CC 02-04-2025 Searchable Packet.pdf — Cupertino City Council, February 4, 2025 (part 1 of 5)

CITY OF CUPERTINO

CITY COUNCIL
AGENDA
10350 Torre Avenue, Council Chamber and via Teleconference Tuesday, February 4, 2025
6:45 PM
Televised Regular Meeting (6:45)

IN-PERSON AND TELECONFERENCE / PUBLIC PARTICIPATION INFORMATION Members of the public wishing to observe the meeting may do so in one of the following ways:
1) Attend in person at Cupertino Community Hall, 10350 Torre Avenue. 2) Tune to Comcast Channel 26 and AT&T U-Verse Channel 99 on your TV. 3) The meeting will also be streamed live on and online at www.Cupertino.org/youtube and www.Cupertino.org/webcast
Members of the public wishing to comment on an item on the agenda may do so in the following ways:
1) Appear in person at Cupertino Community Hall
2) E-mail comments by 4:00 p.m. on Tuesday, February 4 to the Council at [email protected]. These e-mail comments will also be forwarded to Councilmembers by the City Clerk’s office before the meeting and posted to the City’s website after the meeting. Members of the public that wish to share a document must email [email protected] prior to the meeting.

Emailed comments that are related to an agenda item and received following the agenda publication, prior to or during the meeting, will be posted to the City’s website.

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

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

Oral public comments may be made during the public comment period for each agenda

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item.

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

Completion of Speaker Cards and identifying yourself is voluntary and not required to attend the meeting or provide comments.
3) Teleconferencing Instructions
To address the City Council, click on the link below to register in advance and access the meeting:

Online
Register in advance for this webinar:
https://cityofcupertino.zoom.us/webinar/register/WN_9viqqNIaSiyNDcuEQAgQPg Phone
Dial: 669-900-6833 and enter Webinar ID: 967 6519 5426 (Type *9 to raise hand to speak, *6 to unmute yourself). Unregistered participants will be called on by the last four digits of their phone number.

Join from an H.323/SIP room system:

H.323:
144.195.19.161 (US West)
206.247.11.121 (US East)
Meeting ID: 967 6519 5426
SIP: [email protected]
After registering, you will receive a confirmation email containing information about joining the webinar.

Please read the following instructions carefully:

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

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

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name, you may enter “Cupertino Resident” or similar designation.

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

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

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

CALL TO ORDER

PLEDGE OF ALLEGIANCE

ROLL CALL

CLOSED SESSION REPORT

CEREMONIAL ITEMS

1. Subject: Recognition of STEM Winners from the City of Cupertino who participated in the Santa Clara County 2024 Synopsys Championship Science Fair Recommended Action: Recognize the STEM Winners from the City of Cupertino who participated in the Santa Clara County 2024 Synopsys Championship Science Fair A - Certificates of Appreciation

2. Subject: Recognition of February as Black History Month Recommended Action: Recognize February as Black History Month

POSTPONEMENTS AND ORDERS OF THE DAY

ORAL COMMUNICATIONS
This portion of the meeting is reserved for persons wishing to address the Council on any matter within the jurisdiction of the Council and not on the agenda for discussion. The total time for Oral Communications will ordinarily be limited to one hour. Individual speakers are limited to three (3) minutes. As necessary, the Chair may further limit the time allowed to individual speakers, or reschedule remaining comments to the end of the meeting on a first come first heard basis, with priority given to students. In most cases, State law will prohibit the Council from discussing or making any decisions with respect to a matter not listed on the agenda. A councilmember may, however, briefly respond to statements made or questions posed by speakers. A councilmember may also ask a question for clarification, provide a reference for factual information, request staff to report back concerning a

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matter, or request that an item be added to a future City Council agenda in response to public comment.

CONSENT CALENDAR (Items 3-7)
Items appearing on the Consent Calendar are considered routine City business and may be approved by one motion. Typical items may include meeting minutes, awards of contracts, the ratification of accounts payable, and second readings of ordinances. Any member of the Council may request to have an item removed from the Consent Calendar based on the rules set forth in the City Council Procedures Manual. Members of the public may provide input on one or more consent calendar items when the Mayor asks for public comments on the Consent Calendar.

3. Subject: Approval of December 12, 2024 City Council minutes Recommended Action: Approve the December 12, 2024 City Council minutes A - Draft Minutes

4. Subject: Approval of January 22, 2025 City Council minutes Recommended Action: Approve the January 22, 2025 City Council minutes A - Draft Minutes

5. Subject: Tyler New World Enterprise Resource Planning (ERP) replacement Recommended Action: Adopt Resolution No. 25-007 approving Budget Modification No. 2425-380 increasing appropriations in the amount of $3,744,526 in the General Fund Applications Budget unit (100-32-308 750-237) for the Tyler New World Enterprise Resource Planning (ERP) replacement
Staff Report
A - Draft Resolution

6. Subject: City Bridge Preventive Maintenance Project grant acceptance and budget adjustment.

Recommended Action: 1. Adopt Resolution No. 25-008 accepting $1,893,195 in Federal grants from the Federal Highway Administration's Bridge Preventative Maintenance Program for the City Bridge Preventive Maintenance Repairs Project.

2. Adopt Resolution No. 25-009 approving budget modification #2425-373 approving an increase of Federal grant revenue estimates of $1,893,195 and an appropriation of $1,176,105 in the Transportation Fund (270-90-960).

Staff Report
A - Draft Resolution Grant Acceptance
B - Draft Resolution Budget Modification

7. Subject: Approval of a Final Map and the Subdivision Improvement Agreement for the 6-Unit Domme Enclave Development Project (Tract No. 10608; Applicant AlphaMcClellan, LLC; Location: 20860 McClellan Road; APN: 359-20-030).

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Recommended Action: Adopt Resolution No. 25-010:
1) Approving the final map consisting of Tract No. 10608. 2) Accepting the street dedication and public easements and abandoning redundant communication easement as shown on the map.
3) Authorizing the City Engineer to execute and record the Subdivision Improvement Agreement.

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

ACTION CALENDAR

8. Subject: Future agenda items requested by City Councilmembers (“TBD List”) (Continued from the January 22, 2025 City Council meeting) Recommended Action: 1. Review the TBD list and adopt the staff recommendations for items 5-11

2. Provide direction for items 1-4 and 12-15.

January 22, 2025 Staff Report
A - TBD List from September 2024 with Adopted Motion
B - January 2025 TBD List

9. Subject: Award a construction contract to Golden Bay Construction in the amount of $1,569,798, approve a first amendment to the design services contract with Pakpour Consulting Group to increase the contract by $96,620 for a total not-to-exceed contract amount of $310,483 and approve a budget modification in the amount of $1,500,000 for the Stevens Creek Boulevard Class IV Bike Lane Project

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Recommended Action: 1. Award a construction contract for the Stevens Creek Boulevard Class IV Bike Lane Phase 2A Project (budget unit 420-99-036, project number 2022-15) in the amount of $1,569,798 to Golden Bay Construction, Inc.;

2. Authorize the City Manager to execute the construction contract with Golden Bay Construction, Inc. when all conditions have been met;

3. Authorize the Director of Public Works to execute any necessary construction change orders up to a construction contingency amount of $156,980 (10%) for a total contract amount of $1,726,778;

4. Authorize the City Manager to amend the Design Services Contract with Pakpour Consulting Group to increase the amount by $96,620 for a total not-to-exceed contract amount of $310,483 for the 2022-11 Stevens Creek Boulevard Class IV Bike Lane Phase 2B Design Project; and

10. Subject: Award of a design-build contract to Syserco Energy Solutions for $4,339,881 and award a project management and construction management agreement to 4Leaf, Inc. for $225,000 for the Photovoltaic Systems Design and Installation Capital Improvement Programs Project.

Recommended Action: 1. Award a design-build contract for the Photovoltaic Systems Design and Installation Project (budget unit 420-99-274) in the amount of $3,939,881 with Syserco Energy Solutions, Inc., as the Design-Build Entity.

2. Authorize the City Manager to execute the design-build contract with Syserco Energy Solutions, Inc. with substantially similar terms as those in the draft contract in Attachment A, when all conditions have been met.

3. Authorize the Director of Public Works to execute any necessary change orders up to a contingency amount of $400,000 (approximately 10%) for a total contract amount of $4,339,881.

4. Authorize the City Manager to execute a professional services agreement with 4Leaf, Inc. for project and construction management services, for a total not-to-exceed contract amount of $225,000.

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Staff Report
A -Draft Design Build Contract
B - Draft Profesional Services Agreement 250127
C - FY 24-25 CIP Project Narratives Excerpt
D - RFP for Design Build Entity Draft

STUDY SESSION

11. Subject: Study Session for the use of Committed Future Use Reserve one-time funds (Continued from the January 22, 2025 City Council meeting) Recommended Action: Provide staff direction on the future allocation of how the City should allocate one-time funds from the future use reserve January 22, 2025 Staff Report
A - November 19, 2024 Staff Report and Allocation Plan
B - FY 2023-24 Budget Reductions
C - FY 2024-25 Service Level Reductions

12. Subject: Study session on revisions to the Cupertino City Council Procedures Manual Recommended Action: Consider revisions to the Cupertino City Council Procedures Manual
Staff Report
A - Resolution No. 24-024 (Cupertino City Council Procedures Manual)

ITEMS REMOVED FROM THE CONSENT CALENDAR

CITY MANAGER REPORT

ORAL COMMUNICATIONS - CONTINUED

COUNCILMEMBER REPORTS

13. Subject: Councilmember Reports
A - Councilmember Report, Chao
B - Councilmember Report, Fruen
C - Councilmember Report, Mohan
D - Councilmember Report, Wang

FUTURE AGENDA ITEMS

ADJOURNMENT
Lobbyist Registration and Reporting Requirements: Individuals who influence or attempt to influence legislative or administrative action may be required by the City of Cupertino’s lobbying ordinance (Cupertino Municipal Code Chapter 2.100) to register and report lobbying activity. Persons whose communications regarding any legislative or administrative are solely limited to appearing at or submitting testimony for any public meeting held by the City are not required to register as lobbyists.

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For more information about the lobbying ordinance, please contact the City Clerk’s Office at 10300 Torre Avenue, Cupertino, CA 95014; telephone (408) 777-3223; email [email protected]; and website: www.cupertino.org/lobbyist.

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

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

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

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

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

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

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CITY OF CUPERTINO
Agenda Item
25-13625 Agenda Date: 2/4/2025
Agenda #: 1.

Subject: Recognition of STEM Winners from the City of Cupertino who participated in the Santa Clara County 2024 Synopsys Championship Science Fair
Recognize the STEM Winners from the City of Cupertino who participated in the Santa Clara County 2024 Synopsys Championship Science Fair
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In recognition of your performance in the Santa Clara County 2024 Synopsys Championship Science Fair. The City of Cupertino commends you for your achievement and wishes you the best of luck in your future endeavors. t·~ CAM
The Honorable Liang Chao
Mayor, City of Cupertino
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CITY OF

CUPERTINO
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Presented to
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February 4, 2025
In recognition of your performance in the Santa Clara County 2024 Synopsys Championship Science Fair. The City of Cupertino commends you for your achievement and wishes you the best of luck in your future endeavors. t_-~ CAM
The Honorable Liang Chao
Mayor, City of Cupertino
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CITY OF

CUPERTINO
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Presented to
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Februaiy 4, 2025
In recognition of your performance in the Santa Clara County 2024 Synopsys Championship Science Fair. The City of Cupertino commends you for your achievement and wishes you the best of luck in your future endeavors. t_-~ CAM
The Honorable Liang Chao
Mayor, City of Cupertino
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CITY OF CUPERTINO
Agenda Item
25-13627 Agenda Date: 2/4/2025
Agenda #: 2.

Subject: Recognition of February as Black History Month Recognize February as Black History Month
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CITY OF CUPERTINO
Agenda Item
25-13673 Agenda Date: 2/4/2025
Agenda #: 3.

Subject: Approval of December 12, 2024 City Council minutes Approve the December 12, 2024 City Council minutes
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DRAFT MINUTES

CUPERTINO CITY COUNCIL
Thursday, December 12, 2024

SPECIAL MEETING
At 6:02 p.m., Mayor Sheila Mohan called the Special City Council Meeting to order in the Cupertino Community Hall Council Chamber, 10350 Torre Avenue and via teleconference location.

ROLL CALL

Present: Mayor Sheila Mohan, Vice Mayor J.R. Fruen, and Councilmembers Liang Chao, Kitty Moore, and Councilmember Hung Wei (participated remotely). Absent: None.

PUBLIC COMMENTS
Written communications for this item included emails to the Council.

Mayor Mohan opened the public comment period for all agenda items and the following members of the public spoke.

State Assemblymember Patrick Ahrens presented a commendation from the California Legislature to Councilmember Wei.

Donna Austin
Parks & Recreation Commissioner Claudio Bono (representing self) Belal Aftab
Ignatius Ding
Babu Srinivasan
Parks & Recreation Commissioner Jennifer Shearin (representing self) Planning Commissioner Muni Madhdhipatla (representing self) Sashi Begur
Peggy Griffin
San R.

Patrick Kwok
Neil Park McClintock
Dr. Clifton Der Bing
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Siva
Erik Poicon
John Tang, representing Cupertino Chamber of Commerce
Planning Commissioner Steven Scharf (representing self) Vinod Balakrishnan
Library Commissioner Qin Pan (representing self)
Housing Commissioner Connie Cunningham (representing self) Venkat Ranganathan
Urs Mader
Housing Commissioner Ryan Golze (representing self)
Naidu Bollineni
Jennifer Griffin
Richard Mellingher
Sue Moore
Rosa Pellecer
Jean Bedord
Stanley Kou
Rosemary Kamei
Richard Poppen, representing Bay Area Municipal Elections Committee (BAYMEC) Michael, representing Bay Area Municipal Elections Committee (BAYMEC) Dave McLeroy
Gilbert Wong
Danessa Techmanski
Tracy K
Rhoda Fry
Bicycle Pedestrian Commissioner Ilango Ganga (representing self) Shani Kleinhaus, representing Santa Clara Valley Bird Alliance Philip Nguyen
Housing Commissioner Angan Das (representing self)
Louise Saadati
Clay Hale
John Ishii
Sujatha Venkatraman, representing West Valley Community Services Mayor Mohan closed the public comment period.

ELECTION RESULTS
Subject:

Statement of results of the General Municipal Election held on November 5, 2024 and declaration of candidates who received the most votes and were elected for the position 46 CC 02-04-2025
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of City of Cupertino Council Member.

Recommended Action: Adopt the Resolution 24‐115 stating the election results for the General Municipal Election held on November 5, 2024 and declaring the candidates who received the most votes and were elected for the position of City of Cupertino Council Member.

City Clerk Kirsten Squarcia reported the election results for the General Municipal Election held on November 5, 2024.

MOTION: Moore moved and Chao seconded to adopt Resolution 24‐115 stating the election results for the General Municipal Election held on November 5, 2024 and declaring the candidates who received the most votes and were elected for the position of City of Cupertino Council Member. The motion carried with the following vote: Ayes:

Mohan, Fruen, Chao, Moore, and Wei. Noes: None. Abstain: None. Absent: None.

RECOGNITION OF OUTGOING COUNCILMEMBERS
Subject:

Recognize outgoing Councilmember Hung Wei
Mayor Mohan recognized outgoing Councilmember Hung Wei.

Councilmembers thanked Councilmember Wei for her years of service on the City Council and Councilmember Wei expressed appreciation and made farewell comments.

Outgoing Councilmember Hung Wei left the meeting.

OATH OF OFFICE OF RECENTLY ELECTED COUNCILMEMBERS
Subject:

Oath of Office of Recently Elected Councilmembers
Newly reelected Councilmember Kitty Moore received the Oath of Office from City Clerk Kirsten Squarcia.

Newly elected Councilmember Ray Wang received the Oath of Office from former Cupertino Councilmember Darcy Paul.

Councilmember Ray Wang was seated at the dais.

ELECTION AND OATH OF MAYOR AND VICE MAYOR
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Subject:
a. Councilmembers elect Mayor
b. Councilmembers elect Vice Mayor
MOTION: Mohan moved and Fruen seconded to appoint J.R. Fruen as Mayor. Fruen made a friendly amendment to appoint Liang Chao as Vice Mayor (Mohan accepted the friendly amendment). Council did not vote on this motion.

Mayor Mohan called for a vote on the motion. Moore objected and Wang seconded the objection to call for a vote on the motion. The objection was sustained with the following vote: Ayes: Chao, Moore, and Wang. Noes: Mohan and Fruen. Abstain: None. Absent:

None.

SUBSTITUTE MOTION: Wang moved and Moore seconded to a substitute motion to nominate Liang Chao as Mayor and Kitty Moore as Vice Mayor. The substitute motion carried with the following vote: Ayes: Mohan, Fruen, Chao, Moore, and Wang. Noes:

None. Abstain: None. Absent: None.
c. Mayor and Vice Mayor Oath of Office
Newly elected Vice Mayor Kitty Moore received the Oath of Office from City Clerk Kirsten Squarcia.

Newly elected Mayor Liang Chao received the Oath of Office from former Cupertino Councilmember Darcy Paul.

Mayor Liang Chao resumed the meeting.

Mayor Chao and Vice Mayor Kitty Moore provided comments.

Mayor Chao presented a gift to former Mayor Sheila Mohan in recognition of her service as Mayor. Councilmember Mohan expressed appreciation and made comments.

ADJOURNMENT
At 8:21 p.m., Mayor Liang Chao adjourned the Special City Council Meeting.

Minutes prepared by:
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_________________________
Kirsten Squarcia, City Clerk
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CITY OF CUPERTINO
Agenda Item
24-13550 Agenda Date: 2/4/2025
Agenda #: 4.

Subject: Approval of January 22, 2025 City Council minutes Approve the January 22, 2025 City Council minutes
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DRAFT MINUTES

CUPERTINO CITY COUNCIL
Wednesday, January 22, 2025

SPECIAL MEETING
At 5:01 p.m., Mayor Liang Chao called the Special City Council Meeting to order in the City Hall Conference Room C, 10300 Torre Avenue.

ROLL CALL

Present: Mayor Liang Chao, Vice Mayor Kitty Moore, and Councilmembers J.R. Fruen and Sheila Mohan. Absent: Councilmember Ray Wang.

CLOSED SESSION
In open session prior to closed session, Mayor Chao opened the public comment period regarding the items on the agenda. No members of the public requested to speak and Mayor Chao closed the public comment period.

1. Subject: Conference with security personnel - critical infrastructure information relating to cybersecurity pursuant to Government Code § 54957(a) Council conducted the conference with security personnel - critical infrastructure information relating to cybersecurity.

At 5:43 p.m., Mayor Chao recessed the Special City Council Meeting.

OPEN SESSION
At 6:45 p.m., Mayor Liang Chao reconvened the Special City Council Meeting and led the Pledge of Allegiance in the Cupertino Community Hall Council Chamber, 10350 Torre Avenue and via teleconference.

ROLL CALL

Present: Mayor Liang Chao, Vice Mayor Kitty Moore, and Councilmembers J.R. Fruen and 51 CC 02-04-2025
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Sheila Mohan. Absent: Councilmember Ray Wang.

CLOSED SESSION REPORT
City Attorney Chris Jensen conducted the closed session report. City Attorney Jensen reported that there was nothing to report.

CEREMONIAL ITEMS

2. Subject: Proclamation to Taiwanese Cultural and Sports Association (TCSA) recognizing the 15th Annual Kids Fun Festival scheduled for 2025 in Cupertino Recommended Action: Present proclamation to Taiwanese Cultural and Sports Association (TCSA) recognizing the 15th Annual Kids Fun Festival scheduled for 2025 in Cupertino
Written communications for this item included a presentation.

TCSA President Hungta Lin gave a presentation and TCSA Founder Anita Hong received the proclamation.

Mayor Chao presented the proclamation to Taiwanese Cultural and Sports Association (TCSA) recognizing the 15th Annual Kids Fun Festival scheduled for 2025 in Cupertino.

3. Subject: Proclamation to Shin Shin Educational Foundation recognizing January 19, 2025 as Shin Shin Educational Foundation Day
Recommended Action: Present proclamation to Shin Shin Educational Foundation recognizing January 19, 2025 as Shin Shin Educational Foundation Day Written communications for this item included a presentation.

Shin Shin Chairperson Steve Ting gave a presentation and Shin Shin volunteer Chin Lin received the proclamation.

Mayor Chao presented the proclamation to Shin Shin Educational Foundation recognizing January 19, 2025 as Shin Shin Educational Foundation Day.

POSTPONEMENTS AND ORDERS OF THE DAY

4. Subject: Budget Study Session for use of one-time funds in the Committed Future Use reserve (November 19, 2024 City Council action)
MOTION: Fruen moved and Moore seconded to reorder the agenda to continue Budget 52 CC 02-04-2025
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Study Session for use of one-time funds in the Committed Future Use reserve to a date uncertain. The motion carried with the following vote: Ayes: Chao, Moore, Fruen, and Mohan. Noes: None. Abstain: None. Absent: Wang.

MOTION: Chao moved and Moore seconded to reorder the agenda to hear agenda Item 12 FY 2025-27 City Work Program Study Session after Public Hearings; and Consent Calendar Items 7 Santa Clara Valley Water District Joint Use agreement, 8 Golden Bay Construction contract, and 9 Advanced Systems Group, LLC. agreement after Item 12; and Item. 11 TBD List after Items Removed from the Consent Calendar. The motion carried with the following vote: Ayes: Chao, Moore, and Mohan. Noes: Fruen. Abstain:

None. Absent: Wang.

ORAL COMMUNICATIONS
Written communications for this item included emails to the Council.

The following members of the public spoke:

Shani Kleinhaus, representing Santa Clara Valley Bird Alliance, discussed the proposed Vista Heights development and environmental impacts.

