 per hour additional.
POWER EQUIPMENT OPERATOR CLASSIFICATIONS
GROUP 1: Operator of helicopter (when used in erection work); Hydraulic excavator, 7 cu. yds. and over; Power shovels, over 7 cu. yds.
GROUP 2: Highline cableway; Hydraulic excavator, 3-1/2 cu. yds. up to 7 cu. yds.; Licensed construction work boat operator, on site; Power blade operator (finish); Power shovels, over 1 cu. yd. up to and including 7 cu. yds. m.r.c.
GROUP 3: Asphalt milling machine; Cable backhoe; Combination backhoe and loader over 3/4 cu. yds.; Continuous flight tie back machine assistant to engineer or mechanic; Crane mounted continuous flight tie back machine, tonnage to apply; Crane mounted drill attachment, tonnage to apply; Dozer, slope brd; Gradall; Hydraulic excavator, up to 3 1/2 cu. yds.; Loader 4 cu. yds. and over; Long reach excavator; Multiple engine scraper (when used as push pull); Power shovels, up to and including 1 cu. yd.; Pre- stress wire wrapping machine; Side boom cat, 572 or larger; Track loader 4 cu. yds. and over; Wheel excavator (up to and including 750 cu. yds. per hour)
GROUP 4: Asphalt plant engineer/box person; Chicago boom; Combination backhoe and loader up to and including 3/4 cu. yd.; Concrete batch plant (wet or dry); Dozer and/or push cat; Pull- type elevat ing loader; Gradesetter, grade checker (GPS, mechanical or otherwise); Grooving and grinding machine; Heading shield operator; Heavy-duty drilling equipment, Hughes, LDH, Watson 3000 or similar; Heavy- duty repairperson and/or welder; Lime spreader; Loader under 4 cu. yds.; Lubrication and service engineer (mobile and grease rack); Mechanical finishers or spreader machine (asphalt, Barber-Greene and similar); Miller Formless M-9000 slope paver or similar; Portable crushing and screening plants; Power blade support; Roller operator, asphalt; Rubber-tired scraper, self-loading (paddle-wheels, etc.); Rubber- tired earthmoving equipment (scrapers); Slip form paver (concrete); Small tractor with drag; Soil stabilizer (P & H or equal); Spider plow and spider puller; Tubex pile rig; Unlicensed construction wo rk boat operator, on site; Timber skidder; Track loader up to 4 yds.; Tractor-drawn scraper; Tractor, compressor drill combination; Welder; Woods-Mixer (and other similar Pugmill equipment)
GROUP 5: Cast-in-place pipe laying machine; Combi nation slusher and motor operator; Concrete conveyor or concrete pump, truck or equipment mount ed; Concrete conveyor, building site; Concrete pump or pumpcrete gun; Drilling equipment, Watson 2 000, Texoma 700 or similar; Drilling and boring machinery, horizontal (not to apply to waterliners, wagon drills or jackhammers); Concrete mixer/all;
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 9
Person and/or material hoist; Mechanical finishers (concrete) (Clary, Johnson, Bidwell Bridge Deck or similar types); Mechanical burm, curb and/or curb and gutter machine, concrete or asphalt); Mine or shaft hoist; Portable crusher; Power jumbo operator (setting slip-forms, etc., in tunnels); Screed (automatic or manual); Self-propelled compactor with dozer; Tract or with boom D6 or smaller; Trenching machine, maximum digging capacity over 5 ft. depth; Vermeer T-600B rock cutter or similar
GROUP 6: Armor-Coater (or similar); Ballast jack tamper; Boom- type backfilling machine; Assistant plant engineer; Bridge and/or gantry crane; Chemical grouting machine, truck-mounted; Chip spreading machine operator; Concrete saw (self-propelled unit on streets, highways, airports and canals); Deck engineer; Drilling equipment Texoma 600, Hughes 200 Series or similar up to and including 30 ft. m.r.c.; Drill doctor; Helicopter radio operator; Hydro-hammer or similar; Line master; Skidsteer loader, Bobcat larger than 743 series or similar (with attachments); Locomotive; Lull hi-lift or similar; Oiler, truck mounted equipment; Pavement breaker, truck-mounted, with co mpressor combination; Paving fabric installation and/or laying machine; Pipe bending machine (pipelines only); Pipe wrapping machine (tractor propelled and supported); Screed (except asphaltic concrete paving); Self- propelled pipeline wrapping machine; Tractor; Self-loading chipper; Concrete barrier moving machine