Mark Fantozzi discussed an Environmental Impact Report (EIR) for the proposed Summerhill Development at Evulich Court.

David Yan ceded time to Mark Fantozzi
Ying Sosic ceded time to Mark Fantozzi
Margaret Tabrizidad ceded time to Mark Fantozzi
Ahmad Yazdi ceded time to Mark Fantozzi
Patrick Sheehy ceded time to Mark Fantozzi
Peggy Griffin discussed document security and accessibility.

Team Active Circle Sneha discussed the Active Circle organization.

San R discussed July 4 and Blackberry Farm event funding, interagency communication and emergency preparedness, and homeless encampments.

Nori discussed solar panel installation at the Quinlan Community Center and Senior Center.

Rhoda Fry discussed various topics including fire-safety, proposed Linda Vista and McClellan developments and environmental impacts, and City budget. 53 CC 02-04-2025
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Brooke Ezzat discussed various topics including fire-safety, City funding, economic development, and the BMR fund.

CONSENT CALENDAR (Items 5-9)
As noted in Postponements and Orders of the Day, Items 7, 8, and 9 were removed from the Consent Calendar by Mayor Chao.

Mayor Chao opened the public comment period and, seeing no one, closed the public comment period.

MOTION: Moore moved and Fruen seconded to approve the items on the Consent Calendar except as indicated. The motion carried with the following vote: Ayes: Chao, Moore, Fruen, and Mohan. Noes: None. Abstain: None. Absent: Wang.

Items 7, 8, and 9 were placed after the Action Calendar for consideration per rule.

5. Subject: Approval of the December 17, 2024 City Council minutes Recommended Action: Approve the December 17, 2024 City Council minutes

6. Subject: Ratifying Accounts Payable for the periods ending December 6, 2024; December 13, 2024; and December 26, 2024
Recommended Action: A. Adopt Resolution No. 25-001 ratifying Accounts Payable for the Period ending December 6, 2024;
B. Adopt Resolution No. 25-002 ratifying Accounts Payable for the Period ending December 13, 2024; and
C. Adopt Resolution No. 25-003 ratifying Accounts Payable for the Period ending December 26, 2024

PUBLIC HEARINGS

10. Subject: Public hearing on the abatement of public nuisance from weeds or other fire hazards pursuant to provisions of Cupertino Municipal Code Chapter 9.08 and Resolution No. 24-111
Recommended Action: Conduct hearing for impacted property owners to contest the matter of proposed abatement and adopt Resolution No. 25-006 ordering abatement of public nuisance from weeds or other fire hazards pursuant to provisions of Cupertino Municipal Code Chapter 9.08 and Resolution No. 24-111
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City Clerk Kirsten Squarcia gave a presentation.

Councilmembers asked questions and made comments.

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

Hament Manasan, APN 375 07 342
David Guy, 10399 South Tantau Avenue
Roger Costa, representing Rancho Deep Cliff HOA
Bobby Pentergrin, representing Rancho Deep Cliff HOA
Alan Yuen, 10605 Johansen Drive
Mike Campbell, 18781 Tuggle Avenue
Mayor Chao closed the public hearing.

Garik Iosilevsky, Weed Abatement Manager with the County of Santa Clara, answered questions.

At 8:16 p.m., Mayor Chao recessed the meeting. The meeting reconvened at 8:30 p.m. with all Councilmembers present (Wang absent).

Mr. Iosilevsky provided a report on the discussions with the contesting property owners during the recess.

MOTION: Chao moved and Moore seconded to adopt Resolution No. 25-006, as amended to remove 10399 South Tantau Avenue and 10605 Johansen Drive from the Program report (Exhibit A), ordering abatement of public nuisance from weeds or other fire hazards pursuant to provisions of Cupertino Municipal Code Chapter 9.08 and Resolution No. 24-111. The motion as amended carried with the following vote: Ayes:

Chao, Moore, Fruen, and Mohan. Noes: None. Abstain: None. Absent: Wang.

STUDY SESSION

12. Subject: FY 2025-27 City Work Program Study Session Recommended Action: 1. Review Councilmembers’ Initial Top 10 projects for the FY 25-27 City Work Program

2. Select date for upcoming Goal Setting Workshop.

3. Receive an overview of the prioritization process for the Goal Setting Workshop that will be presented at this study session.
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Written communications for this item included a staff presentation, a supplemental report with staff responses to councilmember questions, modified January 22, 2025 Staff Report, and Attachment E Community Survey Results Informational Memorandum and Results, and emails to the Council.

Deputy City Manager Tina Kapoor and Senior Management Analyst Astrid Robles gave a presentation.

Councilmembers asked questions and made comments.

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

Roberta Holliman, representing Leadership Group
Tylor Taylor, representing Successful Aging Solutions & Community Consulting (SASCC)
Peggy Griffin
Jean Bedord
Debbie Timmers
Louise Saadati
San R
Tracy K
Planning Commissioner Seema Lindskog (representing self) Mayor Chao closed the public comment period.

MOTION: Chao moved and Mohan seconded to:

1. Provide the following direction on the prioritization process for the Goal Setting Workshop:
 Each councilmember will submit a revised Top 10 projects for the FY 25-27 City Work Program
 Staff will create a combined list from the revised lists  Councilmembers will submit a ranking of 20 projects
 The point system of 10, 7, 4, and 1 will be used, to be scored as follows:
o 5 projects will get a score of 10
o 5 projects will get a score of 7
o 5 projects will get a score of 4
o 5 projects will get a score of 1
o A total of 20 projects will get scored
 Rankings will be submitted before the upcoming Council Goal Setting Workshop
 Staff will determine when councilmembers should submit their revised lists 56 CC 02-04-2025
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and rankings

2. The preferred date for the upcoming Goal Setting Workshop is March 3, beginning at 5 p.m. or 6 p.m., as necessary
The motion carried with the following vote: Ayes: Chao, Moore, Fruen, and Mohan.

Noes: None. Abstain: None. Absent: Wang.

MOTION: Chao moved and Moore seconded to extend the meeting until 11:00 p.m. to consider Items 7 and 9, and then 8. The motion carried with the following vote: Ayes:

Chao, Moore, Fruen, and Mohan. Noes: None. Abstain: None. Absent: Wang.

ITEMS REMOVED FROM THE CONSENT CALENDAR

7. Subject: Authorization to execute a Joint Use Agreement for Continued Public Access to Santa Clara Valley Water District property situated along a portion of Stevens Creek Trail.

Recommended Action: Authorize the City Manager to execute a new Joint Use Agreement with Santa Clara Valley Water District for ongoing access to the District's property situated along a portion of the Stevens Creek Trail.

Written communications for this item included a supplemental report with staff responses to councilmember questions and Attachment B - 1999 Joint Use Agreement, and emails to the Council.

This item was removed from the consent calendar for consideration.

Councilmembers asked questions and made comments.

Mayor Chao opened the public comment period and, seeing no one, closed the public comment period.

MOTION: Chao moved and Fruen seconded to authorize the City Manager to execute a new Joint Use Agreement with Santa Clara Valley Water District for ongoing access to the District's property situated along a portion of the Stevens Creek Trail. The motion carried with the following vote: Ayes: Chao, Moore, Fruen, and Mohan. Noes: None.

Abstain: None. Absent: Wang.

9. Subject: Approve an agreement with Advanced Systems Group, LLC., for Modernization of Broadcast TV and Community Hall Integration for a not-to-exceed amount of $1,100,000, a 10% contingency in the amount of $110,000 for a total not-to-exceed amount of $1,210,000, and associated budget modification, with the cost to be funded by Public, Educational, and Governmental (PEG) funds.

Recommended Action: 1. Authorize the City Manager to execute the agreement and 57 CC 02-04-2025
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any necessary amendments with Advanced Systems Group, LLC., for Modernization of Broadcast TV and Community Hall Integration, within the total not-to-exceed amount of $1,100,000.

2. Adopt Resolution No. 25-005 approving budget modification #2425-368, increasing appropriations in the amount of $1,210,000 in the General Fund Video budget unit (100- 31-305 900-995) funded by restricted PEG Funds
Written communications for this item included a supplemental report and a desk item with staff responses to councilmember questions and Attachment C - RFP - Modernization of TV Broadcast System, and emails to the Council.

This item was removed from the consent calendar for consideration.

Councilmembers asked questions and made comments.

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

Peggy Griffin
Jean Bedord
Josh Young, representing KMVT Community Television
San R
Rhoda Fry
Mayor Chao closed the public comment period.

MOTION: Chao moved and Fruen seconded to:

1. Authorize the City Manager to execute the agreement and any necessary amendments with Advanced Systems Group, LLC., for Modernization of Broadcast TV and Community Hall Integration, within the total not-to-exceed amount of $1,100,000.

The motion carried with the following vote: Ayes: Chao, Moore, Fruen, and Mohan.

Noes: None. Abstain: None. Absent: Wang.

ADJOURNMENT
At 10:56 p.m., Mayor Chao adjourned the Special City Council Meeting per rule. There was no Council discussion on the remaining agenda items.

8. Subject: Award a construction contract to Golden Bay Construction in the amount of 58 CC 02-04-2025
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$1,569,798, approve a first amendment to the design services contract with Pakpour Consulting Group to increase the contract by $96,620 for a total not-to-exceed contract amount of $310,483 and approve a budget modification in the amount of $1,500,000 for the Stevens Creek Boulevard Class IV Bike Lane Project.

Recommended Action: 1. Award a construction contract for the Stevens Creek Boulevard Class IV Bike Lane Phase 2A Project (budget unit 420-99-036, project number 2022-15) in the amount of $1,569,798 to Golden Bay Construction, Inc.;

2. Authorize the City Manager to execute the construction contract with Golden Bay Construction, Inc. when all conditions have been met;

3. Authorize the Director of Public Works to execute any necessary construction change orders up to a construction contingency amount of $156,980 (10%) for a total contract amount of $1,726,778;

Written communications for this item included a supplemental report and a desk item with staff responses to councilmember questions, Attachment C - Contract Documents, and emails to the Council.

This item was removed from the consent calendar for consideration and then continued to the February 4, 2025 City Council meeting per rule.

ACTION CALENDAR

11. Subject: Future agenda items requested by City Councilmembers (“TBD List”).

Recommended Action: 1. Review the TBD list and adopt the staff recommendations for items 5-11

2. Provide direction for items 1-4 and 12-15.

Written communications for this item included a supplemental report with staff responses to councilmember questions.

As noted under Postponements and Orders of the Day, this item was moved after the items that were removed from the consent calendar.
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This item was removed from the consent calendar for consideration and then continued to the February 4, 2025 City Council meeting per rule.

CITY MANAGER REPORT
The Council did not hear this item.

ORAL COMMUNICATIONS - CONTINUED – None

COUNCILMEMBER REPORTS

13. Subject: Councilmember Reports
Councilmembers reported on their various committees and events as provided in the published agenda.

FUTURE AGENDA ITEMS
The Council did not hear this item.

Minutes prepared by:
_________________________
Kirsten Squarcia, City Clerk
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CITY OF CUPERTINO
Agenda Item
25-13650 Agenda Date: 2/4/2025
Agenda #: 5.

Subject: Tyler New World Enterprise Resource Planning (ERP) replacement Adopt Resolution No. 25-007 approving Budget Modification No. 2425-380 increasing appropriations in the amount of $3,744,526 in the General Fund Applications Budget unit (100-32- 308 750-237) for the Tyler New World Enterprise Resource Planning (ERP) replacement CITY OF CUPERTINO Page 1 of 1 Printed on 1/28/2025
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Appropriation Amendment
by Fund
Appropriation
Amendment
Revenue
Amendment
Fund Balance
(Use of)
General Fund (100) 3,744,526 - 3,744,526
Total Appropriation Amendment
All Funds
$3,744,526 $- $3,744,526
Exhibit A
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CITY OF CUPERTINO
Agenda Item
24-13552 Agenda Date: 2/4/2025
Agenda #: 6.

Subject: City Bridge Preventive Maintenance Project grant acceptance and budget adjustment.

1. Adopt Resolution No. 25-008 accepting $1,893,195 in Federal grants from the Federal Highway Administration's Bridge Preventative Maintenance Program for the City Bridge Preventive Maintenance Repairs Project.

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1 CITY COUNCIL STAFF REPORT
Meeting: February 4, 2025
Subject
City Bridge Preventive Maintenance Project grant acceptance and budget adjustment.

Recommended Actions

1. Adopt Resolution No. 25-XXX accepting $1,893,195 in Federal grants from the Federal Highway Administration’s Bridge Preventive Maintenance Program for the City Bridge Preventive Maintenance Repairs Project.

2. Adopt Resolution No. 25-XXX approving budget modification #2425-373 approving an increase of Federal grant revenue estimates of $1,893,195 and an appropriation of $1,176,105 in the Transportation Fund (270-90-960).

Executive Summary
The City of Cupertino was awarded $1,893,195 in grant funding from the Federal Highway Administration (FHWA), which will not be received until after funds are expended by the City. The City must fully fund the Bridge Rehabilitation CIP project to complete construction. Upon completion of work, the City will request reimbursement to offset these expenditures. The budget modification requested will facilitate this passthrough accounting.

Reasons for Recommendation
Background
In 2015, the City Council adopted the Fiscal Year (FY) 2014-2015 Capital Improvement Programs (CIP) Budget which included this Bridge Rehabilitation – Minor Project. This project was initiated to address maintenance work recommendations issued by Caltrans biennial bridge inspection reports and included two bridges along Stevens Creek, one at Homestead Road and one at Stevens Creek Boulevard. The approved project funding was $165,000.

Staff submitted a grant application to Caltrans applying for Federal funding under the FHWA’s Bridge Preventive Maintenance Program (BPMP). Caltrans approved the City’s application and awarded a grant amount up to $571,151 (88.53% of project total), which requires a local match of $73,999 (11.47% of project total), for a project total of $645,150. 69 CC 02-04-2025
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2 For these types of FHWA grants, the City is required to pay a local match equivalent to

11.47% of the project total.

In 2017, Caltrans biennial bridge inspection reports recommended maintenance work to an additional four bridges: McClellan Road at Stevens Creek (which was removed from the project scope), Stevens Creek Boulevard at Calabazas Creek, Miller Avenue at Calabazas Creek, and Tantau Avenue at Calabazas Creek. With the additional bridges added to the project, the project was renamed to “City Bridge Maintenance Repairs” and an additional $535,000 was approved for project funding for a total project budget of $700,000 under the City Council adopted FY 2016-2017 CIP Budget.

In 2022, staff completed the final design of the project with an engineer’s construction estimate of $975,000. Staff submitted a request to Caltrans for additional funding for the project. The additional funding request was approved resulting in a grant total of $1,287,447 (88.53% of project total), with a local match of $166,803 (11.47% of project total), for a project total of $1,454,250.

In 2023, staff advertised the project for bids and received only one bid at $1,884,000. On July 6, 2023, the City Council accepted the recommended action to reject the bid for this project since it significantly exceeded the engineer’s estimate of $975,000. Staff rereviewed the project and revised the project scope to reduce the cost and requested additional funding from Caltrans/FHWA. Caltrans approved the additional funding, resulting in a grant total of $1,382,674 (88.53% of project total), with a local match of $179,141 (11.47% of project total), for a project total of $1,561,815.

The City readvertised this project for bid on May 2, 2024. One bid was received by American Civil Constructors West Coast at $1,647,475. On July 2, 2024, City Council approved the award for this construction contract and approved a budget modification for $300,000 to cover the construction funding deficiency.

June 2024 Bidder[s] Bid Amount
Engineers Estimate $975,000
American Civil Constructors West Coast LLC $1,647,475
Discussion
The City Council approved a total project budget of $1,000,000 with the remaining funding coming from external FHWA grants under the Bridge Preventive Maintenance Program. The FHWA grant requires funding pay-outs to be on a reimbursement basis.

Therefore, the City must incur and pay the project expenditures prior to invoicing Caltrans for FHWA reimbursement. A budget modification increasing the Federal grant revenue estimates to $1,893,195 and appropriating $1,176,105 in the Transportation Fund (270-90-960) is requested to account for the grant funding until reimbursement from Caltrans is received.
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3 In December 2024, staff submitted another request to Caltrans requesting additional grant funds to cover the additional amount of the construction contract above the current FHWA grant funds. Caltrans approved the additional funding, resulting in a grant total of $1,893,195 (88.53% of project total), with a local match of $245,285 (11.47% of project total), for a project total of $2,138,480.

Next Steps
If approved, the City and contractor anticipate completion of the repairs to the listed bridges by July 2025.

If the acceptance of this grant and budget modification is not approved, the City will cancel the incomplete portions of the project and lose the opportunity to utilize the grant funding approved by Caltrans for this project. The recommended repairs that have not been completed to date will remain outstanding and Caltrans may require repairs at a later date.

Sustainability Impact
No sustainability impact.

Fiscal Impact
Approval will increase the Federal grant revenue estimates of $1,893,195 to budget unit 270-90-960 Bridge Preventive Maintenance Project Fund, increasing expenditure appropriations in the budget by $1,176,105 for construction costs, construction management costs, and local match requirement for a total project budget of $2,176,105.

After reimbursements are received, the City funding allocation would be $282,910.

Fiscal Summary
Active Project Since Fiscal Year (FY) 2015
Current Funding Status (Budget) Amount
City Approved Funds FY15 $165,000
City Approved Funds FY17 $535,000
City Approved Funds FY25 $300,000
Subtotal (budget unit 270-90-960): $1,000,000
Projected Funding Impact (Expenditures) Amount
Design Phase Expense (Completed) ($218,900)
Construction Contract ($1,647,475 base contract
and $164,750 contingency) ($1,812,225)
Construction Management ($144,980)
Subtotal: ($2,176,105)
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4 Summary Amount
Current Project Budget (budget unit 270-90-960) $1,000,000 Projected Funding Impact ($2,176,105)
Total Deficiency: ($1,176,105)
Budget Modification Requested: $1,176,105
FHWA Grant (Revenues) Federal Grant Local Match Total Amount FY17 Funding Awarded $571,151 $73,999 $645,150
FY23 Additional Funding
Awarded $716,296 $92,804 $809,100
FY24 Additional Funding
Awarded $95,227 $12,338 $107,565
FY25 Additional Funding
Awarded $510,521 $66,144 $576,665
Total $1,893,195 $245,285 $2,138,480
City Work Program (CWP) Item: No
CWP Item Description: N/A
Council Goal: N/A
California Environmental Quality Act (CEQA)
This project is categorically exempt from CEQA under CEQA Guidelines Section 15301(d) (rehabilitation of deteriorated structures to meet current standards of public health and safety).
_____________________________________
Prepared by: Jason Wong, Senior Civil Engineer
Reviewed by: Chad Mosley, Director of Public Works
Reviewed by: Chris Jensen, City Attorney
Reviewed by: Tina Kapoor, Deputy City Manager
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Draft Resolution Grant Acceptance
B – Draft Resolution Budget Modification
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Attachment A
RESOLUTION NO. __________

A RESOLUTION OF THE CUPERTINO CITY COUNCIL
ACCEPTING $1,893,195 IN FEDERAL FUNDS FROM THE FEDERAL
HIGHWAY ADMINISTRATION’S BRIDGE PREVENTIVE MAINTENANCE

PROGRAM FOR THE CITY BRIDGE MAINTENANCE REPAIRS PROJECT WHEREAS, Caltrans performs biennial bridge inspections and provides work recommendation reports; and
WHEREAS, the City identified a need to address maintenance repairs on several City maintained bridges as recommended by Caltrans; and WHEREAS, the City applied for and was successfully awarded $1,893,195 in federal funds from the Federal Highway Administration’s Bridge Preventive Maintenance Program for the City Bridge Maintenance Repairs Project; NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby accept the $1,893,195 federal grant funding for the City Bridge Maintenance Repairs Project.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 4
th day of February 2025, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Liang Chao, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
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Attachment B
RESOLUTION NO. __________

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

APPROVING A BUDGET MODIFICATION, INCREASE OF GRANT
REVENUE ESTIMATES OF $1,183,195, AND AN APPROPRIATION OF $1,176,105 TO THE BRIDGE PREVENTATIVE MAINTENANCE PROGRAM

PROJECT FUND
WHEREAS, the orderly administration of municipal government depends on a sound fiscal policy of maintaining a proper ratio of expenditures within anticipated revenues and available monies; and
WHEREAS, accomplishing City Council directives, projects, and programs and performing staff duties and responsibilities likewise depends on the monies available for that purpose; and
WHEREAS, the City Manager has determined that the balances from the funds specified in this resolution are adequate to cover the proposed transfer appropriations, and therefore recommends the fund reallocation described herein; and
NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby approve the recommended fund transfer and ratifies the attached amended appropriations as set forth in Exhibit A.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 4
th day of February 2025, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:
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Resolution No. __________

Page 2 ends

SIGNED:
________
Liang Chao, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
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Resolution No. __________

Page 3 ends

EXHIBIT A
Appropriation
Amendment by Fund
Revenue Appropriations Fund Balance
(Use of)
TOTAL $1,893,195 $1,176,105 $0
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CITY OF CUPERTINO
Agenda Item
25-13614 Agenda Date: 2/4/2025
Agenda #: 7.

Subject: Approval of a Final Map and the Subdivision Improvement Agreement for the 6-Unit Domme Enclave Development Project (Tract No. 10608; Applicant AlphaMcClellan, LLC; Location:
20860 McClellan Road; APN: 359-20-030).

Adopt Resolution No. 25-010:
1) Approving the final map consisting of Tract No. 10608. 2) Accepting the street dedication and public easements and abandoning redundant communication easement as shown on the map.
3) Authorizing the City Engineer to execute and record the Subdivision Improvement Agreement.

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CITY COUNCIL STAFF REPORT
Meeting: February 4, 2025
Subject
Approval of a Final Map and the Subdivision Improvement Agreement for the 6-Unit Domme Enclave Development Project (Tract No. 10608; Applicant: AlphaMcClellan, LLC; Location: 20860 McClellan Road; APN: 359-20-030).

Recommended Action
Adopt Resolution No. 25-XXX:
1) Approving the final map consisting of Tract No. 10608. 2) Accepting the street dedication and public easements and abandoning redundant communication easement as shown on the map.
3) Authorizing the City Engineer to execute and record the Subdivision Improvement Agreement.

Reasons for Recommendation
Background
The Domme Enclave Development Project is comprised of one existing parcel that will be subdivided into seven parcels, consisting of one common parcel and six residential parcels. The project would demolish the existing residential building and various onsite structures, construct six separate residential buildings, modify the existing public facilities along the McClellan Road frontage, and widen as well as improve the Cherryland Drive frontage with the installation of private street improvements, including new curb, gutter, sidewalk, and roadway pavers. On October 18, 2022, the City Council adopted Resolution No. 22-130 approving the Two-Story Permits (R-2021- 040 through -045) and Resolution No. 22-129 approving the Tentative Map (TM-2021- 006) for the Domme Enclave Development Project.

In February 2023, subsequent to planning approval, the applicant submitted review of the final map. Concurrently, the applicant submitted permit applications for the project.

The applicant was issued a demolition permit in July 2023, and the demolition work was completed in November 2023. The building permit applications have been approved and are ready to be issued following the recordation of the final map. 78 CC 02-04-2025
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Discussion
Final Map
The proposed final map (Attachment B) includes a public street dedication in fee title and various public easements necessary to accommodate the approved use. The map also abandons a redundant communication easement.

Based on staff’s review, the final map is in substantial compliance with the approved tentative subdivision map and conforms to the requirements of the Subdivision Map Act and the Cupertino Municipal Code (CMC.) Under the Subdivision Map Act and the Cupertino Municipal Code, approval of the final map is a ministerial act, and the City must approve any final map that substantially complies with the approved tentative map. (CMC § 18.16.200(B); Gov. Code, §§ 66458, 66474.1.) Staff recommends that the City Council approve the final map.

Subdivision Improvement Agreement
The applicant has executed a Subdivision Improvement Agreement (SIA) (Attachment C) with the City. The SIA and the associated improvement plans include, as required by the conditions of approval to the Tentative Map:
a. New curb, gutter, attached sidewalk, driveway aprons, and various utility connections, consistent with City standards, along the project’s Cherryland Drive property frontage.
b. New street trees and the replacement of existing driveway aprons with new curb and gutter along the project’s McClellan Road property frontage. c. Modification of a portion of the Class IV bicycle facilities along the project’s McClellan Road property frontage to support the project.

Pursuant to the Cupertino Municipal Code, the SIA requires the applicant to construct these improvements and provide security for their completion. Upon completion, the City will review them for acceptance. The proposed SIA also sets out a schedule for the applicant’s payment of various City fees and bonds. This schedule follows the deadlines set in the Cupertino Municipal Code. Staff therefore recommends that the City Council authorize the City Engineer to execute and record the SIA.

Sustainability Impact
No sustainability impact.

Fiscal Impact
As part of the Tentative Map approval, the project will be generating the following revenue: Parkland Dedication In-Lieu Fees – $525,000 (280-90-001 406-409), Transportation Impact Fees – $33,985 (271-90-001 450-402), Storm Drainage Fees – $7,375 (215-90-001 406-406), and other various cost recovery permitting fees.

California Environmental Quality Act
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Not applicable.
_____________________________________
Prepared by: Jennifer Chu, Senior Civil Engineer
Reviewed by: Chad Mosley, Director of Public Works
Reviewed by: Chris Jensen, City Attorney
Reviewed by: Tina Kapoor, Deputy City Manager
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Draft Resolution
B – Final Map
C – Subdivision Improvement Agreement
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Attachment A
RESOLUTION NO. 25-XXX

A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING THE FINAL MAP – TRACT NO. 10608, ACCEPTING THE

PUBLIC STREET AND PUBLIC EASEMENTS OFFERED FOR DEDICATION,

ABANDONING A REDUNDANT COMMUNICATION EASEMENT, AND

AUTHORIZING THE CITY ENGINEER TO EXECUTE AND RECORD THE

SUBDIVISION IMPROVEMENT AGREEEMENT FOR THE DOMME
ENCLAVE DEVELOPMENT PROJECT LOCATED AT 20860 MCCLELLAN
ROAD (APN: 359-20-030)
WHEREAS, on October 18, 2022, the City Council adopted Resolution No. 22-129 approving a Tentative Map for a seven-lot subdivision (six residential lots and one common lot); and
WHEREAS, the proposed final map conforms to the requirements of the Subdivision Map Act and the Cupertino Municipal Code and is in substantial compliance with the approved Tentative Map; and
WHEREAS, the Domme Enclave Development Project, including the Tentative Map and Final Map, is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15332 of the CEQA Guidelines; and
WHEREAS, a prior communication easement (Book 8999, Page 325) is made redundant by the public roadway dedication in fee title shown on the Final Map; thereby preserving all rights and protections for any public utilities within the area; and
WHEREAS, public roadway dedication and public easements are necessary to accommodate the approved use of the property and have been offered for dedication and granted with the map; and
WHEREAS, the Subdivision Improvement Agreement has been presented to the City Council in a form ready to be executed; and WHEREAS, the Final Map for the property located at 20860 McClellan Road (APN 359-20-030) has been presented to the City Council. 81 CC 02-04-2025
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Resolution No. 25-XXX

Page 2 ends

NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby:

1.) Approve the final map and authorize its recordation,

2.) Accept the public roadway dedication and public easements, and the abandonment of the redundant communication easement as shown on said map, and

3.) Authorize the City Engineer to execute and record the Subdivision Improvement Agreement.

BE IT FURTHER RESOLVED that the City Engineer is authorized to make such non-material changes to the Final Map and Subdivision Improvement Agreement as are necessary to finalize them.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 4
th day of February, 2025, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:

SIGNED:
________
Liang Chao, Mayor
City of Cupertino
________________________
Date
ATTEST:
________
Kirsten Squarcia, City Clerk
________________________
Date
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L:\Projects\Harry\221047-Alok Ventures, LLC, McClennan Road, Cupertino\DWG\221047 FM Sheet01.dwg - 3/29/2024 4:40 PM - Plotted 3/29/2024 4:40 PM by Harinder Singla WE ALSO HEREBY DEDICATE TO THE CITY OF CUPERTINO PUBLIC USE EASEMENTS FOR ANY AND ALL PUBLIC UTILITY FACILITIES INCLUDING POLES, WIRES, CONDUITS, GAS, WATER, HEAT MAINS AND ALL APPURTENANCES TO THE ABOVE, UNDER, UPON, OR OVER THOSE CERTAIN AREAS LYING BETWEEN DASHED LINES EACH DESIGNATED AS "PUE" (PUBLIC UTILITY EASEMENT). THE ABOVE-MENTIONED PUBLIC UTILITY EASEMENTS TO BE KEPT OPEN AND FREE FROM BUILDINGS AND STRUCTURES OF ANY KIND EXCEPT PUBLIC SERVICE STRUCTURES, IRRIGATION SYSTEMS AND APPURTENANCES THERETO, LAWFUL FENCES AND ALL LAWFUL UNSUPPORTED ROOF OVERHANGS. TELLUS APP, INC. ISAOA, BENEFICIARY UNDER THE DEED OF TRUST, RECORDED SEPTEMBER 1, 2023, AS DOCUMENT NUMBER 25525851, OFFICIAL RECORDS OF SANTA CLARA COUNTY, CALIFORNIA, DOES HEREBY CONSENT TO THE MAKING AND FILING OF THIS MAP. AS OWNER (S): A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

SIONAL ENG EER A
IN
A

L I FORN I
I L
D
PROFE
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S
E
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CI No. 66077
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V FILE NO FEE $ PAID. ACCEPTED FOR RECORD AND FILED THIS DAY OF , 20 ____ . AT , M, IN BOOK OF MAPS AT PAGE(S) , SANTA CLARA COUNTY RECORDS, AT THE REQUEST OF FIRST AMERICAN TITLE COMPANY. REGINA ALCOMENDRAS, COUNTY RECORDER SANTA CLARA COUNTY BY: DEPUTY I HEREBY STATE THAT I HAVE EXAMINED THE HEREON SUBDIVISION MAP AND I AM SATISFIED THAT SAID MAP IS TECHNICALLY CORRECT. DAVIS THRESH, PLS 6868 DATE BKF ENGINEERS THIS MAP IS CONSISTENT WITH THE TENTATIVE MAP APPROVED PER THE CITY COUNCIL RESOLUTION NO. 22-129, DATED OCTOBER 18, 2022. THIS SUBDIVISION IS SUBJECT TO ALL CONDITIONS IMPOSED ON IT AS A RESULT OF THE APPROVAL OF TM- 2021-006. BENJAMIN FU DATE COMMUNITY DEVELOPMENT DIRECTOR CITY OF CUPERTINO, CALIFORNIA HARINDER SINGLA, PLS NO. 8347 THIS MAP WAS PREPARED BY ME OR UNDER MY DIRECTION AND IS BASED UPON A FIELD SURVEY IN CONFORMANCE WITH THE REQUIREMENTS OF THE SUBDIVISION MAP ACT AND LOCAL ORDINANCE, AT THE REQUEST OF AlphaMcClellan, LLC on August, 2023; THE SURVEY IS TRUE AND COMPLETE AS SHOWN; I HEREBY STATE THAT ALL THE MONUMENTS ARE OF THE CHARACTER AND OCCUPY THE POSITIONS INDICATED, OR WILL BE SET IN SUCH POSITIONS ON OR BEFORE August 2025, AND THAT SUCH MONUMENTS ARE, OR WILL BE, SUFFICIENT TO ENABLE THE SURVEY TO BE RETRACED. AND THAT THIS FINAL MAP SUBSTANTIALLY CONFORMS TO THE CONDITIONALLY APPROVED TENTATIVE MAP. DATE I HEREBY STATE THAT I HAVE EXAMINED THE HEREIN FINAL MAP OF TRACT NO. 10608; THAT THE SUBDIVISION AS SHOWN HEREON IS SUBSTANTIALLY THE SAME AS IT APPEARED ON THE TENTATIVE MAP, AND ANY APPROVED ALTERATIONS THEREOF, THAT ALL PROVISIONS OF THE SUBDIVISION MAP ACT, AS AMENDED, AND OF ANY LOCAL ORDINANCES APPLICABLE AT THE TIME OF APPROVAL OF THE TENTATIVE MAP, IF REQUIRED, HAVE BEEN COMPLIED WITH. I HEREBY STATE THAT THE CITY COUNCIL OF THE CITY OF CUPERTINO AT A DULY AUTHORIZED MEETING HELD ON THE _______ DAY OF ________________________, 20___, BY RESOLUTION NO.__________________, DULY APPROVED THE HEREIN FINAL MAP AS SHOWN AND ACCEPTED ON BEHALF OF THE PUBLIC THE DEDICATION IN FEE OF ALL STREETS AND PORTIONS THEREOF AND ALL EASEMENTS OFFERED FOR PUBLIC USE AS SHOWN ON SAID MAP WITHIN SAID SUBDIVISION. PACIFIC TELEPHONE AND TELEGRAPH COMPANY EASEMENT FOR UTILITY PURPOSES, RECORDED JULY 24, 1970, IN BOOK 8999 OF OFFICIAL RECORDS, PAGE 325, UNDER RECORDER'S SERIAL NUMBER 3845350, IS DELINEATED HEREON AND ABANDONED PURSUANT TO GOVERNMENT CODE SECTION 66434 (g) OF THE SUBDIVISION MAP ACT.

KIRSTEN SQUARCIA, CITY CLERK DATE CITY OF CUPERTINO, CALIFORNIA A SOILS REPORT AND/OR GEOLOGICAL REPORT ON THIS PROPERTY HAS BEEN PREPARED BY GeoEngineering Consultants, DATED Jan 19, 2021, REPORT NO. P21.0151, A COPY OF WHICH HAS BEEN FILED WITH THE CITY OF CUPERTINO. CHAD MOSLEY, RCE NO. 66077 CITY OF CUPERTINO, CALIFORNIA WE ALSO HEREBY RESERVE FOR THE BENEFIT OF THE OWNERS OF LOTS 1 THROUGH 6, INCLUSIVE, THEIR LICENSEES, VISITORS AND TENANTS, 'LOT 7, PRIVATE INGRESS & EGRESS EASEMENT (PIEE), FOR THE PURPOSES OF PRIVATE ACCESS, A PRIVATE STORM DRAIN EASEMENT (PSDE) AND A PRIVATE SANITARY SEWER EASEMENT (PSSE)' FOR THE PURPOSES OF STORM DRAINS, SANITARY SEWER, DRY UTILITIES, AND ALL OTHER APPURTENANCES THERETO, UNDER, UPON AND OVER SAID LOT. SAID LOT SHALL BE CONVEYED TO THE HOMEOWNERS ASSOCIATION AND USED AND MAINTAINED IN ACCORDANCE WITH THE RECORDED COVENANTS, CONDITIONS AND RESTRICTIONS. ALL OF THE HEREIN DESCRIBED STREETS AND EASEMENTS SHALL BE KEPT FREE OF BUILDINGS, EXCEPT LAWFUL UNSUPPORTED ROOF OVERHANGS, AND OBSTRUCTIONS THAT DO NOT IMPAIR THE USE OF, OR ARE CONSISTENT WITH THE PURPOSES OF THE STREET OR EASEMENT. AlphaMcClellan, LLC, a California Limited Liability Company By: AlphaX RE Capital Inc., a California corporation, Its Manager By: Chun Yi, Authorized Signatory AS BENEFICIARY: Tellus App, Inc., a Delaware corporation By:

Tiancheng Zhu, Authorized Officer DATE Surveyor's Statement City Engineer's Statement City Surveyor's Statement Director of Community Development Statement City Clerk's Statement Recorder's Statement Owner's Acknowledgment Soils and Geological Report Beneficiary's Statement April 2024 Being a Portion of the 10.56 acre tract of land in the Northwest one-quarter of Section 24, Township 7 South, Range 2 West, Mount Diablo Base & Meridian Lying within the City of Cupertino, County of Santa Clara, State of California Tract No. 10608 'Domme Enclave' Y
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C State of California SS. County of _______________________ on _______________________, 20____ before me, _____________________, a Notary Public, personally appeared _______________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I Certify under Penalty of Perjury under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand Notary's Signature ____________________________________________________ Printed Notary's Name _______________________________ Notary's Principal Place of Business ______________________ Notary's Commission Number ___________________________ Expiration of Notary's Commission ________________________ A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. Beneficiary's Acknowledgment State of California SS. County of _______________________ on _______________________, 20____ before me, _____________________, a Notary Public, personally appeared _______________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I Certify under Penalty of Perjury under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand Notary's Signature ____________________________________________ Printed Notary's Name _______________________________ Notary's Principal Place of Business ______________________ Notary's Commission Number ___________________________ Expiration of Notary's Commission ________________________ WE ALSO HEREBY DEDICATE TO PUBLIC USE AN EASEMENT FOR PUBLIC ACCESS PURPOSE ON OR OVER THOSE CERTAIN STRIPS OF LAND, DESIGNATED AND DELINEATED AS "PAE" (PUBLIC ACCESS EASEMENT). WE ALSO HEREBY RESERVE FOR THE BENEFIT OF THE OWNERS OF LOTS 1 THROUGH 6, INCLUSIVE, A LANDSCAPING EASEMENT FOR THE COMMON AREA LANDSCAPING IMPROVEMENTS, DESIGNATED AS "LE" UNDER, UPON OR OVER PORTIONS OF SAID LOTS. SAID LANDSCAPING EASEMENT SHALL BE CONVEYED TO THE HOMEOWNERS ASSOCIATION AND USED AND MAINTAINED IN ACCORDANCE WITH THE RECORDED COVENANTS, CONDITIONS AND RESTRICTIONS. WE ALSO HEREBY RESERVE FOR THE BENEFIT OF THE OWNERS OF ADJOINING WESTERLY PROPERTY, TITLE LISTED UNDER DOCUMENT NO. 2860732, AN EASEMENT FOR THE EMERGENCY RELEASE OF UNCONTROLLED SURFACE DRAINAGE OVER A PORTION OF LOT 6 DESIGNATED AS PRIVATE STORM DRAIN EASEMENT (PSDE). SAID EASEMENT SHALL BE MAINTAINED BY THE OWNERS OF SAID LOT 6.

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S I NGLA WE ALSO HEREBY DEDICATE IN FEE TO THE CITY OF CUPERTINO FOR PUBLIC USE AS RIGHT-OF-WAY THE REAL PROPERTY DELINEATED HEREON AS DESIGNATED "ROADWAY DEDICATION IN FEE", WHICH DEDICATION SHALL BE EFFECTED BY A SEPARATE INSTRUMENT. WE ALSO HEREBY DEDICATE TO PUBLIC USE AN EASEMENT FOR EMERGENCY ACCESS PURPOSES ON OR OVER THOSE CERTAIN STRIPS OF LAND, DESIGNATED AND DELINEATED AS "EAE" (EMERGENCY ACCESS EASEMENT).

WE HEREBY STATE THAT WE ARE THE OWNERS OF, OR HAVE SOME RIGHT, TITLE, OR INTEREST IN AND TO THE REAL PROPERTY INCLUDED WITHIN THE SUBDIVISION SHOWN ON THE MAP; THAT WE ARE THE ONLY PERSONS WHOSE CONSENTS ARE NECESSARY TO PASS A CLEAR TITLE TO SAID REAL PROPERTY; AND THAT WE HEREBY CONSENT TO THE MAKING OF SAID MAP AND SUBDIVISION AS SHOWN WITHIN THE DISTINCTIVE BORDER LINE AND ALL DEDICATIONS AND OFFERS OF DEDICATION THEREIN. Owner's Statement MH engineering Co.

M
H 16075 Vineyard Boulevard (408) 779-7381 Morgan Hill, CA 95037 MH Job No: 221047 Sheet 1 of 3 Attachment B 83 CC 02-04-2025
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Cherryland Drive
McClellan Road
Bonny Drive
25'
R2

10.50'
R2
(NORTH) (M-M 301.76') Held per R2 S0°02'48"E 419.79'
N89°56'35"E 139.35' NORTH 419.74'
N89°55'16"E 139.01'
BDM not Found at Cherryland Dr Held Record Distance M-M 57.47 per R2Fd BDM 0.17' north Held Per Call on R2 M-M 884.93' (885.00' per R2) BDM per R2 SFNF SET BDM Fd BDM per R2 IP per R1 SFNF
(140.00' per R3)
N89°56'35"E 20' PT&T Easement per Doc#3845350 8999 O.R. 325 (North 419.75' per R2,R3) (N89°56'E per R3)
(South per R3) SET BDM Lands of AlphaMcClellan, LLC Doc. No. 25525850 1.341 acre ± 677.61'
(Public right-of-way varies)
(N89°57'E per R3)
(N89°58'02"E per R1)

57.47'
NAIL per R1 SFNF
Basis of Bearings
(N89°56'35"E per R2) 10.50' (Private Street) EAST (M-M 24.00' PER R2) (140' per R3)
IP per R1 SFNF
(S89°55'32"W per R1)
(S00°00'08"E per R1) (419.80' per R3) (419.54' per R1)
(E) 5' LE & PUE PER R2 (E) PUE, EAE, PIEE, PAE, PSDE & PSSE PER R2 McClellan Place Stelling Road Fd Mon Box Per R2 No ID M-M 884.93'
(885.00' per R2) North SCALE: 1"=20' 0
10 20
30 40
Basis of Bearings:

Basis of bearings is along the centerline of McClellan Road between found monuments as N89°56'35"E as shown on that certain Record of Survey Map filed for record in Book 173 of Maps at Page 54, Santa Clara County Records.