GROUP 7: Ballast regulator; Boom truck or dual-purpose A-frame truck, non-rotating - under 15 tons; Cary lift or similar; Combination slurry mixer and/or cleaner; Drilling equipment, 20 ft. and under m.r.c.; Firetender (hot plant); Grouting machine operator; Highline cableway signalperson; Stationary belt loader (Kolman or similar); Lift slab machine (Vagtborg and similar types); Maginnes internal full slab vibrator; Material hoist (1 drum); Mechanical trench shield; Pavement breaker with or without compressor combination); Pipe cleaning machine (tractor propelled and supported); Post driver; Roller (except asphalt); Chip Seal; Self-propelled automatically applied concrete curing mahcine (on streets, highway s, airports and canals); Self-propelled compactor (without dozer); Signalperson; Slip-form pumps (lifting device for concrete forms); Tie spacer; Tower mobil e; Trenching machine, maximum digging capacity up to and including 5 ft. depth; Truck- type loader
GROUP 8: Bit sharpener; Boiler tender; Box operator; Brakeperson; Combination mixer and compressor (shotcrete/gunite); Compressor operator; Deckhand; Fire tender; Forklift (under 20 ft.); Generator; Gunite/shotcrete equipment operator; Hydraulic monitor; Ken seal machine (or similar); Mixermobile; Oiler; Pump operator; Refrigeration plant; Reservoir-debris tug (self- propelled floating); Ross Carrier (construction site); Rotomist operator; Self-propelled tape machine; Shuttlecar; Self-propelled power sweeper operator (includes vacuum sweeper); Slushe r operator; Surface heater; Switchperson; Tar pot firetender; Tugger hoist, single drum; Vacuum cooling plant; Welding machine (powered other than by electricity)
GROUP 8-A: Elevator operator; Skidsteer loader-Bobcat 743 series or smaller, and similar (without attachments); Mini excavator under 25 H.P. (backhoe-trencher); Tub grinder wood chipper
----------------------------------------------------------
ALL CRANES AND ATTACHMENTS
GROUP 1: Clamshell and dragline over 7 cu. yds.; Crane, over 100 tons; Derrick, over 100 tons; Derri ck barge pedestal-mounted, over 100 tons; Self-propelled boom-type lifting device, over 100 tons
GROUP 2: Clamshell and dragline over 1 cu. yd. up to and including 7 cu. yds.; Crane, over 45 tons u p to and including 100 tons; Derrick barge, 100 tons and under; Self-propelled boom-type lifting device, over 45 tons; Tower crane
GROUP 3: Clamshell and dragline up to and including 1 cu. yd.; Cranes 45 tons and under; Self- propelled boom-type lifting device 45 tons and under;
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 10
GROUP 4: Boom Truck or dual purpose A-frame truck , non-rotating over 15 tons; Truck-mounted rotating telescopic boom type lifting device, Manitex or similar (boom truck) over 15 tons; Truck-moun ted rotating telescopic boom type lifting device, Manitex or similar (boom truck) - under 15 tons;
-----------------------------------------------------------
PILEDRIVERS
GROUP 1: Derrick barge pedestal mounted over 100 tons; Clamshell over 7 cu. yds.; Self-propelled boom-type lifting device over 100 tons; Truck crane or crawler, land or barge mounted over 100 tons
GROUP 2: Derrick barge pedestal mounted 45 tons t o and including 100 tons; Clamshell up to and including 7 cu. yds.; Self-propelled boom-type lifting device over 45 tons; Truck crane or crawler, land or barge mounted, over 45 tons up to and including 100 tons; Fundex F-12 hydraulic pile rig
GROUP 3: Derrick barge pedestal mounted under 45 tons; Self- propelled boom-type lifting device 45 tons and under; Skid/scow piledriver, any tonnage; Truck crane or crawler, land or barge mounted 45 tons and under
GROUP 4: Assistant operator in lieu of assistant to engineer; Forklift, 10 tons and over; Heavy-duty repairperson/welder
GROUP 5: Deck engineer
GROUP 6: Deckhand; Fire tender
-------------------------------------------------------------
STEEL ERECTORS
GROUP 1: Crane over 100 tons; Derrick over 100 to ns; Self- propelled boom-type lifting device over 100 tons
GROUP 2: Crane over 45 tons to 100 tons; Derrick under 100 tons; Self-propelled boom-type lifting device over 45 tons to 100 tons; Tower crane
GROUP 3: Crane, 45 tons and under; Self-propelled boom-type lifting device, 45 tons and under
GROUP 4: Chicago boom; Forklift, 10 tons and over; Heavy-duty repair person/welder
GROUP 5: Boom cat
-------------------------------------------------------------- --
TUNNEL AND UNDERGROUND WORK
GROUP 1-A: Tunnel bore machine operator, 20' diam eter or more
GROUP 1: Heading shield operator; Heavy-duty repa irperson; Mucking machine (rubber tired, rail or track type); Raised bore operator (tunnels); Tunnel mole bore operator
GROUP 2: Combination slusher and motor operator; Concrete pump or pumpcrete gun; Power jumbo operator
GROUP 3: Drill doctor; Mine or shaft hoist
GROUP 4: Combination slurry mixer cleaner; Grouting Machine operator; Motorman
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 11
GROUP 5: Bit Sharpener; Brakeman; Combination mix er and compressor (gunite); Compressor operator; Oiler; Pump operator; Slusher operator
----------------------------------------------------------- ENGI0003-008 08/01/2024
Dredging: (DREDGING: CLAMSHELL & DIPPER DREDGING; H YDRAULIC SUCTION DREDGING:)
AREA 1: ALAMEDA,BUTTE, CONTRA COSTA, KINGS, MARIN, MERCED, NAPA, SACRAMENTO,
SAN BENITO, SAN FRANCISCO, SAN JOAQUIN, SAN MATEO,
SANTA CLARA , SANTA CRUZ,
SOLANO, STANISLAUS, SUTTER, YOLO, AND YUBA COUNTIES
Rates Fringes
AREA 1:
(1) Leverman............... $ 60.61 39.55
(2) Dredge Dozer; Heavy
duty repairman............. $ 55.65 39.55
(3) Booster Pump
Operator; Deck
Engineer; Deck mate;
Dredge Tender; Winch
Operator................... $ 54.53 39.55
(4) Bargeman; Deckhand;
Fireman; Leveehand; Oiler.. $ 51.23 39.55
AREA 2:
(1) Leverman............... $ 62.61 39.55
(2) Dredge Dozer; Heavy
duty repairman............. $ 57.65 39.55
(3) Booster Pump
Operator; Deck
Engineer; Deck mate;
Dredge Tender; Winch
Operator................... $ 56.53 39.55
(4) Bargeman; Deckhand;
Fireman; Leveehand; Oiler.. $ 53.23 39.55
---------------------------------------------------------------- ENGI0003-019 07/01/2024
AREA 1: ALAMEDA, BUTTE, CONTRA COSTA, KINGS, MARIN, MERCE D, NAPA, SACRAMENTO,
SAN BENITO, SAN FRANCISCO, SAN JOAQUIN, SAN MATEO,
SANTA CLARA , SANTA CRUZ,
SOLANO, STANISLAUS, SUTTER, YOLO, AND YUBA COUNTIES
Rates Fringes
OPERATOR: Power Equipment (LANDSCAPE WORK ONLY)
GROUP 1
AREA 1.....................$ 52.40 28.52
AREA 2.....................$ 54.40 28.52
GROUP 2
AREA 1.....................$ 48.80 28.52
AREA 2.....................$ 50.80 28.52
GROUP 3
AREA 1.....................$ 44.19 28.52
AREA 2.....................$ 46.19 28.52
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 12
GROUP DESCRIPTIONS:
GROUP 1: Landscape Finish Grade Operator: All finish grade work regardless of equipment used, and all equipment with a rating more than 65 HP.
GROUP 2: Landscape Operator up to 65 HP: All equ ipment with a manufacturer's rating of 65 HP or less except equipment covered by Group 1 or Group 3. The following equipment shall be included except when used for finish work as long as manufacturer's rating is 65 HP or less: A-Frame and Winch Truck, Backhoe, Forklift, Hydragraphic Seeder Machine, Rol ler, Rubber-Tired and Track Earthmoving Equipment, Skiploader, Straw Blowers, and Trencher 31 HP up to 65 HP.
GROUP 3: Landscae Utility Operator: Small Rubber- Tired Tractor, Trencher Under 31 HP.
---------------------------------------------------------------- IRON0377-001 01/01/2024
ALAMEDA, CONTRA COSTA, SAN MATEO,
SANTA CLARA COUNTIES
Rates Fringes
Ironworkers:
Fence Erector............... $ 42.53 26.26
Ornamental, Reinforcing
and Structural............. .$ 52.08 34.90
PREMIUM PAY:
$6.00 additional per hour at the following locations: China Lake Naval Test Station, Chocolate Mountains Naval Reserve-Niland, Edwards AFB, Fort I rwin Military Station, Fort Irwin Training Center- Goldstone, San Clemente Island, San Nicholas Island, Susanville Federal Prison, 29 Palms - Marine Corps, U.S. Marine Base - Barstow, U.S. Naval Air Facility - Sealey, Vandenberg AFB
$4.00 additional per hour at the following locations: Army Defense Language Institute - Monterey, Fallon Air Base, Naval Post Graduate School - Monterey, Yermo Marine Corps Logistics Center
$2.00 additional per hour at the following locations: Port Hueneme, Port Mug u, U.S. Coast Guard Station - Two Rock
---------------------------------------------------------------- LABO0067-006 07/01/2024
AREA ""1"" - ALAMEDA, CONTRA COSTA, SAN FRANCISCO, SAN MATEO A ND
SANTA CLARA
COUNTIES
AREA ""2"" - CALAVERAS, FRESNO, KINGS, MADERA, MARIPOSA, ME RCED, MONTEREY, SAN
BENITO, SAN JOAQUIN, STANISLAUS, AND TUOLUMNE COUNT IES
Rates Fringes
LABORER (ASBESTOS/MOLD/LEAD LABORER)
Area 1...................... $ 37.75 29.69
Area 2...................... $ 36.75 29.69
ASBESTOS REMOVAL-SCOPE OF WORK: Site mobilization ; initial site clean-up; site preparation; removal of asbestos-containing materials from walls and ceilings; or from pipes, boilers and mechanica l systems only if they are being scrapped; encapsulation, enclosure and disposal of asbestos-containing
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 13
materials by hand or with equipment or machinery; scaffolding; fabrication of temporary wooden barrier s; and assembly of decontamination stations.