L:\Projects\Harry\221047-Alok Ventures, LLC, McClennan Road, Cupertino\DWG\221047 FM Sheet02-Boundary Page.dwg - 3/29/2024 4:45 PM - Plotted 3/29/2024 4:46 PM by Harinder Singla MH engineering Co. M H 16075 Vineyard Boulevard (408) 779-7381 Morgan Hill, CA 95037 MH Job No: 221047 Sheet 2 of 3 Referenced Record Data R1 Record of Survey Book 161 of Maps, Page 44 R2 Parcel Map Book 885 of Maps, Page 6-7 R3 Grant Deed, Doc. #25525850 SET STANDARD CITY MONUMENT, TAGGED PLS 8347
FOUND STANDARD CITY MONUMENT, AS NOTED STREET CENTERLINE DISTINCTIVE BOUNDARY LINE EXISTING LOT LINE EASEMENT LINE LEGEND BRASS DISK MONUMENT DOCUMENT FOUND EXISTING EMERGENCY ACCESS EASEMENT IDENTIFICATION IRON PIPE MAPS MONUMENT TO MONUMENT PUBLIC ACCESS EASEMENT PRIVATE INGRESS & EGRESS EASEMENT PRIVATE STORM DRAINAGE EASEMENT PRIVATE SANITARY SEWER EASEMENT PACIFIC TELEPHONE AND TELEGRAPH COMPANY PUBLIC UTILITY EASEMENT RECORD NUMBER SEARCHED FOR, NOT FOUND OFFICIAL RECORDS RECORD DATA BDM DOC. FD(E) EAE IDIPMM-M PAE PIEE PSDE PSSE PT&T PUE R#SFNF O.R. (...) April 2024 Being a Portion of the 10.56 acre tract of land in the Northwest one-quarter of Section 24, Township 7 South, Range 2 West, Mount Diablo Base & Meridian Lying within the City of Cupertino, County of Santa Clara, State of California Tract No. 10608 'Domme Enclave' 1) 2)3) THE DISTINCTIVE BORDER LINE INDICATES THE BOUNDARY OF THE SUBDIVISION. THE AREA WITHIN THE DISTINCTIVE BOUNDARY IS 1.341 ACRES MORE OR LESS. ALL DISTANCES AND DIMENSIONS ARE IN FEET AND DECIMALS THEREOF. NOTES 4) RECORD INFORMATION SHOWN HEREON IS BASED ON THE PRELIMINARY TITLE REPORT PREPARED BY FIRTS AMERICAN TITLE COMPANY, DATED SEPTEMBER 22, 2023, ORDER NUMBER 3821-7001491.
5) THIS SHEET SHOWS RECORD BOUNDARY AND EASEMENTS. 6) ASSESSOR'S PARCEL NUMBER 359-20-030 SUBJECT TO THE DECLARATION OF EASEMENTS AND MAINTENANCE FOR PRIVATE ROAD RECORDED JUNE 1, 2023, AS DOCUMENT NUMBER 25482243, SANTA CLARA COUNTY RECORDS. SUBJECT TO THE QUITCLAIM DEED AND AUTHORIZATION FOR UNDERGROUND WATER RIGHTS RECORDED AUGUST 24, 2023, AS DOCUMENT NUMBER 25522718, SANTA CLARA COUNTY RECORDS. 7) 8) 84 CC 02-04-2025
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Cherryland Drive (Private Street)
Bonny Drive
25'
R2

10.50'
R2
(NORTH) (M-M 301.76') Held per R2 R = 15.00' Δ = 33°53'09" L = 8.87' R = 15.00' Δ = 90°03'25" L = 23.58' S89°56'35"W 149.85' BDM per R2 SFNF SET BDM Fd BDM per R2 5' PUE & LE (PUE, EAE, PIEE, PAE, PSDE & PSSE) 4' PSDE 8' PSDE SET BDM 5' PUE & LE S90°00'00"E 124.77'
S90°00'00"E 124.72'
S90°00'00"E 124.68'
S90°00'00"E 115.97'
N89°59'57"E 98.16'
N89°56'35"E 139.33'
S89°55'16"W 139.01' 62.15' 76.76' 61.00' 60.40' 60.40' 69.08' Lot 1 8,581 SF ± Lot 2 7,535 SF ± Lot 3 7,532 SF ± Lot 4 7,526 SF ± Lot 5 8,469 SF ± Lot 6 9,615 SF ± 109.82' 29.51'40.64' 60.40' 60.40' 54.19' Lot 7 Common Area 4,987 SF ± S0°00'00"W 215.63' 307.23' R = 56.00' Δ = 13°48'13" L = 13.49' R = 56.00' Δ = 24°36'35" L = 24.05' R = 37.00' Δ = 21°19'00" L = 13.77' R = 37.00' Δ = 47°40'10" L = 30.78' C1 C2 NORTH 419.74' 139.35' 10.50'

57.47' 82.51' N16°29'10"E(r)
r4
r3
r2
r1
McClellan Road
(Public right-of-way varies)
(EAST)
(M-M 24.00')
per R2
(E) PUE, EAE, PIEE,
PAE, PSDE & PSSE PER R2 (E) 5'LE & PUE PER R2
Roadway Dedication
In Fee
4,180 SF ± 30.00' 30.00' S0°02'48"E 419.79' Fd BDM 0.17' north Held Per Call on R2 BDM not Found at Cherryland Dr Held Record Distance M-M 57.47 per R2 N24°24'24"E 43.81' (DOC No.__________O.R.) Curve Table #C1 C2 Radius 37.00' 56.00' Delta 068°59'11" 038°24'48" Length 44.55' 37.54' Radial Bearing Table #r1r2r3r4 Direction N56°06'51"W S69°55'04"E N85°28'21"E S64°09'21"W 068°59'10" S64°09'20"W North SCALE: 1"=20' 0 10 20
30 40
L:\Projects\Harry\221047-Alok Ventures, LLC, McClennan Road, Cupertino\DWG\221047 FM Sheet03.dwg - 3/29/2024 4:46 PM - Plotted 3/29/2024 4:46 PM by Harinder Singla MH Job No: 221047 Sheet 3 of 3 SET STANDARD CITY MONUMENT, TAGGED PLS 8347 FOUND STANDARD CITY MONUMENT, AS NOTED SET 3/4" IRON PIPE, TAGGED PLS 8347 STREET CENTERLINE DISTINCTIVE BOUNDARY LINE NEW LOT LINE EXISTING LOT LINE EASEMENT LINE LEGEND BRASS DISK MONUMENT DOCUMENT FOUND EXISTING EMERGENCY ACCESS EASEMENT LANDSCAPE EASEMENT PUBLIC ACCESS EASEMENT PRIVATE INGRESS & EGRESS EASEMENT PRIVATE STORM DRAINAGE EASEMENT PRIVATE SANITARY SEWER EASEMENT PUBLIC UTILITY EASEMENT RADIAL NUMBER RECORD NUMBER RADIAL BEARING SEARCHED FOR, NOT FOUND OFFICIAL RECORDS RECORD DATA BDM DOC. FD(E) EAE LEPAE PIEE PSDE PSSE PUE r#R# (r) SFNF O.R. (...) Basis of Bearings: Basis of bearings is along the centerline of McClellan Road between found monuments as N89°56'35"E as shown on that certain Record of Survey Map filed for record in Book 173 of Maps at Page 54, Santa Clara County Records. MH engineering Co. M H 16075 Vineyard Boulevard (408) 779-7381 Morgan Hill, CA 95037 Referenced Record Data R1 Record of Survey Book 161 of Maps, Page 44 R2 Parcel Map Book 885 of Maps, Page 6-7 R3 Grant Deed, Doc. #25525850 April 2024 Being a Portion of the 10.56 acre tract of land in the Northwest one-quarter of Section 24, Township 7 South, Range 2 West, Mount Diablo Base & Meridian Lying within the City of Cupertino, County of Santa Clara, State of California Tract No. 10608 'Domme Enclave' 85 CC 02-04-2025
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City of Cupertino

SUBDIVISION IMPROVEMENT AGREEMENT
20860 McClellan Road, Cupertino, CA 95014
APN: 359-20-030
This agreement ("Agreement") is made and entered into this _2- 2-- day of JaY)UO!'J1,, . , , -7/J... h Ct OF CUPERTINO a municipal corporation of the State of Cahforn1a, ( City'), 2U'.::.J, by and between t e I Y . . . '. . . ("S bd' ·d r") for a seven-lot residential and AlphaMcClellan LLC, a California limited hab11lty company u 1v1 e , subdivision located at 20860 McClellan Road, Cupertino, CA (APN 359-20-030).

RECITALS

1. Pursuant to the Subdivision Map Act of the State of California and the City's local ordinances and regulations relating to subdivision maps, Subdivider has presented to the City for ap~roval a_ final subdivision map, Tract No. 10608 (the " Map") for the subdivision of certain real property in the City of Cupertino, designated as Final Map for a seven-lot residential subdivision at 20860 McClellan Road (the "Subdivision").

2. Subdivider has prepared and City has approved the following plans and related specifications (the "Improvement Plans") for construction, installation and completion of certain public improvements in connection with the Subdivision (the "Improvements). The Improvement Plans are on file in the City's Department of Public Works and are incorporated into this Agreement by this reference.

3. Subdivider, has also offered for dedication to City certain streets, ways and easements delineated on the Map (the "Dedications").

4. On ------ - ~ 20__, the City Council approved the Map and offers of dedication shown on the Map, conditioned on Subdivider entering into this Agreement to construct and complete the Improvements.

NOW, THEREFORE, in consideration of City's approval of the Map, and in order to insure satisfactory performance by Subdivider of its obligations under the Subdivision Map Act and the Cupertino Municipal Code, City and Subdivider agree as follows:

1. SUBDIVIDER'S OBLIGATION TO CONSTRUCT IMPROVEMENTS
a. Completion of Improvements. Subdivider, at its own expense, and in compliance with all provisions of the Subdivision Map Act, the Cupertino Municipal Code, the Map and any amendments thereto, and other applicable laws, shall perform the furnishing, installation, and construction of all required Improvements in conformance with the Improvement Plans ("the Work"). The decision of the City Engineer shall be final as to whether any material or workmanship meets the applicable plans, specifications, and standards as set forth herein and in the Improvement Plans. b. Compliance with applicable laws and rules. Subdivider shall construct the Improvements in accordance with the most current applicable standards and specifications of the Department of Public Works, the State of California including without limitation the California Department of Transportation Page L of 14
Attachment C
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(collectively the "State Specifications"), and in accordance with the specifications of the Cupertino Sanitary District where applicable. Wherever the words "State" or "California Division of Highways" are mentioned in the State Specifications, it shall be considered as referring to the City of Cupertino; also wherever the "Director" or "Director of Public Works" is mentioned, it shall be considered as referring to the City Engineer. In case of conflict between the State Specifications and the specifications of the City, and/or the Cupertino Sanitary District, the specifications of the City and/or the Cupertino Sanitary District shall take precedence over and be used in lieu of such conflicting portions. c. Repair and replacement of damaged public facilities. Subdivider shall, at its own expense, repair or replace all public improvements, public utility facilities, surveying monuments and other public facilities that are destroyed or damaged as a result of the Work. Subdivider shall promptly notify the City Engineer of such damage and shall obtain the City Engineer's approval of all repair and replacement of damaged facilities.
d. Subdivider's responsibility until City's acceptance. Until City accepts the Improvements, Subdivider shall be responsible for the care and maintenance of such Improvements and shall bear all risks of loss or damage to the Improvements. City shall not have any liability for any accident, loss or damage to the Improvements prior to their completion and acceptance by City. City's acceptance of the Improvements shall not constitute a waiver of any defects in the Improvements or Subdivider's obligation to repair such defects as provided in Section 8 of this Agreement.
e. Time for installation .of Improvements. Subdivider shall install and complete the Improvements within one (1) year from the date of execution of this Agreement, or such longer period as may be specifically authorized in writing by the City Engineer pursuant to section l(f) of this Agreement. In the event the Subdivider fails ·or refuses to complete the Work within the specified period of time, the City is hereby authorized:to complete the Work in whatever manner the City shall decide. In the event the City completes the Work, the City may recover all costs incurred thereby from the Subdivider or, pursuant to bonds posted as set out in Section 5 below, the Subdivider's surety, or both. No final inspection shall be granted or street improveme·nts shall not be accepted unless all the requirements for safety purposes are installed, such as sidewalks, handicap ramps, street lights, etc. f. Time extensions. The City Engineer, in his or her sole discretion, may approve, in writing, a request for extension of the time require'd for the Work upon a showing of good cause by the Subdivider. Good cause may include, without limitation, delay resulting from an act of the City, acts of God, strikes, boycotts, or similar job actions which prevent the conduct of the Work. In approving a request for time extension, the City Engineer may impose reasonable related conditions, such as requiring Subdivider to furnish new or modified improvement security guaranteeing performance of this Agreement, as extended, in an increased amount necessary to compensate for any projected increase in the estimated total cost of Improvements, as determined by the City Engineer.
g. Permits. Subdivider shall, at its own expense, obtain, and comply with the conditions of all necessary permits and licenses for the construction of the Improvements and give all necessary notices and pay all fees and taxes required by law.

2. ACQUISITION AND DEDICATION OF EASEMENTS OR RIGHTS OF WAY a. Subdivider offers to dedicate the real property shown on Tract No. 10608 as filed for record with the County of Santa Clara, which is made a part hereof by reference (the "Dedicated Property"). Upon the

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condition precedent that the Subdivider shall perform each and every covenant and condition of this Agreement, the City agrees to accept said real property offered for dedication.

The Dedicated Property shall be free and clear of all liens or encumbrances except those which the City agrees to waive in writing. Subdivider agrees not to revoke this offer of dedication, and to keep said offer open until the City accepts offer, Upon execution of this Agreement, Subdivider agrees to deliver a properly executed grant deed to the City of the real property described in Tract No. 10608, and such other executed conveyances, or instruments necessary to convey clear title as herein required. The Subdivider shall provide, at.the Subdivider's sole cost and expense, to the City at the time of acceptance of dedication and recordation of deed, (1) a· preliminary title report issued by a title insurance company relating to the property offered for dedication, and (2) a standard policy of title insurance issued by a title insurance company and insuring the · City, showing that the Dedicated Property is free and clear of all liens or encumbrances except any that the City expressly agreed to waive. b. Subdivider shall acquire any easement and right-of-way necessary for completion of the Project at its own cost and expense. However, that in the event eminent domain proceedings are required, the City for the purpose of securing said easement and right-of-way, Subdivider shall deposit with City, a sum covering (i) the reasonable market value of the interest proposed to be taken and (ii) a reasonable allowance for severance damages, if any, and (iii) estimated legal fees and costs, engineering, and other incidental costs in such reasonable amounts as the City may require.

3. INSPECTION AND FINAL ACCEPTANCE
a. Subdivider shall at all times maintain proper facilities and safe access for inspection of the Improvements by the City Engineer .
. b. Upon completion of' the Improvements in compliance with the Improvement Plans and all, applicable standards, the City Engineer or, for facilities to be accepted by the Cupertino Sanitary District, the District Engineer, shall perform a final inspection to determine the completeness of the Improvements. • If the City and/or District· Engineer determines the Improvements are complete and meet all applicable standards and specifications, he or she shall· issue a Notice of Completion pursuant to Cupertino City Code section 18.32.400.
c. Subdivider shall bear all costs of inspection and certification for acceptance. Acceptance by the City Engineer and/or District Engineer shall not constitute a waiver by the City and/or Cupertino Sanitary District of any defects in the Improvements.

4. GROUNDWATER RIGHTS
Subdivider, when requested by the City, shall quitclaim all his/her rights and interests in, and shall grant to City authorization to extract water from the underground strata lying beneath said project. Subdivider agrees to execute a "Quitclaim Deed and Authorization" regarding such rights, in favor of City upon such request.

S. SECURITY
a. Required Security. Prior to execution of this Agreement, Subdivider shall provide the following security to City in one of the forms set out in Section S.b below.

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(1) Faithful performance. Security for faithful performance of this Agreement in the amount set forth in Part A of Exhibit A.
(2) Labor and Materials. Security for labor and materials in the amount set forth in Part B of Exhibit A.
b. Form of Security. Subdivider shall provide as security, bonds executed by a surety company authorized to transact a surety business in.the State of California and approved by the City as to sufficiency.

In the event that the Subdivider shall fail to faithfully perform the covenants and conditions of this Agreement, or to make any payment, or any dedication of land, or any improvements herein required, the City shall call on the surety,to perform this Agreement or otherwise indemnify the City for the Subdivider's failure to do so.

In lieu of a surety bond, the Subdivider may, with the City's consent, which the City may grant or withhold in its·sole and absolute discretion, elect to secure its performance of this Agreement by depositing with the City (1) Cash; (2) A cashier's check, or a,certified check payable to the order of the City of Cupertino; or (3) A certificate of deposit, or instrument of credit acceptable to the City and meeting the requirements of Government Code Section 66499 (a) or. (b). The amount of said cash, checks, certificate of deposit, or instrument of credit shall be as Subdi\lider set forth in Parts A and/or B of Exhibit A. In the event that the Subdivider shall fail to faithfully perform the covenants and conditions of this Agreement, or to make any payment, or any dedication of land, or any improvements herein required, the City may apply the proceeds of said security thereto.
c. Release of Security. Security shall be released as follows:
(1) Upon the Director's issuance of a Notice of Completion for the Infrastructure in accordance with Section 3{b), 90 percent of the faithful performance security shall be released. The Security remaining following such release is referred to herein as the "Remaining Security.". (2) Release of the remaining 10 percent of the faithful performance security at one year from acceptance, or if the City issues a written notice or notices of defect pursuant to Section 8, one year after all such defects have been corrected, provided that prior to the release of the remaining amount the Director of Public Works shall have certified that no claims regarding the workmanship or quality ·of the Infrastructure have been filed against the City, all such claims have been satisfied, withdrawn, or otherwise secured by bond or other security approved by the City Engineer.
(3) Release of the entire labor and material security at six months from acceptance, or if the City issues a written notice or notices of defect pursuant to Section 8, six months after all such defects have been corrected, provided that prior to the release of the security, the Director of Public Works shall have certified that no claims by any contractor, subcontractor or person furnishing labor, materials or equipment for the Infrastructure has been flied against the City.

In the event that claims have been filed, the land and materials security may be reduced to an amount equal to the total amount claimed by all claimants for whom liens have been filed and of which notice has been given to the City, plus an amount reasonably determined by the City Engineer to be required to assure the performance of any other obligations secured by the security. The balance of the security shall be released upon settlement or release of all claims and obligations for which the security was given.

6. PAYMENT OF REQUIRED FEES

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a. Permits and licenses. Subdivider shall, at its sole expense, obtain all necessary permits and licenses for the construction and installation of the Improvements, give all necessary notices, and pay all fees required by City ordinance, including but not limited to the fees described in this Agreement, and all taxes required by law.
b. Fees. The Parties acknowledge that as a precondition to the execution of this Agreement, Subdivider has paid fees in the amounts set forth in Exhibit A, including but not limited to the following:
(1) Inspection Fees. Subdivider shall pay all necessary direct expenses for inspection, checking, etc. incurred by City in connection with said Project, and that Subdivider shall have deposited sufficient funds with City, prior to execution of this Agreement. Should construction costs vary materially from the estimate from which this sum is calculated, the City Engineer shall notify Subdivider of any additional sum due and owing as a result thereof. (2) Storm Drainage Fee. Subdivider shall deposit with the City, prior to execution of this Agreement, a storm drainage charge in connection with the said Project in accordance with the requirements established in Resolution 4422, March 21, 1977. (3) Map Checking Fee. Subdi\lider shall deposit with City, prior to execution of this Agreement, for office checking of final map and field checking of street monuments, in compliance with Section 4:1 of Ordinance No. 47 (Revised 12/04/61) of City.
(4) Park Fee. Subdivider shall pay such fees and/or dedicate such land to the City, prior to execution of this Agreement, as is required within Section 18.24.030, Park Land Dedication, Cupertino Municipal Code. Park fees are calculated in accordance with action originally adopted by the City Council on March 19, 1991 and Chapter 14.05 or Section 18.24.030 of the Cupertino Municipal Code and as subsequently amended.
(5) Transportation Impact Fee. Subdivider shall pay such fees, prior to execution of this Agreement, as-is required under Chapter 14.02 of the Cupertino Municipal Code. (6) Reimbursement Fee. Subdivider shall deposit with the City, prior to execution of this Agreement, a reimbursement fee for any street improvements that have been installed by the City, or by another property owner. Subdivider shall pay the City for the cost of the land at the cost • to the City, or another property owner, and shall pay a street improvement reimbursement charge for the improvements which the City or another property owner, installed on the street abutting or included in the benefited property, in an amount equal to the total improvement costs for each particular benefited property as set forth in a reimbursement agreement. Payments for both land and improvements shall include simple interest in the amount of seven percent per year, to be calculated in the following manner:
(i) Land Cost. Interest to accrue from the date the street improvements are accepted by the City to t he date the street improvements reimbursement charge is paid, or if the land is 'purchased by the City for a City project, from the date of purchase to the date the charge is paid.
{ii) Improvement Cost. Interest to accrue from the date the street improvements are accepted by the City to the date the street improvement reimbursement charge is paid, or if installed by the City, from the date installation commenced to the date the charge is paid. (iii) Provided, however, that the interest shall be waived if the adjoining property owner dedicates or has dedicated to the City land necessary for the street improvements, or where no such dedication is necessary.

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7. STREET TREE INSTALLATION
Subdivider shall provide funds in the amount specified in Part F of Exhibit A, to the City for purchase and planting of street trees as deemed appropriate by the City Engineer; or shall, at the discretion and at such time as deemed appropriate by the City Engineer, plant street trees in conformance with the standards of the City of Cupertino. The variety, number and location of trees are subject to City's prior approval.

8. MAINTENANCE AND WARRANTY
a. Warranty Period. Subdivider guarantees and warrants the Improvements and agrees to remedy any defects, damages, or imperfections in the Improvements arising from faulty or defective materials or construction of the Improvements for a period of one (1) year after City's acceptance of the Improvements.

Subdivider's obligation under this section shall include the repair, replacement, or reconstruction of all irrigation systems and all trees, shrubs, ground cover and landscaping for the required one-year period. b. Warranty repairs and replacements. If, within the warranty period, the Improvements or any part of the -Improvements fail to fulfill any of the requirements of t his Agreement or the Improvement Plans, Subdivider shall repair, replace or reconstruct any defective or otherwise unsatisfactory parts of the Improvements without delay and at no cost to City. If (a) Subdivider fails to commence repairs within thirty (30) days of the date of mailed written notice from City, or (b) City determines that public safety requires repair before Subdivider can be notified, City may, at its sole option, perform the required repair itself.

Subdivider agrees to pay the cost of any repairs City performs pursuant to this agreement and City may, at its sole option, recover that cost through the security provide under this Agreement and, as to any deficiency after the application of the security, as a lien against Subdivider's property within the Subdivision.

9. SANITARY DISTRICT
Subdivider shall file with the City, upon.execution of this Agreement, a letter from the Cupertino Sanitary District stating that the Subdivider has submitted plans for review by the District and that sanitary sewers are available to serve all lots within the Project.

10. GOVERNMENT COSTS
Subdivider shall file with the City, upon execution of this Agreement, substantial evidence that all provisions of Section 66493, Article 8, Chapter 4 of the Government Code, pertaining to special assessments or bonds, have been complied with.

11. UTILITIES
Subdivider shall pay to Pacific Gas and Electric Company, AT&T, and/or appropriate utility companies, all fees required for installation of overhead and/or underground wiring circuits to all electroliers within said property and all fees required for undergrounding as provided in Ordinance No. 331 or subsequently adopted ordinances of City or regulations of the appropriate utilities when the Subdivider is notified by either the City Engineer, Pacific Gas and Electric Company, AT&T, or appropriate utility companies that said fees are due and payable.