---------------------------------------------------------------- LABO0073-005 06/26/2023
Rates Fringes
Tunnel and Shaft Laborers:
GROUP 1..................... $ 45.89 27.72
GROUP 2..................... $ 45.66 27.72
GROUP 3..................... $ 45.41 27.72
GROUP 4..................... $ 44.96 27.72
GROUP 5..................... $ 44.42 27.72
Shotcrete Specialist........ $ 46.41 27.72
TUNNEL AND SHAFT CLASSIFICATIONS
GROUP 1: Diamond driller; Groundmen; Gunite and s hotcrete nozzlemen
GROUP 2: Rodmen; Shaft work & raise (below actual or excavated ground level)
GROUP 3: Bit grinder; Blaster, driller, powdermen, heading; Cherry pickermen - where car is lifted; Concrete finisher in tunnel; Concrete screedman; Gr out pumpman and potman; Gunite & shotcrete gunman & potman; Headermen; High pressure nozzleman ; Miner - tunnel, including top and bottom man on shaft and raise work; Nipper; Nozzleman on slick line; Sandblaster - potman, Robotic Shotcrete Placer, Segment Erector, Tunnel Muck Hauler, Steel Form raiser and setter; Timberman, retimberman (wood or steel or substitute materials therefore); Tugger (for tunnel laborer work); Cable tender; Chu ck tender; Powderman - primer house
GROUP 4: Vibrator operator, pavement breaker; Bull gang - muckers, trackmen; Concrete crew - includes rodding and spreading, Dumpmen (any method )
GROUP 5: Grout crew; Reboundman; Swamper/ Brakema n
----------------------------------------------------------------
LABORER CLASSIFICATIONS
CONSTRUCTION SPECIALIST GROUP: Asphalt ironer and raker; Chainsaw; Laser beam in connection with laborers' work; Cast-in- place manhole form setter; Pressure pipelayer; Davis trencher - 300 or similar type (and all small trenchers); Blaster; Diamond driller; Multiple unit drill; Hydraulic drill
GROUP 1: Asphalt spreader boxes (all types); Barko, Wacker and similar type tampers; Buggymobile; Caulker, bander, pipewrapper, conduit layer, plastic pipelayer; Certified hazardous waste worker inclu ding Leade Abatement; Compactors of all types; Concrete and magnesite mixer, 1/2 yd. and under; Concrete pan work; Concrete sander; Concrete saw; Cribber an d/or shoring; Cut granite curb setter; Dri-pak-it machine; Faller, logloader and bucker; Form raiser, slip forms; Green cutter; Headerboard, Hubsetter, aligner, by any method; High pressure blow pipe (1-1/2"" or over, 100 lbs. pressure/over); Hydro seeder and similar type; Jackhammer operator; Jacking of pipe over 12 inches; Jackson and similar type compactor; Kettle tender, pot and worker applying asphalt, lay-kold, creosote, lime, caustic and similar type materials (applying means applying, dipping or handling of such materials); Lagging, sheeting, whaling, bracing, trenchjacking, lagging hammer; Magnesite, epoxyresin, fiberglass, mastic worker (wet or dry); No joint pipe and stripping of same, including repair of voids; Pavement breaker and spader, including tool grinder; Perma curb; Pipelayer (including grade checking in connection with pipelaying) ;
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 14
Precast-manhole setter; Pressure pipe tester; Post hole digger, air, gas and electric; Power broom sweeper; Power tampers of all types (except as shown in Group 2); Ram set gun and stud gun; Riprap stonepaver and rock-slinger, including placing of sacked concrete and/or sand (wet or dry) and gabions and similar type; Rotary scarifier or multiple head concrete chipping scarifier; Roto and Ditch Witch; Rototiller; Sandblaster, pot, gun, nozzle operators; Signalling and rigging; Tank cleaner; Tree climber; Turbo blaster; Vibrascreed, bull float in connection with laborers' work; Vibrator; Hazardous waste worker (lead removal); Asbestos and mold removal worker
GROUP 1-a: Joy drill model TWM-2A; Gardner-Denver model DH143 and similar type drills; Track driller; Jack leg driller; Wagon driller; Mechanical drillers, all types regardless of type or method of power; Mechanical pipe layers, all types regardless of type or method of power; Blaster and powder; All work of loading, placing and blasting of all powder and explosives of whatever type regardless of method used for such loading and placing; High scalers (including drilling of same); Tree topper; Bit grinder
GROUP 1-b: Sewer cleaners shall receive $4.00 per d ay above Group 1 wage rates. ""Sewer cleaner"" means any worker who handles or comes in contact wi th raw sewage in small diameter sewers. Those who work inside recently active, large diameter sewers, and all recently active sewer manholes shal receive $5.00 per day above Group 1 wage rates.
GROUP 1-c: Burning and welding in connection with laborers' work; Synthetic thermoplastics and similar type welding
GROUP 1-d: Maintenance and repair track and road beds. All employees performing work covered herein shall receive $ .25 per hour above their regular rate for all work performed on underground structures not specifically covered herein. This paragraph shall not be construed to apply to work be low ground level in open cut. It shall apply to cut and cover work of subway construction after the temporary cover has been placed.
GROUP 1-e: Work on and/or in bell hole footings and shafts thereof, and work on and in deep footings. (A deep footing is a hole 15 feet or more in depth.) In the event the depth of the footing is unknown at the commencement of excavation, and the final depth exc eeds 15 feet, the deep footing wage rate would apply to all employees for each and every day worke d on or in the excavation of the footing from the date of inception.
GROUP 1-f: Wire winding machine in connection wit h guniting or shotcrete
GROUP 2: Asphalt shoveler; Cement dumper and hand ling dry cement or gypsum; Choke-setter and rigger (clearing work); Concrete bucket dumper and chute; Concrete chipping and grinding; Concrete laborer (wet or dry); Driller tender, chuck tender, nipper; Guinea chaser (stake), grout crew; High pr essure nozzle, adductor; Hydraulic monitor (over 100 lbs. pressure); Loading and unloading, carrying and hauling of all rods and materials for use in reinforcing concrete construction; Pittsburgh chipper and similar type brush shredders; Sloper; Single foot, hand-held, pneumatic tamper; All pneumatic, air, gas and electric tools not listed in Groups 1 through 1-f; Jacking of pipe - under 12 inches
GROUP 3: Construction laborers, including bridge and general laborer; Dump, load spotter; Flag person; Fire watcher; Fence erector; Guardrail erector; Gardener, horticultural and landscape laborer; Jetting; Limber, brush loader and piler; Pavement marker (button setter); Maintenance, repair track and road beds; Streetcar and railroad construction track laborer; Temporary air and water lines, Victaulic or similar; Tool room attendant (jobsite only)
GROUP 4: Final clean-up work of debris, grounds and building including but not limited to: street cleaner; cleaning and washing windows; brick cleaner (jobsite only); material cleaner (jobsite only). The classification ""material cleaner"" is to be utilized under the following conditions:
A: at demolition site for the salvage of the material.
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 15
B: at the conclusion of a job where the material is to be salvaged and stocked to be reused on another job.
C: for the cleaning of salvage material at the jobsite or temporary jobsite yard.
The material cleaner classification should not be used in the performance of ""form stripping, clea ning and oiling and moving to the next point of erection"".
--------------------------------------------------------
GUNITE LABORER CLASSIFICATIONS
GROUP 1: Structural Nozzleman
GROUP 2: Nozzleman, Gunman, Potman, Groundman
GROUP 3: Reboundman
GROUP 4: Gunite laborer
----------------------------------------------------------
WRECKING WORK LABORER CLASSIFICATIONS
GROUP 1: Skilled wrecker (removing and salvaging of sash, windows and materials)
GROUP 2: Semi-skilled wrecker (salvaging of other building materials)
---------------------------------------------------------------- LABO0270-003 07/01/2023
AREA A :
SANTA CLARA
AREA B : MONTEREY, SAN BENITO AND SANTA CRUZ COUNTIES
Rates Fringes
LABORER (TRAFFIC CONTROL/LANE
CLOSURE)
Escort Driver, Flag Person
Area A..................... $ 37.26 27.30
Area B..................... $ 36.26 27.30
Traffic Control Person I
Area A..................... $ 37.56 27.30
Area B..................... $ 36.56 27.30
Traffic Control Person II
Area A..................... $ 35.06 27.30
Area B..................... $ 34.06 27.30
TRAFFIC CONTROL PERSON I: Layout of traffic contr ol, crash cushions, construction area and roadside signage.
TRAFFIC CONTROL PERSON II: Installation and remov al of temporary/permanent signs, markers, delineators and crash cushions.
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 16
---------------------------------------------------------------- LABO0270-004 06/26/2023
MONTEREY, SAN BENITO,
SANTA CLARA , AND SANTA CRUZ COUNTIES
Rates Fringes
Tunnel and Shaft Laborers:
GROUP 1.................... .$ 45.89 27.72
GROUP 2..................... $ 45.66 27.72
GROUP 3.................... .$ 45.41 27.72
GROUP 4..................... $ 44.96 27.72
GROUP 5..................... $ 44.42 27.72
Shotcrete Specialist........ $ 46.41 27.72
TUNNEL AND SHAFT CLASSIFICATIONS
GROUP 1: Diamond driller; Groundmen; Gunite and s hotcrete nozzlemen
GROUP 2: Rodmen; Shaft work & raise (below actual or excavated ground level)
GROUP 3: Bit grinder; Blaster, driller, powdermen, heading; Cherry pickermen - where car is lifted; Concrete finisher in tunnel; Concrete screedman; Gr out pumpman and potman; Gunite & shotcrete gunman & potman; Headermen; High pressure nozzleman ; Miner - tunnel, including top and bottom man on shaft and raise work; Nipper; Nozzleman on slick line; Sandblaster - potman, Robotic Shotcrete Placer, Segment Erector, Tunnel Muck Hauler, Steel Form raiser and setter; Timberman, retimberman (wood or steel or substitute materials therefore); Tugger (for tunnel laborer work); Cable tender; Chu ck tender; Powderman - primer house
GROUP 4: Vibrator operator, pavement breaker; Bull gang - muckers, trackmen; Concrete crew - includes rodding and spreading, Dumpmen (any method )
GROUP 5: Grout crew; Reboundman; Swamper/ Brakema n
---------------------------------------------------------------- LABO0270-011 07/01/2023
MONTEREY, SAN BENITO, SANTA CRUZ,
SANTA CLARA COUNTIES
Rates Fringes
LABORER (Plaster Tender)......... $ 40.68 29.68
Work on a swing stage scaffold: $1.00 per hour additional. ---------------------------------------------------------------- PAIN0016-001 01/01/2024
ALAMEDA, CONTRA COSTA, MONTEREY, SAN BENITO, SAN MA TEO,
SANTA CLARA , AND SANTA
CRUZ COUNTIES
Rates Fringes
Painters:........................ $ 50.51 27.66
PREMIUMS :
EXOTIC MATERIALS - $1.25 additional per hour.