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12. HOLD HARMLESS AND INDEMNIFICATION
a. To the fullest extent allowed by law, Subdivider shall indemnify and hold harmless City, its City Council, boards and commissions, officers, officials, agents, employees, servants, consultants and volunteers (hereinafter, "lndemnitees") from and against any liability, loss, damage, expense, and cost (including reasonable legal fees and costs ·of litigation or arbitration), resulting from injury to or death of any person, damage to property, or liability for other claims, stop notices, demands, causes of actions and actions, arising out of or in any way related to Subdivider's performance or nonperformance of his/her duties under this Agreement, or from negligent acts or omissions or willful misconduct of Subdivider, its agents, employees, contractors, or subcontractors. Subdivider shall, at his/her own cost and expense, defend any and all claims, actions, suits or legal proceedings that may be brought against the City or any of the lndemnitees (with council acceptable to City) in connection with this Agreement or arising out of Subdivider's performance or nonperformance of his/her duties and obligations hereunder, including all claims, demands, causes of action, liability or loss because of or arising out of, in whole or in part, the design and construction of the improvements.

This indemnification and agreement to hold harmless shall extend to injuries to persons and damages or taking of property resulting from the design or construction of the Subdivision, and the public improvements described in this Agreement, and in addition, to adjacent property owners as a consequence of the diversion of waters from t he design or construction of public drainage systems, streets and other public improvements, except to the extent any of the foregoing is caused by the negligence or willful misconduct of the City or the City's agents, employees and independent contractors.
b. Acceptance by City of the Improvements shall not constitute an assumption by City of any responsibility for any damage covered by this section. City shall not be responsible for the design or construction of the Subdivision or,the~improvements pursuant to the approved Improvement Plans or map, regardless of any negligent actioi;, or inaction taken by the City in approving the plans or map, unless the particular improvement design was specifically required by City over written objection by Subdivider, indicating that the particular improvement design was dangerous or defective and suggested an alternative safe and feasible design, submitted to the City Engineer before approval of the particular improvement design.
c. After City's acceptance of the Improvements, Subdivider shall remain obligated to correct or eliminate any defect in design or dangerous condition created by defects in design or construction, provided however, that Subdivider shall not be responsible for routine maintenance. Provisions of this section shall remain in full force and effect for ten (10) years following City's acceptance of the Improvements. Subdivider acknowledges and agrees that Subdivider shall be responsible and liable for the design and construction of the Improvements and other work done pursuant to this Agreement and that City shall not be liable for any acts or omissions in approving, reviewing, checking, correcting, or modifying any Improvement Plans or related specifications or in approving, reviewing or inspecting any work or construction. The improvement security shall not be required to cover the provisions of this paragraph beyond the guarantee and warranty period specified in this agreement.

13. INSURANCE

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Prior to commencing any of the Work, Subdivider shall procure and maintain for the duration of the Work, plus an additional year from the date of acceptance for the Commercial General Liability coverage specified below, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Subdivider, its contractor, agents, representatives, employees or subcontractors.

Coverage shall be at least as broad as:

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 Subdivider's Contractors acts or omissions, including Contractor's protected coverage, blanket cont ractual, products and completed operations, vehicle coverage and employer's non-ownership liability coverage, with limits of at least $2,000,000 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 twice the required occurrence limit. a. Any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (1) the minimum coverage/limits specified in this agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Subdivider's policy shall be "primary and noncontributory" and shall be at least as broad as ISO CG 20 0104 13. c. 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 covering owned, hired, and non-owned autos, with limit no less than $1,000,000 per accident for bodily injury and property damage.

3. Workers' Compensation: As required by the State of California, with Statutory Limits, and Employer's Liability Insurance of no less than $1,000,000 per accident for bodily injury or disease.

If Subdivider maintains broader coverage and/or higher insurance limits, City will be entitled to Subdivider's broader coverage and/or higher limit s.

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. Endorsement of CGL coverage shall be at least as broad as ISO Form CG 20 10 1185 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.

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For any claims related to this Agreement or the Work, Subdivider's insurance shall 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 shall not seek contribution from City's insurance. If the limits of insurance are satisfied in part by Umbrella/Excess Insurance, the Umbrella/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.

Each insurance policy must provide that coverage will not be canceled, except with 30 days' notice to 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.

Each required policy must include an endorsement providing that the carrier agrees to waive any right of subrogation it may have against City. Further, Subdivider agrees to waive any rights of subrogation which any of Subdivider's insurers may acquire from Subdivider by virtue of payment of any loss. Subdivider agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers' Compensation policy must be endorsed with a waiver of subrogation in favor of the City for all work performed by Subdivider or Subdivide r's Contractor, its employees, agents and subcontractors.
losurance must be issued by insurers licensed in the State of California and with an A.M. Best's financial strength rating of "A VII" or better.

14. ASSIGNMENT
Subdivider shall not assign this agreement without the prior written consent of the City. Any attempted or purported assignment in violation of this paragraph shall be null and void and have no force or effect. The sale or other disposition of the Project shall not relieve Subdivider of its obligations under this agreement. If Subdivider intends to sell the Project or any portion of the Project to any other person or entity, Subdivider may request a novation of this Agreement and substitution of improvement security.

15. COVENANT RUNNING WITH THE LAND
This Agreement shall inure to the benefit of, and be binding upon the heirs, administrators, successors, assigns and transferees of the Parties, and shall be recorded in the Office of the County Recorder and constitute a covenant running with the land, to which recording the Parties each hereby consent. Upon any sale or division of the Property, the terms, covenants, conditions and restrictions of this agreement shall apply to each parcel, and the owner or owners of each parcel shall succeed to the obligations imposed upon Subdivider by this Agreement.

16. DEFAULT, BREACH, AND REMEDIES TO CITY

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a. Default. Default of Subdivider shall include, but not be limited to:
(1) Subdivider's failure to timely commence construction of Public Improvements under this Agreement;
(2) Subdivider's failure to timely complete construction of the Improvements; (3) Subdivider's failure to timely cure any defect in the Improvements; (4) Subdivider's failure to perform substantial construction work for a period of 20 consecutive calendar days after commencement of the work; (5) Subdivider's insolvency, appointment of a receiver, or the filing of any petition in bankruptcy, either voluntary or involuntary, which Subdivider fails to discharge within 30 days;
(6) The commencement of a foreclosure action against the Subdivision or a portion thereof, or any conveyance in lieu or in avoidance of foreclosure; (7) Subdivider's failure to maintain any insurance policy required under this Agreement; or (8) Subdivider's failure to perform any other obligation under this Agreement. b. The City reserves all remedies available to it at law or in equity for breach of Subdivider's obligations under this Agreement. The City shall have the right, subject to this section, to draw upon or use the appropriate security to mitigate the City's damages in the event of default by Subdivider. The City's right to draw upon or use the security is in addition to any other remedy available to the City. The parties acknowledge that the estimated costs and security amounts may not reflect the actual cost of construction of the improvements and, therefore, the City's damages for Subdivider's default shall be measured by the cost of completing the required improvements. The City may use the sums provided by the security for completion of the Improvements in accordance with the Improvement Plans. c. In the event that the Subdivider fails to cure any default under this Agreement within twenty (20) days after the City mails written notice of such default to Subdivider and Subdivider's surety, Subdivider authorizes the City to perform the obligations for which Subdivider is in default and agrees to pay the entire cost of such performance by the City.
d. The City may take over the Work and complete the Improvements by contract or by any other method the City deems appropriate, at the expense of Subdivider, and Subdivider's surety shall be liable to the City for any excess cost or damages to the City resulting therefrom. In such event, the City, without liability for so doing, .may take possession of and use any of Subdivider's materials, appliances, plant and other property that are at the work site and are necessary to complete the Improvements. e. Subdivider hereby grants the City an easement over all lands Subdivider owns within the Subdivision, for the purposes of all access, egress, and occupation required to complete the Work in the event that the City exercises its right under this Agreement to do so. Such easement shall terminate without any further action of wither Party upon the completion of all of Subdivider's obligations under this Agreement, including for avoidance of doubt, obligations under Section 12.c. f. Subdivider's failure to comply with the terms of this Agreement constitutes Subdivider's consent -for the City to file a notice of violation against all lots in the Subdivision or to rescind or otherwise revert the Subdivision to acreage. Subdivider specifically recognizes that the determination of whether a reversion to acreage or recission of the Subdivision approval constitutes an adequate remedy for Subdivider's default shall be within the City's sole and absolute discretion. The remedy provided by this Subsection is in addition to all other remedies available to the City, and Subdivider agrees that the choice of remedy or remedies for Subdivide r's breach shall be within the City's sole and absolute discretion.

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g. In the event that Subdivider fails to perform any obligation under this Agreement, Subdivider agrees to pay all costs and expenses incurred by City in securing performance of those obligations, including but not limited to fees and charges of architects, engineers, attorneys and other professionals, and costs of suit and reasonable attorneys' fees.
h. City's failure to take enforcement action with respect to a default, or to declare a breach, shall not be construed as a waiver of that default or breach or any subsequent default or breach by Subdivider.

17. SUBDIVIDER NOT AGENT OF CITY
Neither Subdivider nor any of Subdivider's agents or contractors are or shall be considered to be agents of City in connection with the performance of Subdivider's obligations under this Agreement.

18. SUBDIVIDER TO WARN PUBLIC
Until final acceptance of the improvements, Subdivider shall give good and adequate warning to the public of any dangerous condition of the Improvements, and shall take reasonable actions to protect the public from such dangerous condition.

19. NOTICES
All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served .when delivered personally or on the second business day after the deposit thereof in the United States Mail, postage prepaid, registered or certified, addressed as hereinafter provided.

All notices, demands, requests, or approvals from Subdivider to City shall be addressed to City at:

City of Cupertino
10300 Torre Ave.

Cupertino, CA 95014
Attention: Public Works Director/City Engineer
All notices, demands, requests, or approvals from City to Subdivider shall be addressed to Subdivider at:

AlphaMcClellan LLC
97 Boston Avenue
San Jose, CA 95128
Attention: Chun Yi

20. NO VESTING OF RIGHTS
Performance by Subdivider of this Agreement shall not be construed to vest Subdivider's rights with respect to any change in any zoning or building law or ordinance.

21. TIME IS OF THE ESSENCE
Time Is of the essence in the performance of this agreement by subdivider.

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22. NONDISCRIMINATION
Subdivider, its agents, employees, contractors and subcontractors shall not discriminate in any way against any person on the basis of age, sex, race, color, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity, or national origin in connection with or related to the performance of this Agreement.

23. GOVERNING LAW AND ATTORNEY FEES
This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rules which may direct the application of laws of another jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of t hose authorities). Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Santa Clara, State of California.

If City sues to compel Subdlvider's performance of this Agreement, or to recover damages or costs incurred in completing or maintaining the work on the Improvements, Subdivider agrees to pay all attorneys' fees and other costs and expenses of litigating incurred by the City, even if Subdivider subsequently resumes and completes the work.

24. RELATIONSHIP OF PARTIES
Neither Subdivider nor any of its contractors, employees or agents shall be deemed to be agents of the City in connection with the Performance of Subdivider's obligations under this agreement.

25. SEVERABILITY
The provisions of this Agreement are severable. If any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of t he agreement shall remain in full force and effect.

26. INTEGRATED AGREEMENT
This Agreement represents t he full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof.

Any modification of this Agreement will be effective only by written execution signed by both City and Subdivider. All unchecked boxes do not apply to this Agreement.

IN WITNESS WHEREOF, the Parties have caused this agreement to be executed by their respective, duly authorized officers on the date listed above.

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Approved as to form:

Christopher D. Jensen
City Attorney
Attach Notary acknowledgement for Subdivider's signatures:

Attachment:

Exhibit "A"- Schedule of Bonds, Fees, Deposits

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CITY OF CUPERTINO:

Chad Mosley
Director of Public Works & City Engineer
SUBDIVIDER:

AlphaMcClellan LLC, a California limited
liability company
By: AlphaX RE Capital Inc., a California
co,pora~
Chun Yi
Manager & Authorized Signatory
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CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to I wh.ich this c.:rtifkate is auached , and not the truthfulness, accuracy, or ~-alidity of that documenL __ _ ____ _J State of California
County of
On .TAr 2-~1 '2.o'"2,'-t before me, -'P. ..__t:A __ S_~_ o_cJ<Jjt;, __ --_;f _________ , Notary Public, ( Her.: inscn name and title of the officer)
personally appeared _ i!. -=H-u =-=---'-,.J _____ 'l'--1 ____________________ _ who proved to me on the basis of satisfactory evidence to be the person()() whose name~ is/are subscribed to the within instrument and acknowledged to me that ~ /she/th~ executed the same in b?s/ber/tl'UMf authorized capacity(~ , and that by ~ er/t~ signature(~ on the instrument the personV'1, or the entity upon behalf of which the person(!) acted, executed the instrument.

I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my band and official seal.
"~'""~b.~~
(Notary Seal)
ra-::•mm' ADA SHOCKLEY "' l - ~ COMM. #2399975 I
~ ;_fl> , Notary Public - California ~ , • Santa Clara County i • My Comm. Expire s May 2, 2026 I

ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION Of THE ATTACHED DOCUMENT
!Title or Jescription of anacheJ document)
- - - - -- - --- - - --- - - - - (Title or description of attached document continued) Number of Pages __ Document Date ____ _
(Additmnal infonn:ition)

CAPACITY CLAIMED BY THE SIGNER
0 Individual (s)
0 Corporate Officer
(Tille)
D Partner(s)
O Attorney-in-Fact
0 Truslee(s)
0 Other ________ _ _ _ _ _
INSTRUCTIONS FOR COMPLETING THIS FORi\1
Any ac-loun,·l1ulgme11t cnmpleted in Califorma m,m cn111ai11 ,·erhioge e.xactl)' as appears abcwe In the notary s,•ction or a separate ai;lmo"·fodgme/11 form rn11st be proper(r completed and al/ached to that doc11me,1t. n,., only exception is if a documer1t is to be recorded all/side uf Cal((omia. 111 such instances. any altttmative a,·krtuwfcdgnwnr ,·erbiage u.s may IJt: pri11tecl u11 suc:h a d<X·tm1e,11 su long u,· rlw verhiage cine., not rpq11/re 1hr, 11nw,y '" do snmethi11g rltar i, illegal Jnr a notary /11 California (i.e cenifying th« a,,thnrr:.ed capacity of the signer). Please check the doc..imenr carefullv Jot· proper no/aria/ wording and a/loch rhi,< form if required. • State and County info!Til:'.ltion must be the State and County where the document signer(s) personally appe:m:d before the notary public for acknowledgment • Date of notarization must be the date that the signer(s) personally apr,can.-d which must al,;o be the same date the acknowledgment is completed. • The notary public m,m print his or her name as it appears within his or her commission followed by 3 COl!llll:'.I aod then your titk (no13ry public). • Print the n:une(s) of document signer(;) who personally appear at the time of notarization.
• Indicate the correct singul:u or plural form~ by crnss1og oft' 1ncom:c1 fonns (i.e. ~ /she.~ is /Me ) or circling the correct fom'IS. Failure 10 correctly indicate this information may lead to rejection of document recording. • The no:ary seal impression must be clear and photographically reproducible. lmrression must not cover text or Jinc:s. If seal impression smudges, re-seal if a sufiicicnt area pcnuits, otherwise complete a different acknowledgmem form. • S,gnarurc of the notary pubhc must match the signarure on file "~th the office of the county clerk.
❖ Additional information is not required but could help to ensure this acknowledgment 1s not misused or onochcd to a dirTercnl documenL ❖ Indicate title or type of anuchcd documenl, number of pages unJ date. ❖ Indicate the capaciry claimed by the ~;goer. If the claimed c;,pacity is a corporate officer, indicate the title (i.e. CEO, CFO, Sccrel3ry). • Securely :much this documem to the sign~d document
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Street Improvement Category:

PART A.

PART B.

PART C.

PART D.

PART E.

PART F.

PART G.

PART H.

PART I.

PART J.

PART K.

PART L.

Exhibit A

SCHEDULE OF BONDS, FEES, AND DEPOSITS
Faithful Performance Bond:
$148,800.00
Labor and Material Bond:
$148,800.00
Checking and Inspection Fee:
$7,440.00
Transportation Impact Fee:
$33,985.00
Storm Drainage Fee:
$7,375.00
Street Tree Fee:
$1,443.00
M ap Checking Fee:
$12,306.00
Park Fee:
$525,000.00
Encroachment Permit Fee
$3,304.00
Stormwater Management Plan Fee
$1,670.00
Grading Permit Fee
$14,938.00
Grading Bond
$250,000.00

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CITY OF CUPERTINO
Agenda Item
25-13670 Agenda Date: 2/4/2025
Agenda #: 8.

Subject: Future agenda items requested by City Councilmembers (“TBD List”) (Continued from the January 22, 2025 City Council meeting)

1. Review the TBD list and adopt the staff recommendations for items 5-11

2. Provide direction for items 1-4 and 12-15.

CITY OF CUPERTINO Page 1 of 1 Printed on 1/28/2025
powered by Legistar™101
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1 CITY COUNCIL STAFF REPORT
Meeting: January 22, 2025
Subject
Future agenda items requested by City Councilmembers (“TBD List”).

Recommended Action

1. Review the TBD list and adopt the staff recommendations for items 5-11

2. Provide direction for items 1-4 and 12-16.

Reasons for Recommendation
As required per the Council’s adopted Procedures Manual, the City Manager provides a quarterly report to Council regarding the status of future agenda items. These are items that at least two Councilmembers have requested to be added to a future City Council agenda.

Background
On September 17, 2024, staff presented a list of 14 TBD items for Council consideration.

Council voted on the next steps for each of the 14 items (described in Attachment A) and added one item to the future list. Since September 17, Council has added nine additional items to the TBD List for consideration. This list is included as Attachment B with staff recommendations for items 5-11. Staff is seeking Council direction for items 1-4 and 12-

16. A majority vote of the City Council can either agendize an item for discussion at a future date or remove an item from the list, as outlined in the Council Procedures Manual.

Sustainability Impact
No sustainability impact.

Fiscal Impact
No fiscal impact.

California Environmental Quality Act
Not applicable.
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2 City Work Program Item/Description
No/N/A
Council Goal
N/A
_____________________________________
Prepared by: Astrid Robles, Senior Management Analyst
Reviewed by: Tina Kapoor, Interim Assistant City Manager Christopher D. Jensen, City Attorney
Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – TBD List from September 2024 with Adopted Motion
B – TBD List as of January 2025
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Attachment A – To Be Determined (TBD) List from September 2024 with Adopted Motion # Requested Item Requestor/
Seconder
Date
Requested Recommendation Motion
1 Review the City’s financial
policy and best practices
Requestor:

Moore
Seconder:

Chao
Retained from
June per
Council
direction
At 3/19/24
and 5/14/24
Council
meetings
Recommend removing this item.

Staff provided an informational
memorandum on August 29, which
referenced a supplemental memo
(Attachment B) from Chandler Asset
Management where consultant
recommended no changes to the City’s
investment policy are recommended at this
time.

A review of the City’s Financial policies and
best practices will be presented to the
Council in Fall as part of Moss Adams
Audit Validation Process.

Council
consolidated this
item with #13 and
will be considered
for the City Work
Program
2 Study session on banning
artificial turf given the
environmental concerns
Requestor:

Moore
Seconder:

Chao
Retained from
June per
Council
direction
At 3/19/24
Council
meeting
Recommend removing this item.

Staff provided an informational
memorandum to Council on artificial turf
on August 29. Recent developments from
the City of Sunnyvale and Santa Clara
County found that more studies are needed
before a decision can be made on this topic.

Staff will continue to monitor and provide
updates as necessary.

Council approved
to remove this item
from the TBD List
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Attachment A – To Be Determined (TBD) List from September 2024 with Adopted Motion # Requested Item Requestor/
Seconder
Date
Requested Recommendation Motion
3 A future agenda item to
consider a community meeting
requirement for any project
requiring a general plan
amendment, so when it comes
to the Planning Commission or
City Council, there is
community input on the
amendment.

Requestor:

Chao
Seconder:

Wei
At 7/2/24
Council
meeting
Recommend removing this item.

Staff recommends Council proposes this
item as a future City Work Program item.

Council approved
to remove this item
from the TBD list
and will be
considered for the
City Work Program
4 Report to Council a cost
comparison of leasing vs.
buying office property in
Cupertino for a lease length of
time of 2 years (in the event that
plans for remodel and retrofit
are drawn up and executed,
staff leases an unremodeled
building for 2 years and returns)
or 7 years (in the event that a
purchased office building
requires $5M in remodel costs
which takes one year to
complete, and City Hall
relocates to it for 6 years, sells
the building in a flat office
market and returns). Both of
these scenarios would assume
City Hall is remodeled at $27M.

Requestor:

Moore
Seconder:

Chao
6/28/24
added by
email
A study session for this item is tentatively
scheduled to come to Council in October
2024. Afterwards, this item will be removed
from the TBD list.

This item has not
yet been agendized
and is still on the
TBD list.
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Attachment A – To Be Determined (TBD) List from September 2024 with Adopted Motion # Requested Item Requestor/
Seconder
Date
Requested Recommendation Motion
5 Draft a policy regarding
disclosure to the public of
remodeling costs of buildings
the Council is considering
purchase of in open session.

This policy would ensure that
the public will not be surprised
to find a negotiated
arrangement to provide a
Council-designated property
negotiator more than the
delegation of authority to
negotiate the cost of the
property (meaning Council shall
not negotiate remodeling costs
or process of determining
remodeling amounts in closed
session).

Requestor:

Moore
Seconder:

Chao
6/28/24
added by
email
A study session for this item is tentatively
scheduled to come to Council in October
2024. Afterwards, this item will be removed
from the TBD list.

This item has not
yet been agendized
and is still on the
TBD list.
6 Action Item/Study Session with
information/proposal on the
need for an interim city hall for
6-7 years, rather than one year
during the
renovation/construction of the
current city hall and any update
on the private-public
partnership that led to such
proposal.

Requestor:

Chao
Seconder:

Moore
7/1/24
added by
email
A study session for this item is tentatively
scheduled to come to Council in October
2024. Afterwards, this item will be removed
from the TBD list.

This item has not
yet been agendized
and is still on the
TBD list.
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Attachment A – To Be Determined (TBD) List from September 2024 with Adopted Motion # Requested Item Requestor/
Seconder
Date
Requested Recommendation Motion
7 Discuss and give direction on
the "wisdom of purchase"
versus leasing of any property
as an interim city hall, based on
prior council motions for city
hall renovation/rebuild, to
include the duration of the use
of the interim city hall, an
estimate of leasing/purchasing
prices and estimated
remodeling/earthquake retrofit
costs in general terms as
permitted in an open session,
before any offer is made on any
property.

The agenda item on June 18
Council meeting to authorize
the city managers as a
negotiator, only listed the
property address, but not the
"wisdom of the purchase".

Requestor:

Chao
Seconder:

Moore
7/9/24
added by
email
A study session for this item is tentatively
scheduled to come to Council in October
2024. Afterwards, this item will be removed
from the TBD list.

This item has not
yet been agendized
and is still on the
TBD list.
8 Consider updating the City
policy on homeless
encampments in
light of the U.S. Supreme Court
ruling: Grants Pass v. Johnson.

Requestor:

Wei
Seconder:

Moore
At 7/16/24
Council
meeting
A study session for this item is tentatively
scheduled to come to Council in October
2024. Afterwards, this item will be removed
from the TBD list.

This item was
discussed in
October 2024
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Attachment A – To Be Determined (TBD) List from September 2024 with Adopted Motion # Requested Item Requestor/
Seconder
Date
Requested Recommendation Motion
9 Consider a policy to provide
access to documents made
available for closed sessions
ahead of time with proper
security measures. Accordingly,
Councilmembers can read the
materials before and after a
closed session.

Requestor:

Chao
Seconder:

Moore
At 7/16/24
Council
meeting
Recommend removing this item.

No further action recommended. The City
Attorney and/or City Manager have
discretion to distribute confidential
information in a manner deemed to be
appropriate, given the sensitivity of the
information and the nature of the agenda
item.

Council voted to
keep this item on
the TBD List.
10 Consider the City Clerk being
appointed by and reporting to
the City Council.

Requestor:

Moore
Seconder:

Chao
At 7/16/24
Council
meeting
Recommend removing this item.

Research shows that 85% of City Clerk’s in
municipalities in San Mateo and Santa Clara
Counties are appointed by the City
Manager.

Council approved
to remove this item
from the TBD list
11 Consider the Farmers Market on
Sundays as a community
amenity for Cupertino on either
Torre Avenue or other locations
in the City.

Requestor:

Chao
Seconder:

Moore
At 7/16/24
Council
meeting
Recommend removing this item.

Staff provided an informational memo on
June 27 outlining the cost and other impacts
this would have on the City.

Council approved
to remove this item
from the TBD list
12 An agenda item at a Council
Meeting with a presentation and
ability to ask questions to the
Historical Society about how
they are utilizing the $40k
funding and about what
programs they are providing.

Requestor:

Chao
Seconder:

Moore
At 9/4/24
Council
meeting
Recommend removing this item.

Council has delegated this authority to the
Parks and Recreation Commission. The
Council approved contract states that the
Cupertino Historical Society must:

Council approved
to remove this item
from the TBD list
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Attachment A – To Be Determined (TBD) List from September 2024 with Adopted Motion # Requested Item Requestor/
Seconder
Date
Requested Recommendation Motion

1. Submit annual grant funding report as
stated in Section 7 - Grant Report.

2. Present an annual report of fundraising
activities, current work plan
achievements, and future work plan
items and projects to the Parks and
Recreation Commission.
13 An item to discuss the
investment policy and quarterly
treasurers report where we also
invite the entire audit
committee to attend.

Requestor:

Chao
Seconder:

Moore
At 9/4/24
Council
meeting
Recommend removing this item.

The investment policies are already
regularly agendized for both Audit
Committee and City Council in the fall for
OPEB/Pension and in the spring for all other
City investments. In addition, an Audit
Committee member is required to be
present for any Audit related items on the
City Council agenda. This provides City
Council the opportunity to ask questions of
the audit committee representative as this
meeting.

Council
consolidated this
item with #1 and
will be considered
for the City Work
Program
14 Consider increasing radius
notifications from 300 feet to 500
feet and adding notifications to
affected neighborhoods for
general plan amendments and
rezoning ordinances
Requestor:

Chao
Seconder:

Moore
At 9/4/24
Council
meeting
Recommend removing this item.

Recommend adding this as a future City
Work Program item. This item has been
considered and was removed by Council at
the November 7, 2023, meeting with a 3-2
vote. At that meeting the staff
recommendation was to remove this item
due to budget constraints and staff
limitations.

Council approved
to remove this item
from the TBD list
and will be
considered for the
City Work Program
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Attachment A – To Be Determined (TBD) List from September 2024 with Adopted Motion # Requested Item Requestor/
Seconder
Date
Requested Recommendation Motion
15 Consider allowing limited use
of sound amplification devices
in parks, such as it does not
reach 50 feet away
(Maybe not allowed in nature
preserve to not disturb wildlife)
Requestor:

Chao
Seconder:

Moore
Added at
9/17
Council
Meeting
N/A Council approved
adding this item to
the next TBD List
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Attachment B – January 2025 To Be Determined (TBD) List # Requested Item Requestor/
Seconder
Date
Requested Recommendation
1 Report to Council a cost comparison of leasing vs. buying office property in Cupertino for a lease length of time of 2 years (in the event that plans for remodel and retrofit are drawn up and executed, staff leases an unremodeled building for 2 years and returns) or 7 years (in the event that a purchased office building requires $5M in remodel costs which takes one year to complete, and City Hall relocates to it for 6 years, sells the building in a flat office market and returns). Both of these scenarios would assume City Hall is remodeled at $27M.

Requestor:

Moore
Seconder:

Chao
6/28/24
added by
email
This item was postponed in
October. Council can either:

1. Agendize this discussion

2. Remove from TBD list
2 Draft a policy regarding disclosure to the public of remodeling costs of buildings the Council is considering purchase of in open session. This policy would ensure that the public will not be surprised to find a negotiated arrangement to provide a Council-designated property negotiator more than the delegation of authority to negotiate the cost of the property (meaning Council shall not negotiate remodeling costs or process of determining remodeling amounts in closed session).

Requestor:

Moore
Seconder:

Chao
6/28/24
added by
email
This item was postponed in
October. Council can either:

1. Agendize this discussion

2. Remove from TBD list
3 Action Item/Study Session with information/proposal on the need for an interim city hall for 6-7 years, rather than one year during the renovation/construction of the current city hall and any update on the private-public partnership that led to such proposal.

Requestor:

Chao
Seconder:

Moore
7/1/24
added by
email
This item was postponed in
October. Council can either:

1. Agendize this discussion

2. Remove from TBD list
4 Discuss and give direction on the "wisdom of purchase" versus leasing of any property as an interim city hall, based on prior council motions for city hall renovation/rebuild, to include the duration of the use of the interim city hall, an estimate of leasing/purchasing prices and estimated remodeling/earthquake retrofit costs in general terms as permitted in an open session before any offer is made on any property. The agenda item on June 18 Council meeting to authorize the city managers as a negotiator, only listed the property address, but not the "wisdom of the purchase".

Requestor:

Chao
Seconder:

Moore
7/9/24
added by
email
This item was postponed in
October. Council can either:

1. Agendize this discussion

2. Remove from TBD list
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Attachment B – January 2025 To Be Determined (TBD) List # Requested Item Requestor/
Seconder
Date
Requested Recommendation
5 Consider a policy to provide access to documents made available for closed sessions ahead of time with proper security measures.

Accordingly, Councilmembers can read the materials before and after a closed session.

Requestor:

Chao
Seconder:

Moore
At 7/16/24
Council
meeting
Staff recommends removing
this item. Materials are
confidential and should be
based on the sensitivity of
the information and the
nature of the agenda item.
6 Consider regulations on sound amplification devices in parks Requestor:

Moore
Seconder:

Chao
At 9/17/24
Council
meeting
Staff recommends removing
this item. Sound
amplification is currently
allowed in parks with a valid
City permit as specified in
CMC 13.04.120 Use of Park
Property Section I.
7 Review the City Work Program Process Requestor:

Chao
Seconder:

Moore
At 12/3/24
Council
meeting
Staff recommends removing
this item. This discussion
was held at 12/17/24 City
Council meeting.
8 Review the Cupertino City Council Procedures Manual Requestor:

Chao
Seconder:

Moore
At 12/3/24
Council
meeting
Council can either:

1. Agendize this discussion

2. Remove from TBD list
9 Review the current list of future agenda items requested by Councilmembers (“TBD List”)
Requestor:

Chao
Seconder:

Moore
At 12/3/24
Council
meeting
Staff recommends removing
this item. This item is
agendized for the 1/22/25
City Council meeting.
10 Consider changing regular City Council meetings to Wednesdays Unanimous At 12/17/24 Council
meeting
Staff recommends removing
this item and keeping the
current Council schedule
adopted on 12/17/24. This
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Attachment B – January 2025 To Be Determined (TBD) List # Requested Item Requestor/
Seconder
Date
Requested Recommendation
will reduce complications
and scheduling conflicts
with a variety of other
organizations and City
Commissions.
11 Review the architectural standards for 5G towers Requestor:

Wang
Seconder:

Chao
At 12/17/24
Council
Meeting
Staff recommends removing
this item. The 5G ordinance
is being considered as part of
the FY 25-27 City Work
Program discussion.
12 Reactivate the Legislative Review Committee Requestor:

Chao
At 12/17/24
Council
meeting
Council can either:

1. Agendize this discussion

2. Remove from TBD list

3. Consider this as part of
the FY 25-27 City Work
Program discussion.
13 Reactivate the Economic Development Committee Requestor:

Chao
At 12/17/24
Council
Meeting
Council can either:

1. Agendize this discussion

2. Remove from TBD list

3. Consider this as part of
the FY 25-27 City Work
Program discussion.
14 Restore the previous responsibilities of the Audit Committee Requestor:

Chao
At 12/17/24
Council
Meeting
Council can either:

1. Agendize this discussion

2. Remove from TBD list

3. Consider this as part of
the FY 25-27 City Work
Program discussion.
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Attachment B – January 2025 To Be Determined (TBD) List # Requested Item Requestor/
Seconder
Date
Requested Recommendation
15 For transportation projects and added lane reductions to fall under the jurisdiction of the Planning Commission
Requestor:

Wang
Seconder:

Chao
At 12/17/24
Council
Meeting
Council can either:

1. Agendize this discussion

2. Remove from TBD list

3. Consider this as part of
the FY 25-27 City Work
Program discussion.
16 Guidelines and Procedures regarding Proclamations and Certificates Chao 1/15/25 added by
email
Council can either:

1. Agendize this discussion

2. Remove from TBD list
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CITY OF CUPERTINO
Agenda Item
25-13674 Agenda Date: 2/4/2025
Agenda #: 9.

Subject: Award a construction contract to Golden Bay Construction in the amount of $1,569,798, approve a first amendment to the design services contract with Pakpour Consulting Group to increase the contract by $96,620 for a total not-to-exceed contract amount of $310,483 and approve a budget modification in the amount of $1,500,000 for the Stevens Creek Boulevard Class IV Bike Lane Project

1. Award a construction contract for the Stevens Creek Boulevard Class IV Bike Lane Phase 2A Project (budget unit 420-99-036, project number 2022-15) in the amount of $1,569,798 to Golden Bay Construction, Inc.;

2. Authorize the City Manager to execute the construction contract with Golden Bay Construction, Inc. when all conditions have been met;

3. Authorize the Director of Public Works to execute any necessary construction change orders up to a construction contingency amount of $156,980 (10%) for a total contract amount of $1,726,778;

5. Adopt Resolution No. 25-004 approving budget modification #2425-377, approving an increase of grant revenue estimates of $1,500,000 and a transfer out of $693,000. This includes an increase of $807,000 in Federal grant funds and a transfer of $693,000 in SB1 Grant Funds from the Transportation Fund (270-85-821) into the Capital Improvement Program Capital Project Fund (420- 99-036)
CITY OF CUPERTINO Page 1 of 1 Printed on 1/28/2025
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1 CITY COUNCIL STAFF REPORT
Meeting: February 4, 2025
Subject
Award a construction contract to Golden Bay Construction in the amount of $1,569,798, approve a first amendment to the design services contract with Pakpour Consulting Group to increase the contract by $96,620 for a total not-to-exceed contract amount of $310,483 and approve a budget modification in the amount of $1,500,000 for the Stevens Creek Boulevard Class IV Bike Lane Project.

Recommended Action

2. Authorize the City Manager to execute the construction contract with Golden Bay Construction, Inc. when all conditions have been met;

3. Authorize the Director of Public Works to execute any necessary construction change orders up to a construction contingency amount of $156,980 (10%) for a total contract amount of $1,726,778;

4. Authorize the City Manager to amend the Design Services Contract with Pakpour Consulting Group to increase the amount by $96,620 for a total not-toexceed contract amount of $310,483 for the 2022-11 Stevens Creek Boulevard Class IV Bike Lane Phase 2B Design Project; and

5. Adopt Resolution No. 25-XXX approving budget modification #2425-377, approving an increase of grant revenue estimates of $1,500,000 and a transfer out of $693,000. This includes an increase of $807,000 in Federal grant funds and a transfer of $693,000 in SB1 Grant Funds from the Transportation Fund (270-85- 821) into the Capital Improvement Program Capital Project Fund (420-99-036).

Reasons for Recommendation
Background
The 2016 Cupertino Bicycle Transportation Plan identified Stevens Creek Boulevard Class IV Bike Lane Project (Project) as the highest priority project. This Project includes upgrading the existing Class II buffered bike lane to a physically separated Class IV bike lane along Stevens Creek Boulevard from Tantau Avenue to Foothill Boulevard and related traffic signal upgrades.
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2 No vehicle lanes are being removed or repurposed as a part of this project.

In July 2016, staff submitted a One Bay Area Grant (OBAG) Cycle 2 application to the Metropolitan Transportation Commission (MTC) for grant funding in the amount of $807,000; however, due to limited funds and the competitive nature of the grant the Project was not awarded the grant at that time.

To facilitate implementation, the Project was broken into three phases. Phase 1 included Tantau Avenue to North Wolfe Road, Phase 2 includes North Wolfe Road to Mary Avenue, and Phase 3 includes Mary Avenue to Foothill Boulevard. Phase 1 was adopted into the Fiscal Year (FY) 2018-2019 Capital Improvement Program (CIP) and was designed, constructed, and completed on February 12, 2021.

Phase 2 was adopted into the FY 2020-2021 CIP with an approved budget of $350,000 for design. On May 18, 2021, the City Council accepted the recommendation to award a design service contract to Pakpour Consulting Group in the amount of $213,863 for the design of Phase 2.

To facilitate construction, Phase 2 was split into two segments. Segment one (Phase 2A) is from Wolfe Road to De Anza Boulevard, and segment 2 (Phase 2B) from De Anza Boulevard to Mary Avenue. In 2021, the FY 2021-2022 CIP was adopted with an approved budget of $2,000,000 for the Phase 2A Construction.

In 2022, MTC informed staff that due to other agencies being unable to commit to obligating the OBAG funds for their projects, funding was now available for the City of Cupertino in support of this Project. On April 19, 2022, the City Council accepted the recommendation to adopt a resolution of local support, which is required to complete the application process and for the City to receive the $807,000 of OBAG funding (with a required local match of $93,000.)
As Phase 2A progressed into final design, with an engineer’s construction estimate of approximately $1,500,000, and with budget concerns regarding the California Department of Tax and Fee Administration audit, staff sought to acquire additional external funding to supplement the cost of this Project. On May 21, 2024, the City Council accepted the recommendation to adopt a resolution establishing a list of projects proposed to be funded by Senate Bill (SB) 1 funds. The Phase 2 project is budgeted to receive $693,000 of SB 1 funds, with a required local match of $32,000.

Phase 2B design will include traffic signal upgrades at Bandley Drive and Stevens Creek Boulevard. The FY 2018-2019 CIP was adopted with an approved budget of $150,000 toward design and construction of these improvements in order to enhance pedestrian and vehicle safety at this intersection. Approximately $24,000 of this $150,000 budget has 117
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3 been received from developers in-lieu fees, with the remaining $126,000 anticipated from approved developments that have not yet submitted applications or paid fees.

Initiation of Phase 3 will be proposed in a future FY CIP.

Construction Contract
Staff completed the final design of Phase 2A and advertised the Project for public bid on November 5, 2024. The bid documents issued by the City are available at https://apps.cupertino.org/details/745. The engineer’s estimate for this project was $1,500,000. On December 5, 2024, the following bids were received:

Bidder Total Base Bid Amount
Golden Bay Construction, Inc. $1,569,798.00
Sposeto Engineering, Inc. $1,642,469.00
Granite Rock Company $1,654,934.00
Joseph J. Albanese, Inc. $1,693,385.00
Ray’s Electric $1,744,107.00
The Public Works Department reviewed Golden Bay Construction, Inc.’s bid proposal and determined their bid to be the lowest responsive and responsible bid per the Instruction to Bidders and Cupertino Municipal Code. Therefore, staff recommends awarding the construction contract to Golden Bay Construction, Inc., for the contract amount of $1,569,798 and include a 10% construction contingency in the amount of $156,980, for a total contract amount not to exceed $1,726,778. Construction contingency covers other costs that could be incurred due to unforeseen circumstances and is a typical contracting best practice.

Design Services Contract
As mentioned earlier, the City Council awarded a design services agreement to Pakpour Consulting Group in the amount of $213,863 to design Phase 2, which includes Phase 2A and Phase 2B. During design of Phase 2A, additional work involving potholing for underground utilities was required for the traffic signal upgrades. To meet our timeline for grant funding, staff reallocated Phase 2B funds towards Phase 2A to perform this additional work. This additional work will help to streamline the construction schedule and reduce the potential for change orders due to unforeseen underground utilities.

Staff recommend amending the design services contract with Pakpour Consulting Group to increase the contract amount by $96,620 for a total not-to-exceed amount of $310,483 to complete the design of Phase 2B.

Next Steps
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4 If approved, construction is anticipated to begin in March 2025, with completion estimated in September 2025.

If this item is not approved, the City will lose the competitive OBAG funds of $807,000.

The SB 1 funds, in the amount of $693,000, can be reallocated to other eligible paving and safety related City projects.

Sustainability Impact
This project will enhance safety for bicycle transportation by installing concrete barriers within the existing striped buffer to create a physical separation between the existing Class II bike lane and vehicular traffic. This project promotes bicycling as a form of active transportation to help meet the City’s greenhouse gas emissions reduction goals.

Fiscal Impact
The Stevens Creek Boulevard Class IV Bikeway Phase 2A project budget (420-99-036) has a total City-funded approved project budget of $2,500,090. The total expenditures after completion of Phase 2A construction of the project are projected to be $2,222,261, with remaining funds of $277,829. The project costs will be offset in part by external funding reimbursements of $1,500,000 from the OBAG and SB 1 funding. A transfer of SB1 funds is recommended from fund 270 to fund 420. Historically, the City has budgeted all SB1 dollars in fund 270. Subsequent to budget adoption, this project was approved for SB1 funding, necessitating the requested transfer of funds. Additionally, OBAG grant revenues which were not previously budgeted, are now being requested for allocation to this project.

Fiscal Summary Table
Current Funding Status (Budget) Amount
City Approved Funds FY 21 – Design Phase $350,000
City Approved Funds FY 19 – Bandley Intersection
(Phase 2B)
$124,432
External Funds FY 19 – Bandley Intersection (Developer
In-Lieu fees) (Phase 2B)
$25,658
City Approved Funds FY 22 – Construction (Phase 2A) $2,000,000 Design and Construction Phase 2 – Subtotals:
(budget unit 420-99-036)
$2,500,090
//
//
//
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Projected Funding Impact (Expenses) Amount
Design Phase Expenditures to date ($213,863)
Design Phase (for Phase 2B Design completion) ($96,620) Construction Contract ($1,569,798 base contract and
$156,980 contingency) – This Action
($1,726,778)
Construction Management ($185,000)
Subtotal: ($2,222,261)
Summary Amount
Current Project Budget (420-99-036) $2,500,090
Projected Funding Impact ($2,222,261)
Remaining Funds: $277,829
Construction Phase 2A
External Funding
Amount Local Match Total Amount
One Bay Area Grant (OBAG) $807,000 $93,000 $900,000
Senate Bill 1 (SB1) $693,000 $32,000 $725,000
Total $1,500,000 $125,000 $1,625,000
These grant funds will offset Phase 2A expenditures. The City anticipates receiving the full amount of grant funds upon completion of Phase 2A. Staff will complete Phase 2B design and will pursue proposals for construction of Phase 2B in 2026. Staff will return to City Council for necessary budget requests for Phase 2B after construction bids are received for that phase.

City Work Program (CWP) Item: No
CWP Item Description: N/A
Council Goal: N/A
California Environmental Quality Act (CEQA)
This project is categorically exempt from CEQA under CEQA Guidelines Section 15301 (c), for minor alteration of existing bicycle lanes, signal poles, and existing facilities.