SPRAY WORK: - $0.50 additional per hour.
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 17
INDUSTRIAL PAINTING - $0.25 additional per hour
[Work on industrial buildings used for the manufacture and processing of goods for sale or service; steel construction (bridges), stacks, towers, tanks, and similar structures]
HIGH WORK:
over 50 feet - $2.00 per hour additional
100 to 180 feet - $4.00 per hour additional
Over 180 feet - $6.00 per houir additional
---------------------------------------------------------------- PAIN0016-003 01/01/2024
AREA 1: ALAMEDA, CONTRA COSTA, SAN FRANCISCO, SAN MATEO &
SANTA CLARA COUNTIES
AREA 2: CALAVERAS, MARIPOA, MERCED, MONTEREY, SAN B ENITO, SAN JOAQUIN, SANTA
CRUZ, STANISLAUS & TUOLUMNE COUNTIES
Rates Fringes
Drywall Finisher/Taper
AREA 1...................... $ 60.41 31.34
AREA 2...................... $ 56.28 29.94
---------------------------------------------------------------- PAIN0016-012 01/01/2024
ALAMEDA, CONTRA COSTA, MARIPOSA, MERCED, MONTEREY, SAN BENITO, SAN FRANCISCO,
SAN MATEO,
SANTA CLARA AND SANTA CRUZ COUNTIES
Rates Fringes
SOFT FLOOR LAYER............. $ 59.00 33 .03 ---------------------------------------------------------------- PAIN0169-005 01/01/2024
ALAMEDA CONTRA COSTA, MONTEREY, SAN BENITO, SAN FRA NCISCO, SAN MATEO, SANTA
CLARA & SANTA CRUZ COUNTIES
Rates Fringes
GLAZIER.......................... $ 56.22 34.00 ---------------------------------------------------------------- PAIN1176-001 07/01/2022
HIGHWAY IMPR0VEMENT
Rates Fringes
Parking Lot Striping/Highway
Marking:
GROUP 1..................... $ 40.83 17.62
GROUP 2..................... $ 34.71 17.62
GROUP 3..................... $ 35.11 17.62
CLASSIFICATIONS
GROUP 1: Striper: Layout and application of painted traffic stripes and marking; hot thermo plastic; tape, traffic
stripes and markings
GROUP 2: Gamecourt & Playground Installer
GROUP 3: Protective Coating, Pavement Sealing
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 18
---------------------------------------------------------------- PLAS0300-001 07/01/2018
Rates Fringes
PLASTERER
AREA 188: Fresno........... $ 32.70 31.68 AREA 224: San Benito,
Santa Clara , Santa Cruz.... $ 32.88 31.68
AREA 295: Calaveras & San Joaquin Counties... $ 32.70 31.68 AREA 337: Monterey County.. $ 32.88 31.68 AREA 429: Mariposa, Merced, Stanislaus,
Tuolumne Counties........... $ 32.70 31.68 ---------------------------------------------------------------- PLAS0300-005 07/01/2016
Rates Fringes
CEMENT MASON/CONCRETE FINISHER... $ 32.15 23.27 ---------------------------------------------------------------- PLUM0355-004 07/01/2024
ALAMEDA, CALAVERAS, CONTRA COSTA, FRESNO, KINGS, MA DERA, MARIPOSA, MERCED,
MONTEREY, SAN BENITO, SAN JOAQUIN, SAN MATEO,
SANTA CLARA , SANTA CRUZ,
STANISLAUS, AND TUOLUMNE COUNTIES:
Rates Fringes
Underground Utility Worker
/Landscape Fitter...........$ 34.51 18.30
---------------------------------------------------------------- PLUM0393-001 07/01/2021
SAN BENITO AND
SANTA CLARA COUNTIES
Rates Fringes
PLUMBER/PIPEFITTER...............$ 68.76 46.63 ---------------------------------------------------------------- ROOF0095-002 08/01/2023
MONTEREY, SAN BENITO,
SANTA CLARA , AND SANTA CRUZ COUNTIES:
Rates Fringes
ROOFER
Bitumastic, Enameler, Coal
Tar, Pitch and Mastic
worker......................$ 57.17 21.51
Journeyman..................$ 53.17 21.51
Kettle person (2 kettles)...$ 55.17 21.51
---------------------------------------------------------------- SFCA0483-001 08/01/2024
ALAMEDA, CONTRA COSTA, SAN FRANCISCO, SAN MATEO AND
SANTA CLARA COUNTIES:
Rates Fringes
SPRINKLER FITTER (FIRE)..........$ 79.13 38.51
----------------------------------------------------------------
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 19
SHEE0104-001 07/01/2020
AREA 1: ALAMEDA, CONTRA COSTA, SAN FRANCISCO, SAN MATEO,
SANTA CLARA
AREA 2: MONTEREY & SAN BENITO
AREA 3: SANTA CRUZ
SHEET METAL WORKER
Rates Fringes
AREA 1:
Mechanical Contracts
under $200,000............. $ 55.92 45.29
All Other Work............. $ 64.06 46.83
AREA 2...................... $ 52.90 36.44
AREA 3..................... . $ 55.16 34.18
---------------------------------------------------------------- SHEE0104-015 07/01/2020
ALAMEDA, CONTRA COSTA, MONTEREY, SAN BENITO, SAN FR ANCISCO, SAN MATEO, SANTA
CLARA AND SANTA CRUZ COUNTIES:
Rates Fringes