Public Resources Code section 21080.25 (construction of bicycle facilities). _____________________________________
Prepared by: Jason Wong, Senior Civil Engineer
Reviewed by: Chad Mosley, Director of Public Works
Reviewed by: Tina Kapoor, Interim Assistant City Manager Approved for Submission by: Pamela Wu, City Manager
Attachments:

A – Draft Construction Contract
B – Draft Resolution
C - Contract Documents
D - 01-22-2025 Supplemental Report
E - 01-22-2025 Desk Item 5 120
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Stevens Creek Boulevard Class IV Bikeway Phase 2A CONTRACT CIP Project #2022-15, Federal No. CML-5318 (036)
Contract
This public works contract (“Contract”) is entered into by and between City of Cupertino (“City”) and Golden Bay Construction, Inc. (“Contractor”), for work on the Stevens Creek Boulevard Class IV Bike Lane Phase 2A Project, Federal-Aid Project No. CML-5318 (036), CIP Project No. 2022- 15 (“Project”).

The parties agree as follows:

1. Award of Contract. In response to the Notice Inviting Bids, Contractor has submitted a Bid Proposal to perform the Work to construct the Project. On February 4, 2025, City authorized award of this Contract to Contractor for the amount set forth in Section 4, below. City has elected to include the following Project alternate(s) in the Contract: No alternates.

2. Contract Documents. The Contract Documents incorporated into this Contract include and are comprised of all of the documents listed below. The definitions provided in Article 1 of the General Conditions apply to all of the Contract Documents, including this Contract.

2.1 Notice Inviting Bids;

2.2 Instructions to Bidders;

2.3 Addenda, if any;

2.4 Bid Proposal and attachments thereto;

2.5 Contract;

2.6 Payment and Performance Bonds;

2.7 General Conditions;

2.8 Special Conditions;

2.9 Project Plans and Specifications;

2.10 Change Orders, if any;

2.11 Notice of Potential Award;

2.12 Notice to Proceed; and

2.13 The following:
1) Exhibit A – Form FHWA 1273
2) Exhibit B – Minimum Federal Wage Rates Determination 3) Exhibit C – Bid Schedule

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

4. Payment. As full and complete compensation for Contractor’s timely performance and completion of the Work in strict accordance with the terms and conditions of the Contract Documents, City will pay Contractor $1,569,978.00 (“Contract Price”) for all of Contractor’s direct and indirect costs to perform the Work, including all labor, materials, supplies, equipment, taxes, insurance, bonds and all overhead costs, in accordance with the payment provisions in the General Conditions.

5. Time for Completion. Contractor will fully complete the Work for the Project, meeting all requirements for Final Completion, within 60 working days from the start date set forth in the Notice to Proceed (“Contract Time”). By signing below, Contractor expressly waives any claim for delayed early completion.

Attachment A
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Stevens Creek Boulevard Class IV Bikeway Phase 2A CONTRACT CIP Project #2022-15, Federal No. CML-5318 (036)

6. Liquidated Damages. As further specified in Section 5.4 of the General Conditions, if Contractor fails to complete the Work within the Contract Time, City will assess liquidated damages in the amount of $4,200 per day for each day of unexcused delay in achieving Final Completion, and such liquidated damages may be deducted from City’s payments due or to become due to Contractor under this Contract.

7. Labor Code Compliance.

7.1 General. This Contract is subject to all applicable requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code, including requirements pertaining to wages, working hours and workers’ compensation insurance, as further specified in Article 9 of the General Conditions.

7.2 Prevailing Wages. This Project is subject to the prevailing wage requirements applicable to the locality in which the Work is to be performed for each craft, classification or type of worker needed to perform the Work, including employer payments for health and welfare, pension, vacation, apprenticeship and similar purposes. Copies of these prevailing rates are available online at http://www.dir.ca.gov/DLSR. This Project is funded in whole or in part by federal funds and therefore subject to both State and Federal hourly minimum rates for wages and fringe benefits and when the two rates differ for similar kinds of labor, the Contractor shall not pay less than the higher rate.

The Minimum Federal Wage Rates Determination is hereby physically attached, in conformance with federal 10-day rule as a part of this contract (Exhibit B). This wage rate determination applies to federal-aid contracts and all work performed exceeding $2000 by subcontracts and subsequent lower-tier subcontracts and required be physically included in each executed contract.

7.3 DIR Registration. City may not enter into the Contract with a bidder without proof that the bidder and its Subcontractors are registered with the California Department of Industrial Relations to perform public work pursuant to Labor Code § 1725.5, subject to limited legal exceptions.

8. Workers’ Compensation Certification. Pursuant to Labor Code § 1861, by signing this Contract, Contractor certifies as follows: “I am aware of the provisions of Labor Code § 3700 which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work on this Contract.”

9. Conflicts of Interest. Contractor, its employees, Subcontractors and agents, may not have, maintain or acquire a conflict of interest in relation to this Contract in violation of any City ordinance or requirement, or in violation of any California law, including Government Code § 1090 et seq., or the Political Reform Act, as set forth in Government Code § 81000 et seq. and its accompanying regulations. Any violation of this Section constitutes a material breach of the Contract.

10. Independent Contractor. Contractor is an independent contractor under this Contract and will have control of the Work and the means and methods by which it is performed. Contractor and its Subcontractors are not employees of City and are not entitled to participate in any health, retirement, or any other employee benefits from City.

11. Notice. Any notice, billing, or payment required by or pursuant to the Contract Documents must be made in writing, signed, dated and sent to the other party by personal delivery, U.S. Mail, a reliable overnight delivery service, or by email as a PDF file. Notice is deemed 122
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Stevens Creek Boulevard Class IV Bikeway Phase 2A CONTRACT CIP Project #2022-15, Federal No. CML-5318 (036)
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: Contractor:

Jason Wong, Senior Civil Engineer Johnny Zanette, President 10300 Torre Avenue 3826 Depot Road
Cupertino, CA 95014 Hayward, CA 94545
(408) 777-3215 (510) 783-2960
[email protected] [email protected]

12. General Provisions.

12.1 Assignment and Successors. Contractor may not assign its rights or obligations under this Contract, in part or in whole, without City’s written consent. This Contract is binding on Contractor’s and City’s lawful heirs, successors and permitted assigns.

12.2 Third Party Beneficiaries. There are no intended third-party beneficiaries to this Contract.

12.3 Governing Law and Venue. This Contract will be governed by California law and venue will be in the Santa Clara County Superior Court, and no other place.

Contractor waives any right it may have pursuant to Code of Civil Procedure § 394, to file a motion to transfer any action arising from or relating to this Contract to a venue outside of Santa Clara County, California.

12.4 Amendment. No amendment or modification of this Contract will be binding unless it is in a writing duly authorized and signed by the parties to this Contract.

12.5 Integration. This Contract and the Contract Documents incorporated herein, including authorized amendments or Change Orders thereto, constitute the final, complete, and exclusive terms of the agreement between City and Contractor.

12.7 Iran Contracting Act. If the Contract Price exceeds $1,000,000, Contractor certifies, by signing below, that it is not identified on a list created under the Iran Contracting Act, Public Contract Code § 2200 et seq. (the “Act”), as a person engaging in investment activities in Iran, as defined in the Act, or is otherwise expressly exempt under the Act.

12.8 Authorization. Each individual signing below warrants that he or she is authorized to do so by the party that he or she represents, and that this Contract is legally binding on that party. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporations Code § 313.

13. Federal Requirement. The provisions of Form FHWA 1273 are hereby physically attached, unmodified, as a part of this contract (Exhibit A). This provision applies to federal-aid contracts and all work performed by subcontracts and subsequent lower-tier subcontracts and is required to be physically included in each executed contract. [Signatures are on the following page.]
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Stevens Creek Boulevard Class IV Bikeway Phase 2A CONTRACT CIP Project #2022-15, Federal No. CML-5318 (036)
The parties agree to this Contract as witnessed by the signatures below:

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

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

END OF CONTRACT
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Attachment B
RESOLUTION NO. __________

A RESOLUTION OF THE CUPERTINO CITY COUNCIL

APPROVING A BUDGET MODIFICATION AND AN INCREASE OF
GRANT REVENUE ESTIMATES OF $1,500,000 TO THE STEVENS CREEK BOULEVARD CLASS IV BIKEWAY PHASE 2A PROJECT FUND
WHEREAS, the orderly administration of municipal government depends on a sound fiscal policy of maintaining a proper ratio of expenditures within anticipated revenues and available monies; and
WHEREAS, accomplishing City Council directives, projects, and programs and performing staff duties and responsibilities likewise depends on the monies available for that purpose; and
WHEREAS, the City Manager has determined that the balances from the funds specified in this resolution are adequate to cover the proposed transfer appropriations and therefore recommends the fund reallocations described herein; and
NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby approve the recommended fund reallocations described herein.

PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 4th day of February 2025, by the following vote:

Members of the City Council
AYES:

NOES:

ABSENT:

ABSTAIN:
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Resolution No. __________

Page 2 ends

SIGNED:
________
Liang Chao, Mayor
City of Cupertino
________________________
Date
ATTEST:

________
Kirsten Squarcia, City Clerk
________________________
Date
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Resolution No. __________

Page 3 ends

EXHIBIT A
Appropriation Amendment
by Fund
Revenue Appropriations Fund Balance
(Use of)
270 Transportation Fund $0 $693,000 ($693,000)
420 Capital Improvement
Fund
$1,500,000 $0 $1,500,000
TOTAL $1,500,000 $693,000 $807,000
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10/28/2024
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GENERAL NOTES, ABBREVIATIONS & LEGEND

ABBREVIATIONS CITY OF CUPERTINO GENERAL NOTES
”
” LEGEND
Pakpour Consulting Group, Inc.
6601 Owens Drive, Suite 230
Pleasanton, CA 94588
925.224.7717 Fax 925.224.7726
www.pcgengr.com
SHEET OF 17 REVISIONS
AUGUST 2024

IMPROVEMENT PLANS FOR
STEVENS CREEK BOULEVARD CLASS IV BIKEWAY PHASE 2A
File: CALIFORNIA
Scale:

Proj. Engr:

Checked:

Drawn:

Designed:

Date: 8/13/2024
WL
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CITY APPR.

DATE APPR. DATE
DESIGN
BY
DESIGN CONTRACTOR AGREES THAT HE SHALL ASSUME SOLE AND COMPLETE RESPONSIBILITY FOR JOB SITE CONDITIONS DURING THE COURSE OF CONSTRUCTION OF THIS PROJECT, INCLUDING SAFETY OF ALL PERSONS AND PROPERTY; THAT THIS REQUIREMENT SHALL APPLY CONTINUOUSLY AND NOT BE LIMITED TO NORMAL WORKING HOURS; AND THAT THE CONTRACTOR SHALL DEFEND, INDEMNIFY AND HOLD THE OWNER AND THE ENGINEER HARMLESS FROM ANY AND ALL LIABILITY, REAL OR ALLEGED, IN CONNECTION WITH THE PERFORMANCE OF WORK ON THIS PROJECT, EXCEPTING FOR LIABILITY ARISING FROM THE SOLE NEGLIGENCE OF THE OWNER OR THE ENGINEER.

CUPERTINO

CITY OF

CUPERTINO

KAW/JP DE ANZA BOULEVARD TO WOLFE ROAD/MILLER AVENUE
2 G-2
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X
N
Pakpour Consulting Group, Inc.
6601 Owens Drive, Suite 230
Pleasanton, CA 94588
925.224.7717 Fax 925.224.7726
www.pcgengr.com
SHEET OF 17 REVISIONS
AUGUST 2024

IMPROVEMENT PLANS FOR
STEVENS CREEK BOULEVARD CLASS IV BIKEWAY PHASE 2A
File: CALIFORNIA
Scale:

Proj. Engr:

Checked:

Drawn:

Designed:

Date: 8/13/2024
WL
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CITY APPR.

CUPERTINO

CITY OF

CUPERTINO

KAW/JP DE ANZA BOULEVARD TO WOLFE ROAD/MILLER AVENUE
3 D-1

BUS STOP/BIKE PATH DETAIL

IN-LINE BUS STOP/BIKE PATH DETAIL
1" = 10'
A

BUS STOP TOP OF CURB ALIGNMENT LINE AND CURVE TABLE

BUS STOP ISLAND LINE AND CURVE TABLE

HORIZONTAL CONTROL PLAN
SEE SHEET D-2 FOR BUS STOP/BIKE PATH

STRIPING DETAILS
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N YIELD TO PEDS
Pakpour Consulting Group, Inc.
6601 Owens Drive, Suite 230
Pleasanton, CA 94588
925.224.7717 Fax 925.224.7726
www.pcgengr.com
SHEET OF 17 REVISIONS
AUGUST 2024

IMPROVEMENT PLANS FOR
STEVENS CREEK BOULEVARD CLASS IV BIKEWAY PHASE 2A
File: CALIFORNIA
Scale:

Proj. Engr:

Checked:

Drawn:

Designed:

Date: 8/13/2024
WL
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CITY APPR.

CUPERTINO

CITY OF

CUPERTINO
KAW/JP DE ANZA BOULEVARD TO WOLFE ROAD/MILLER AVENUE 4
D-2

BUS STOP/BIKE PATH DEMO AND STRIPING DETAIL

IN-LINE BUS STOP/BIKE PATH DEMO PLAN
1" = 10' C

IN-LINE BUS STOP/BIKE PATH SIGNING AND STRIPING DETAIL
1" = 10' B

YIELD CONTROL AND YIELD LINE MARKINGS
1" = 10' A
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Pakpour Consulting Group, Inc.
6601 Owens Drive, Suite 230
Pleasanton, CA 94588
925.224.7717 Fax 925.224.7726
www.pcgengr.com
SHEET OF 17 REVISIONS
AUGUST 2024

IMPROVEMENT PLANS FOR
STEVENS CREEK BOULEVARD CLASS IV BIKEWAY PHASE 2A
File: CALIFORNIA
Scale:

Proj. Engr:

Checked:

Drawn:

Designed:

Date: 8/13/2024
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CITY APPR.

CUPERTINO

CITY OF

CUPERTINO

KAW/JP DE ANZA BOULEVARD TO WOLFE ROAD/MILLER AVENUE
5 D-3

PRECAST CONCRETE DETAILS

PRECAST CONCRETE BLOCK ELEVATION VIEW
N.T.S.

PRECAST CONCRETE BLOCK PLAN VIEW
N.T.S.

PRECAST CONCRETE BLOCK LOCATION
N.T.S.

PRECAST CONCRETE END BLOCK ELEVATION VIEW
N.T.S.

PRECAST CONCRETE END BLOCK PLAN VIEW
N.T.S.

PRECAST CONCRETE END BLOCK LOCATION
N.T.S.

A-A PRECAST CONCRETE BLOCK AND

PRECAST CONCRETE END BLOCK

CROSS SECTION
N.T.S.

OM2-2H OBJECT MARKER AND BASE
N.T.S.

G
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N
N
Pakpour Consulting Group, Inc.
6601 Owens Drive, Suite 230
Pleasanton, CA 94588
925.224.7717 Fax 925.224.7726
www.pcgengr.com
SHEET OF 17 REVISIONS
AUGUST 2024

IMPROVEMENT PLANS FOR
STEVENS CREEK BOULEVARD CLASS IV BIKEWAY PHASE 2A
File: CALIFORNIA
Scale:

Proj. Engr:

Checked:

Drawn:

Designed:

Date: 8/13/2024
WL
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CITY APPR.

CUPERTINO

CITY OF

CUPERTINO

KAW/JP DE ANZA BOULEVARD TO WOLFE ROAD/MILLER AVENUE
6 D-4
N. DE ANZA BLVD SIGNING/STRIPING DETAIL
N. DE ANZA BLVD SIGNING/STRIPING DETAIL
1" = 20'
A

MILLER AVENUE SIGNING/STRIPING DETAIL
1" = 20'
B
DETAIL 37B
NTS
C
DETAIL 38
NTS
D
DETAIL 39 AND 39A
NTS
E

CONTINENTAL CROSSWALK
NTS
F

TWO-STAGE LEFT -TURN BOX
NTS
G
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TO TORRE AVE
EXIT

CITY HALL

LIBRARY
TO N. BLANEY AVE
EXIT
TO S. BLANEY AVE
EXIT
TO N. PORTAL AVE
EXIT
TO S. PORTAL AVE
EXIT

TO PERIMETER RD
(NORTH)
EXIT

MARKETPLACE
EXIT
YIELD
TO
PEDS
Pakpour Consulting Group, Inc.
6601 Owens Drive, Suite 230
Pleasanton, CA 94588
925.224.7717 Fax 925.224.7726
www.pcgengr.com
SHEET OF 17 REVISIONS
AUGUST 2024

IMPROVEMENT PLANS FOR
STEVENS CREEK BOULEVARD CLASS IV BIKEWAY PHASE 2A
File: CALIFORNIA
Scale:

Proj. Engr:

Checked:

Drawn:

Designed:

Date: 8/13/2024
WL
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CITY APPR.

CUPERTINO

CITY OF

CUPERTINO

KAW/JP DE ANZA BOULEVARD TO WOLFE ROAD/MILLER AVENUE
7 D-5

SIGNING DETAILS

TORRE AVE EXIT SIGN
N.T.S.

N. BLANEY AVE EXIT SIGN
N.T.S.

S. BLANEY AVE EXIT SIGN
N.T.S.

N. PORTAL AVE EXIT SIGN
N.T.S.

PERIMETER RD (N) EXIT SIGN
N.T.S.

MARKETPLACE EXIT SIGN
N.T.S.

S. PORTAL AVE EXIT SIGN
N.T.S.

N.T.S.

BICYCLE GUIDE SIGN AT

TRANSIT STOP

A B C D

E F G H

CITY STANDARD SIGN POST
N.T.S.

J
R9-6 YIELD TO PEDS SIGN
N.T.S.

I
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6"
DIA.
6"
DIA.

Pakpour Consulting Group, Inc.
6601 Owens Drive, Suite 230
Pleasanton, CA 94588
925.224.7717 Fax 925.224.7726
www.pcgengr.com
SHEET OF 17 REVISIONS
AUGUST 2024

IMPROVEMENT PLANS FOR
STEVENS CREEK BOULEVARD CLASS IV BIKEWAY PHASE 2A
File: CALIFORNIA
Scale:

Proj. Engr:

Checked:

Drawn:

Designed:

Date: 8/13/2024
WL
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CITY APPR.

CUPERTINO

CITY OF

CUPERTINO
KAW/JP DE ANZA BOULEVARD TO WOLFE ROAD/MILLER AVENUE 8
D-6

BUS STOP/BIKE PATH CROSS SECTIONS

A-A CROSS SECTION
STA 13+80 TO 14+60 AND STA 14+90 TO STA 15+81

INLINE BUS STOP/BIKE PATH
N.T.S.

B-B CROSS SECTION
STA 14+70 TO STA 14+80

INLINE BUS STOP/BIKE PATH
N.T.S.

C-C CROSS SECTION
STA 14+60 TO STA 14+70 AND STA 14+80 TO 14+90

INLINE BUS STOP/BIKE PATH
N.T.S. ABC

BUS PAD

CONTRACTION JOINT

BUS PAD E

EXPANSION JOINT D

MODIFIED TYPE I PEDESTRIAN

BARRICADE F

TRENCH DRAIN FRAME AND

GRATE G
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UTURN ONLY N X N 9 MATCHLINE STA 19+00 SEE BELOW LEFT MATCHLINE STA 19+00 SEE TOP RIGHT MATCHLINE STA 28+00 SEE SHEET C-2 Pakpour Consulting Group, Inc.
6601 Owens Drive, Suite 230
Pleasanton, CA 94588
925.224.7717 Fax 925.224.7726
www.pcgengr.com
SHEET OF 17 REVISIONS
AUGUST 2024

IMPROVEMENT PLANS FOR
STEVENS CREEK BOULEVARD CLASS IV BIKEWAY PHASE 2A
File: CALIFORNIA
Scale:

Proj. Engr:

Checked:

Drawn:

Designed:

Date: 8/13/2024
WL
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CITY APPR.

CUPERTINO

CITY OF

CUPERTINO

KAW/JP DE ANZA BOULEVARD TO WOLFE ROAD/MILLER AVENUE
CONSTRUCTION PLAN STA 10+00 TO STA 28+00
C-1
40 0 40 80

SCALE IN FEET
1"=40'

GRAPHIC SCALE

MATCHLINE

SEE DETAIL A
SHEET D-4
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N N X
10 MATCHLINE STA 38+00 SEE BELOW LEFT MATCHLINE STA 38+00 SEE TOP RIGHT MATCHLINE STA 48+00 SEE SHEET C-3 CONSTRUCTION PLAN STA 28+00 TO STA 48+00 MATCHLINE STA 28+00 SEE SHEET C-1 Pakpour Consulting Group, Inc.
6601 Owens Drive, Suite 230
Pleasanton, CA 94588
925.224.7717 Fax 925.224.7726
www.pcgengr.com
SHEET OF 17 REVISIONS
AUGUST 2024

IMPROVEMENT PLANS FOR
STEVENS CREEK BOULEVARD CLASS IV BIKEWAY PHASE 2A
File: CALIFORNIA
Scale:

Proj. Engr:

Checked:

Drawn:

Designed:

Date: 8/13/2024
WL
WL
WL
CITY APPR.

CUPERTINO

CITY OF

CUPERTINO
KAW/JP DE ANZA BOULEVARD TO WOLFE ROAD/MILLER AVENUE C-2 40 0 40 80

SCALE IN FEET
1"=40'

GRAPHIC SCALE
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N X N
11 MATCHLINE STA 57+00 SEE BELOW LEFT MATCHLINE STA 57+00 SEE TOP RIGHT MATCHLINE STA 48+00 SEE SHEET C-2 Pakpour Consulting Group, Inc.
6601 Owens Drive, Suite 230
Pleasanton, CA 94588
925.224.7717 Fax 925.224.7726
www.pcgengr.com
SHEET OF 17 REVISIONS
AUGUST 2024

IMPROVEMENT PLANS FOR
STEVENS CREEK BOULEVARD CLASS IV BIKEWAY PHASE 2A
File: CALIFORNIA
Scale:

Proj. Engr:

Checked:

Drawn:

Designed:

Date: 8/13/2024
WL
WL
WL
CITY APPR.