SHEET METAL WORKER (Metal Decking and Siding only) $ 44.45 35.55 ---------------------------------------------------------------- TEAM0094-001 07/01/2024
Truck drivers:
Rates Fringes
GROUP 1..................... $ 41.54 33.25
GROUP 2..................... $ 41.84 33.25
GROUP 3..................... $ 42.14 33.25
GROUP 4..................... $ 42.49 33.25
GROUP 5..................... $ 42.84 33.25
FOOTNOTES:
Articulated dump truck; Bulk cement spreader (with or without auger); Dumpcrete truck; Skid truck (debris box); Dry pre-batch concrete mix trucks; Dumpster or similar type; Slurry truck: Use dump truck yardage rate. Heater planer; Asphalt burner; Scarifier burner; Industrial lift truck (mechanical tailgate); Utility and clean-up truck: Use appropriate rate for the power unit or the equipment utilized.
TRUCK DRIVER CLASSIFICATIONS
GROUP 1: Dump trucks, under 6 yds.; Single unit flat rack (2- axle unit); Nipper truck (when flat rack truck is used appropriate flat rack shall apply); Concrete pump truck (when flat rack truck is used appropriate flat rack shall apply); Concrete pump m achine; Fork lift and lift jitneys; Fuel and/or grease truck driver or fuel person; Snow buggy; Steam cleaning; Bus or personhaul driver; Escort or pilot car driver; Pickup truck; Teamster oiler/greaser and/or serviceperson; Hook tender (including loading and unloading); Team driver; Tool room attendant (refineries)
GROUP 2: Dump trucks, 6 yds. and under 8 yds.; Tr ansit mixers, through 10 yds.; Water trucks, under 7,000 gals.; Jetting trucks, under 7,000 gals.; Single-unit flat rack (3-axle unit); Highbed heavy duty transport; Scissor truck; Rubber-tired muck car (not self-loaded); Rubber-tired truck jumbo; Winch truck and ""A"" frame drivers; Combination winch truck with hoist; Road oil truck or bootperson; Buggymobile; Ross, Hyster and similar straddle carriers; Small rubber-tired tractor
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 20
GROUP 3: Dump trucks, 8 yds. and including 24 yds .; Transit mixers, over 10 yds.; Water trucks, 7,000 gals. and over; Jetting trucks, 7,000 gals. and over; Vacuum trucks under 7500 gals. Trucks towing til t bed or flat bed pull trailers; Lowbed heavy duty transport; Heavy duty transport tiller person; Self- propelled street sweeper with self-contained refuse bin; Boom truck - hydro-lift or Swedish type exten sion or retracting crane; P.B. or similar type self-loading truck; Tire repairperson; Combination bootperson and road oiler; Dry distribution truck (A bootperson when employed on such equipment, shall receive the ra te specified for the classification of road oil trucks or bootperson); Ammonia nitrate distributor, driver and mixer; Snow Go and/or plow
GROUP 4: Dump trucks, over 25 yds. and under 65 y ds.; Water pulls - DW 10's, 20's, 21's and other similar equipment when pulling Aqua/pak or water tank trailers; Helicopter pilots (when transporting men and materials); Lowbedk Heavy Duty Transport up to including 7 axles; DW10's, 20's, 21's and other similar Cat type, Terra Cobra, LeTourneau Pulls, Tournorocker, Euclid and similar type equipment when pulling fuel and/or grease tank trailers or other miscellaneous trailers; Vacuum Trucks 7500 gals and over and truck repairman
GROUP 5: Dump trucks, 65 yds. and over; Holland h auler; Low bed Heavy Duty Transport over 7 axles
---------------------------------------------------------------- WELDERS - Receive rate prescribed for craft perform ing operation to which welding is incidental.
=================================================== ============= ** Workers in this classification may be entitled to a higher minimum wage under Executive Order 14026 ($17.75) or 13658 ($13.30). Please see the Note at the top of the wage determination for more information. Please also note that the minimum wage requirements of Executive Order 14026 are not currently being enforced as to any contract or subcontract to which the states of Texas, Louisiana, or Mississippi, including their agencies, are a party.
Note: Executive Order (EO) 13706, Establishing Paid Sick Leave for Federal Contractors applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2017. If this contract is covered by the EO, the contractor must provide employees with 1 hour of paid sick leave for every 30 hours they work, up to 56 hours of paid sick lea ve each year.
Employees must be permitted to use paid sick leave for their own illness, injury or other health-related needs, including preventive care; to assist a family member (or person who is like family to the employee) who is ill, injured, or has other health-related needs, including preventive care; or for reasons resu lting from, or to assist a family member (or person who is like family to the employee) who is a victim of, domestic violence, sexual assault, or stalking. Additional information on contractor requirements and worker protections under the EO is available at
https://www.dol.gov/agencies/whd/government-contrac ts.
Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (iii)).
---------------------------------------------------------------- The body of each wage determination lists the classifications and wage rates that have been found to b e prevailing for the type(s) of construction and geographic area covered by the wage determination. The classifications are listed in alphabetical order under rate identifiers indicating whether the particular rate is a union rate (current union negotiated rate), a survey rate, a weighted union average rate, a state adopted rate, or a supplemental classification rate.
Union Rate Identifiers
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 21
A four-letter identifier beginning with characters other than ""SU"", ""UAVG"", ?SA?, or ?SC? denotes that a union rate was prevailing for that classification in the survey. Example: PLUM0198-005 07/01/2024.
PLUM is an identifier of the union whose collective ly bargained rate prevailed in the survey for this classification, which in this example would be Plumbers. 0198 indicates the local union number or district council number where applicable, i.e., Plumbers Loc al 0198. The next number, 005 in the example, is an internal number used in processing the wage determination. The date, 07/01/2024 in the example, is the effective date of the most current negotiated rate.
Union prevailing wage rates are updated to reflect all changes over time that are reported to WHD in the rates in the collective bargaining agreement (CBA) governing the classification.
Union Average Rate Identifiers
The UAVG identifier indicates that no single rate prevailed for those classifications, but that 100% of the data reported for the classifications reflected union rates. EXAMPLE: UAVG-OH-0010 01/01/2024. UAVG indicates that the rate is a weighted union average rate. OH indicates the State of Ohio.The next numb er, 0010 in the example, is an internal number used in producing the wage determination. The date, 01/01/2024 in the example, indicates the date the wage determination was updated to reflect the most current union average rate.
A UAVG rate will be updated once a year, usually in January, to reflect a weighted average of the curr ent rates in the collective bargaining agreements on which the rate is based.
Survey Rate Identifiers
The ""SU"" identifier indicates that either a single non-union rate prevailed (as defined in 29 CFR 1. 2) for this classification in the survey or that the rate was derived by computing a weighted average rate ba sed on all the rates reported in the survey for that classification. As a weighted average rate includes all rates reported in the survey, it may include both union and non-union rates. Example: SUFL2022-007 6/27/2024. SU indicates the rate is a single non-union prevailing rate or a weighted average of survey data for that classification. FL indicates the State of Florida. 2022 is the year of the survey on which these classifications and rates are based. The next number, 007 in the example, is an internal number used i n producing the wage determination. The date, 6/27/20 24 in the example, indicates the survey completion date for the classifications and rates under that identifier.
?SU? wage rates typically remain in effect until a new survey is conducted. However, the Wage and Hour Division (WHD) has the discretion to update such rates under 29 CFR 1.6(c)(1).
State Adopted Rate Identifiers
The ""SA"" identifier indicates that the classifications and prevailing wage rates set by a state (or local) government were adopted under 29 C.F.R 1.3(g)-(h). Example: SAME2023-007 01/03/2024. SA reflects that the rates are state adopted. ME refers to the State of Maine. 2023 is the year during which the state completed the survey on which the listed classifications and rates are based. The next number, 007 in the example, is an internal number used in producing the wage determination. The date, 01/03/2024 in the example, reflects the date on which the classifications and rates under the ?SA? identifier took effect under state law in the state from which the rates were adopted.
-----------------------------------------------------------
WAGE DETERMINATION APPEALS PROCESS
1) Has there been an initial decision in the matter? This can be:
a) a survey underlying a wage determination
b) an existing published wage determination
Photovoltaic Systems Design and Installation Project APPENDIX A – DAVIS-BACON Project 2025-02 Page 22
c) an initial WHD letter setting forth a position on a wage determination matter d) an initial conformance (additional classification and rate) determination
On survey related matters, initial contact, including requests for summaries of surveys, should be dir ected to the WHD Branch of Wage Surveys. Requests can be submitted via email to [email protected]
or by mail to:
Branch of Wage Surveys
Wage and Hour Division
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210
Regarding any other wage determination matter such as conformance decisions, requests for initial decisions should be directed to the WHD Branch of Construction Wage Determinations. Requests can be submitted via email to
[email protected] or by mail to:
Branch of Construction Wage Determinations
Wage and Hour Division
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210
2) If an initial decision has been issued, then any interested party (those affected by the action) that disagrees with the decision can request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Part 1.8 and 29 CFR Part 7). Requests for review and reconsideration can be submitted via email to
[email protected] or by mail to:
Wage and Hour Administrator
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210
The request should be accompanied by a full stateme nt of the interested party's position and any information (wage payment data, project description, area practice material, etc.) that the requestor considers relevant to the issue.
3) If the decision of the Administrator is not favorable, an interested party may appeal directly to the Administrative Review Board (formerly the Wage Appe als Board). Write to:
Administrative Review Board
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210.
=================================================== =============
END OF APPENDIX A