CUPERTINO

CITY OF

CUPERTINO

KAW/JP DE ANZA BOULEVARD TO WOLFE ROAD/MILLER AVENUE
CONSTRUCTION PLAN STA 48+00 TO STA 65+80
C-3
40 0 40 80

SCALE IN FEET
1"=40'

GRAPHIC SCALE

MATCHLINE

SEE DETAIL B
SHEET D-4
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GENERAL NOTES:

LEGEND

DETAIL 'A'
4-SECTION SIGNAL FACE

DETAIL 'B'
3-SECTION BICYCLE

SIGNAL FACE

DETAIL 'C'

MAST ARM POLE LAYOUT

DETAIL 'D'
15TS POLE LAYOUT
YIELD

RIGHT TURN

ON FLASHING
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STEVENS CREEK

BOULEVARD N WOLFE ROAD MILLER AVENUE
CONSTRUCTION NOTES:

DETAIL 'A'

EXISTING PHASE DIAGRAM

PROPOSED PHASE DIAGRAM
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CONDUCTOR SCHEDULE

EXISTING SIGNAL EQUIPMENT MILLER AVENUE N WOLFE ROAD

STEVENS CREEK

BOULEVARD

POLE & EQUIPMENT SCHEDULE
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
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STEVENS CREEK

BOULEVARD DE ANZA BOULEVARD
CONSTRUCTION NOTES:

EXISTING PHASE DIAGRAM

PROPOSED PHASE DIAGRAM
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#23
#20
#24
(120' - R/W)

CONDUCTOR SCHEDULE

EXISTING SIGNAL EQUIPMENT DE ANZA BOULEVARD

STEVENS
CREEK

BOULEVARD
DEMOLITION NOTES:

POLE & EQUIPMENT SCHEDULE
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
S
E
N
W
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B-1 17
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PUBLIC WORKS DEPARTMENT • 10300 TORRE AVENUE • CUPERTINO, CALIFORNIA 95014

PROJECT MANUAL

FOR THE
CAPITAL IMPROVEMENT PROGRAMS’
Stevens Creek Boulevard Class IV
Bike Lane Phase 2A
Federal-Aid Project No. CML-5318 (036)
CIP Project No. 2022-15
Bid Dates:

Bid Package posted: Tuesday, November 5, 2024
RFI’s due date: Wednesday, November 20, 2024, 2pm
Addendum publication date: Wednesday, November 27, 2024 Submittals due: Thursday, December 5, 2024, 2pm
APPROVED BY:
_______________________________________
Chad Mosley, P.E.

Director of Public Works & City Engineer
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Stevens Creek Boulevard Class IV Bikeway Phase 2A PROJECT INFORMATION CIP Project #2022-15 Page 2
PROJECT INFORMATION:

LOCATION MAP: City of Cupertino – Stevens Creek Boulevard Class IV Bikeway Phase 2A Budget Unit:
420-99-036
NWS:

ST 059
CIP project:
2022-15
APN:

Public ROW
Location: Stevens Creek Boulevard from De Anza Boulevard to North Wolfe Road/Miller Avenue Project Overview: The project will convert the existing Class II-B buffered bike lanes to Class IV separate bike lane, modify existing traffic signals with exclusive bicycle signals, and construct a shared cycle track bus stop.

PROJECT DIRECTORY
City Representative: City of Cupertino
*Use this Address for Stop Notices
Jason Wong, P.E. - Senior Civil Engineer
City of Cupertino - Public Works
10300 Torre Avenue
Cupertino, CA 95014
PH: (408) 777-3215
Email: [email protected]
Engineer of Record:

Pakpour Consulting Group
Joubin Pakpour, P.E.
6601 Owens Drive, Suite 230
Pleasanton, CA 94588
PH: 925-224-7717
Email: [email protected]
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Stevens Creek Boulevard Class IV Bikeway Phase 2A TABLE OF CONTENTS CIP Project #2022-15 Page i

TABLE OF CONTENTS
Notice Inviting Bids ....................................................................................................................... 4 Instructions to Bidders ................................................................................................................. 7 Bid Proposal................................................................................................................................. 14 Bid Schedule................................................................................................................................ 16 Subcontractor List....................................................................................................................... 18 Equal Employment Opportunity Certification .......................................................................... 19 Public Contract Code Statement................................................................................................ 20 Debarment and Suspension Certification................................................................................. 22 Subcontractor Debarment and Suspension Certification ....................................................... 23 Non-Lobbying Certification For Federal-Aid Contracts........................................................... 24 Disclosure of Lobbying Activities.............................................................................................. 25 Non-collusion Declaration.......................................................................................................... 27 Bid Bond....................................................................................................................................... 28 Bidder’s Questionnaire ............................................................................................................... 30 Contract........................................................................................................................................ 33 Payment Bond.............................................................................................................................. 38 Performance Bond ...................................................................................................................... 40 General Conditions ..................................................................................................................... 42 Article 1 - Definitions................................................................................................................... 42 Definitions.................................................................................................................................. 42 Article 2 - Roles and Responsibilities ....................................................................................... 45

2.1 City ................................................................................................................................ 45

2.2 Contractor...................................................................................................................... 45

2.3 Subcontractors .............................................................................................................. 48

2.4 Coordination of Work..................................................................................................... 49

2.5 Submittals...................................................................................................................... 49

2.6 Shop Drawings .............................................................................................................. 50 Article 3 - Contract Documents.................................................................................................. 51

3.1 Interpretation of Contract Documents ........................................................................... 51

3.2 Order of Precedence..................................................................................................... 51

3.3 Caltrans Standard Specifications .................................................................................. 52

3.4 For Reference Only ....................................................................................................... 52

3.5 Current Versions ........................................................................................................... 53

3.6 Conformed Copies ........................................................................................................ 53 Article 4 - Bonds, Indemnity, and Insurance ............................................................................ 53

4.1 Payment and Performance Bonds ................................................................................ 53

4.2 Indemnity....................................................................................................................... 53

4.3 Insurance....................................................................................................................... 54 Article 5 - Contract Time ............................................................................................................. 56

5.1 Time is of the Essence.................................................................................................. 56

5.2 Schedule Requirements ................................................................................................ 56

5.3 Delay and Extensions of Contract Time........................................................................ 58

5.4 Liquidated Damages ..................................................................................................... 61 Article 6 - Contract Modification ................................................................................................ 62

6.1 Contract Modification..................................................................................................... 62

6.2 Contractor Change Order Requests ............................................................................. 63

6.3 Adjustments to Contract Price....................................................................................... 64

6.4 Unilateral Change Order ............................................................................................... 64

6.5 Non-Compliance Deemed Waiver................................................................................. 65 Article 7 - General Construction Provisions............................................................................. 65

7.1 Permits, Fees, Business License, and Taxes ............................................................... 65

7.2 Temporary Facilities ...................................................................................................... 65 148
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Stevens Creek Boulevard Class IV Bikeway Phase 2A TABLE OF CONTENTS CIP Project #2022-15 Page ii

7.3 Noninterference and Site Management ........................................................................ 65

7.4 Signs.............................................................................................................................. 66

7.5 Project Site and Nearby Property Protections. ............................................................. 66

7.6 Materials and Equipment............................................................................................... 67

7.7 Substitutions.................................................................................................................. 68

7.8 Testing and Inspection .................................................................................................. 69

7.9 Project Site Conditions and Maintenance ..................................................................... 70

7.10 Instructions and Manuals .............................................................................................. 71

7.11 As-built Drawings .......................................................................................................... 71

7.12 Existing Utilities ............................................................................................................. 72

7.13 Notice of Excavation...................................................................................................... 72

7.14 Trenching and Excavations of Four Feet or More......................................................... 72

7.15 Trenching of Five Feet or More..................................................................................... 73

7.16 New Utility Connections ................................................................................................ 73

7.17 Lines and Grades. ......................................................................................................... 73

7.18 Historic or Archeological Items...................................................................................... 73

7.19 Environmental Control................................................................................................... 74

7.20 Noise Control................................................................................................................. 74

7.21 Mined Materials. ............................................................................................................ 74 Article 8 - Payment ...................................................................................................................... 74

8.1 Schedule of Values ....................................................................................................... 74

8.2 Progress Payments ....................................................................................................... 75

8.3 Adjustment of Payment Application .............................................................................. 75

8.4 Early Occupancy. .......................................................................................................... 76

8.5 Retention ....................................................................................................................... 76

8.6 Payment to Subcontractors and Suppliers.................................................................... 77

8.7 Final Payment ............................................................................................................... 77

8.8 Release of Claims ......................................................................................................... 77

8.9 Warranty of Title ............................................................................................................ 77 Article 9 - Labor Provisions........................................................................................................ 77

9.1 Discrimination Prohibited............................................................................................... 77

9.2 Labor Code Requirements ............................................................................................ 78

9.3 Prevailing Wages .......................................................................................................... 78

9.4 Payroll Records ............................................................................................................. 78

9.5 Labor Compliance ......................................................................................................... 79 Article 10 - Safety Provisions..................................................................................................... 79

10.1 Safety Precautions and Programs ................................................................................ 79

10.2 Hazardous Materials ..................................................................................................... 80

10.3 Material Safety .............................................................................................................. 80

10.4 Hazardous Condition..................................................................................................... 80

10.5 Emergencies ................................................................................................................. 80 Article 11 - Completion and Warranty Provisions.................................................................... 80

11.1 Final Completion ........................................................................................................... 80

11.2 Warranty ........................................................................................................................ 81

11.3 Use Prior to Final Completion ....................................................................................... 82

11.4 Substantial Completion ................................................................................................. 83 Article 12 - Dispute Resolution .................................................................................................. 83

12.1 Claims............................................................................................................................ 83

12.2 Claims Submission........................................................................................................ 83

12.3 City’s Response ............................................................................................................ 85

12.4 Meet and Confer............................................................................................................ 85

12.5 Mediation and Government Code Claims ..................................................................... 86

12.6 Tort Claims .................................................................................................................... 86

12.7 Arbitration ...................................................................................................................... 86

12.8 Burden of Proof and Limitations.................................................................................... 86

12.9 Legal Proceedings......................................................................................................... 87 149
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12.10 Other Disputes .............................................................................................................. 87 Article 13 - Suspension and Termination.................................................................................. 87

13.1 Suspension for Cause................................................................................................... 87

13.2 Suspension for Convenience ........................................................................................ 88

13.3 Termination for Default.................................................................................................. 88

13.4 Termination for Convenience ........................................................................................ 89

13.5 Actions Upon Termination for Default or Convenience................................................. 90 Article 14 - Miscellaneous Provisions ....................................................................................... 91

14.1 Assignment of Unfair Business Practice Claims ........................................................... 91

14.2 Provisions Deemed Inserted ......................................................................................... 91

14.3 Waiver ........................................................................................................................... 91

14.4 Titles, Headings, and Groupings................................................................................... 91

14.5 Statutory and Regulatory References ........................................................................... 91

14.6 Survival.......................................................................................................................... 91 Special Conditions ...................................................................................................................... 92 Attachment A – Federal Bidding Requirements..................................................................... 102 Attachment B – Federal Contract Requirements ................................................................... 111 Attachment C – Kimley Horn Potholing Report...................................................................... 147 Technical Specifications........................................................................................................... 168 150
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Notice Inviting Bids

1. Bid Submission. City of Cupertino (“City”) will accept electronically submitted bids for its Stevens Creek Boulevard Class IV Bikeway Phase 2A Project, Federal-Aid Project No. CML-5318 (036), CIP Project No. 2022-15 (“Project”), by or before Tuesday, December 5, 2024, at 2:00 p.m., via electronic submission to the City’s “Business Opportunities” online portal in the manner set forth in Section 1 of the Instructions to Bidders, at which time the bids will be opened by the City. City will open all Bidder’s bid on December 5, 2024 at 2:00 p.m. Bid opening will be available for public viewing at City Hall, 10300 Torres Avenue Cupertino, CA 95014. City reserves the unfettered right, acting in its sole discretion, to waive or to decline to waive any immaterial bid irregularities; to accept or reject any or all bids; to cancel or reschedule the bid; to postpone or abandon the Project entirely; or to perform all or part of the Work with its own forces.

2. Project Information.

2.1 Location and Description. The Project is located at Stevens Creek Boulevard between De Anza Boulevard and N. Wolfe Road/Miller Avenue and is described as follows: The project will convert the existing Class II-B buffered bike lanes to Class IV separated bikeway by installing physical separators/curbs between the bike lane and vehicular traffic, modifying existing traffic signals with exclusive bicycle signals, and constructing a shared cycle track bus stop.

2.2 Time for Final Completion. The Project must be fully completed within 60 working days from the start date set forth in the Notice to Proceed. City anticipates that the Work will begin on or about March 2025, but the anticipated start date is provided solely for convenience and is neither certain nor binding. Contractor shall procure long lead time materials including but not limited to signal poles, signal mast arms, and precast concrete blocks as soon as construction contract is awarded. Notice to Proceed will be coordinated to ensure materials will arrive in a timely manner for the work to be completed within the allowed working days.

2.3 Estimated Cost. The estimated construction cost is $1,500,000.

2.4 Disadvantaged Business Enterprises (DBE). The DBE contract goal for this project is 17%.

3. License and Registration Requirements.

3.1 License. This Project requires a valid California contractor’s license for the following classification(s): Class A – General Engineering Contractor, C-10 Electrical Contractor for all traffic signal work.

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

4. Contract Documents. The plans, specifications, bid forms and contract documents for the Project, and any addenda thereto (“Contract Documents”) may be downloaded from City’s Business Opportunities website located at:
https://apps.cupertino.org/bidmanagement/index.aspx.. A printed copy of the Contract Documents is not available.
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5. Bid Security. The Bid Proposal must be accompanied by bid security of ten percent of the maximum bid amount, in the form of a cashier’s or certified check made payable to City, or a bid bond executed by a surety licensed to do business in the State of California on the Bid Bond form included with the Contract Documents, in the manner set forth in Section 4 of the Instructions to Bidders. The bid security must guarantee that within ten days after City issues the Notice of Potential Award, the successful bidder will execute the Contract and submit the payment and performance bonds, insurance certificates and endorsements, valid Certificates of Reported Compliance as required under the California Air Resources Board’s In-Use Off-Road Diesel-Fueled Fleets Regulation (13 CCR § 2449 et seq.) (“OffRoad Regulation”), if applicable, and any other submittals required by the Contract Documents and as specified in the Notice of Potential Award.

6. Prevailing Wage Requirements.

6.1 General. Pursuant to California Labor Code § 1720 et seq., this Project is subject to the prevailing wage requirements applicable to the locality in which the Work is to be performed for each craft, classification or type of worker needed to perform the Work, including employer payments for health and welfare, pension, vacation, apprenticeship and similar purposes.

6.2 Rates. The prevailing rates are on file with the City and are available online at http://www.dir.ca.gov/DLSR. Each Contractor and Subcontractor must pay no less than the specified rates to all workers employed to work on the Project. The schedule of per diem wages is based upon a working day of eight hours. The rate for holiday and overtime work must be at least time and one-half. This Project is funded in part by federal funds and therefore subject to both State and Federal hourly minimum rates for wages and fringe benefits and when the two rates differ for similar kinds of labor, the Contractor shall not pay less than the higher rate.

Federal wage rates can be found on the Department of Labor home page at https://sam.gov/content/wage-determinations.

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

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

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

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

10. Instructions to Bidders. All bidders should carefully review the Instructions to Bidders for more detailed information before submitting a Bid Proposal. The definitions provided in Article 1 of the General Conditions apply to all of the Contract Documents, as defined therein, including this Notice Inviting Bids.
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11. Caltrans Administered Project. This Project is funded in whole or in part by federal funds administered under Caltrans’ Local Assistance Procedures Manual (“LAPM”).

11.1 Federal Bidding Requirements. LAPM bidding requirements and forms are provided in Attachment A - Federal Bidding Requirements. Each bidder must comply with the requirements set forth in Attachment A, including completion and submission of required federal forms with its Bid Proposal, as further specified in Attachment A.

11.2 Title VI Non-Discrimination Assurances. The City, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. § 2000d et seq.) and applicable regulations, including 49 CFR Part 21, 28 CFR §

50.3, and any other applicable statutory or regulatory authorities identified in the Standard Title VI/Non-Discrimination Assurances, hereby notifies all bidders that it will affirmatively ensure that in any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award. Any contract entered into pursuant to this advertisement will be subject to Appendix E of the Title VI Assurances, a copy of which is included in Attachment B - Federal Contract Requirements.

By: __ __ Date: __10/28/2024___________
Kirsten Squarcia, City Clerk
Publication Date: 11/8/2024 & 11/15/2024

END OF NOTICE INVITING BIDS
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Instructions to Bidders
Each Bid Proposal submitted to City of Cupertino (“City”) for its Stevens Creek Boulevard Class IV Bike Lane Phase 2A Project, Federal-Aid Project No. CML-5318 (036), CIP Project No. 2022- 15 (“Project”) must be submitted in accordance with the following instructions and requirements:

1. Bid Submission.

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

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

Each bidder should familiarize itself with the City’s “Business Opportunities” portal before the bid deadline. Electronic submission may take more time than anticipated. Each bidder should plan accordingly and afford itself ample time to upload its bid. Bids that are in the process of uploading but are not completely uploaded by the bid deadline will be automatically rejected by the portal. The portal will not allow submission after the bid deadline.

1.3 Bid Opening. City will open all Bidder’s bid on December 5, 2024 at 2:00 p.m. Bid opening will be available for public viewing at City Hall, 10300 Torres Avenue Cupertino, CA 95014.

1.4 Bid Posting. The amount of each bid and such other relevant information as the City deems appropriate, together with the name of each bidder, shall be posted on the City website https://apps.cupertino.org/bidmanagement/index.aspx on the first working day following a period of 48 hours after the bid opening and remain open to public inspection for a period of not less than fifteen (15) calendar days after the bid opening.

1.5 DIR Registration. Subject to limited legal exceptions for joint venture bids and federally-funded projects, City may not accept a Bid Proposal from a bidder without proof that the bidder is registered with the DIR to perform public work under Labor Code § 1725.5. If City is unable to confirm that the bidder is currently registered with the DIR, City may disqualify the bidder without opening its bid. (Labor Code §§ 1725.5 and 1771.1(a).)
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1.6 Complete Bid Package Submittal Checklist. This checklist identifies the documents that MUST be submitted as part of the bid package to be considered responsive.
____ 1. Bid Proposal
____ 2. Bid Schedule
____ 3. Subcontractor List
____ 4. Equal Employment Opportunity Certification
____ 5. Public Contract Code Statement
____ 6. Debarment and Suspension Certification (if there are exceptions) ____ 7. Disclosure of Lobbying Activities (if applicable) ____ 8. Non-collusion Declaration
____ 9. Bid Bond
____ 10. Exhibit 12-B: Bidder’s List of Subcontractor (DBE and Non-DBE) The following forms below are required to be submitted no later than 4:00 p.m. on the 5th calendar day after the bid opening. Failure to submit the required forms on time may result in the City deeming the bid package non-responsive. Forms shall be submitted electronically to [email protected].
____ 1. Subcontractor Debarment and Suspension Certification ____ 2. Exhibit 15-G: Construction Contract DBE Commitment ____ 3. Exhibit 15-H: Contractor Good Faith Efforts (if applicable) ____ 4. LAPM 9-I: DLA DBE Confirmation

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

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

4. Bid Security. Each bid must be guaranteed by bid security of ten percent of the maximum bid amount, in the form of a cashier’s or certified check made payable to the City, or bid bond using the form included in the Contract Documents and executed by a surety licensed to do business in the State of California.
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4.1 Form of Security and Submission. In addition to submitting a PDF copy of the bid security, the wet-inked original bid bond, cashier’s or certified check, must be sent to the City via U.S. Mail or a reliable overnight delivery service in a sealed envelope addressed to City of Cupertino, Office of the City Clerk, 10300 Torre Avenue, Cupertino, CA 95014 and clearly labeled with the bidder’s legal name and address, the Project title, and date and time of the bid deadline. The envelope containing the original form of bid security must be postmarked or otherwise dated to show that it was submitted to the United States Postal Service or overnight delivery service by or before the date of the bid deadline.

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

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

6. Pre-Bid Investigation.

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

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

6.3 Project Site. Questions regarding the availability of soil test data, water table elevations, and the like should be submitted to the City in writing, as specified in Section 5, above. Any subsurface exploration at the Project site must be done at 156
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the bidder’s expense, but only with prior written authorization from City. All soil data and analyses available for inspection or provided in the Contract Documents apply only to the test hole locations. Any water table elevation indicated by a soil test report existed on the date the test hole was drilled. The bidder is responsible for determining and allowing for any differing soil or water table conditions during construction. Because groundwater levels may fluctuate, difference(s) in elevation between ground water shown in soil boring logs and ground water actually encountered during construction will not be considered changed Project site conditions. Actual locations and depths must be determined by bidder’s field investigation. The bidder may request access to underlying or background information on the Project site in City’s possession that is necessary for the bidder to form its own conclusions, including, if available, record drawings or other documents indicating the location of subsurface lines, utilities, or other structures.

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

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

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

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

9. Brand Designations and “Or Equal” Substitutions. Any specification designating a material, product, thing, or service by specific brand or trade name, followed by the words “or equal,” is intended only to indicate quality and type of item desired, and bidders may request use of any equal material, product, thing, or service. All data substantiating the proposed substitute as an equal item must be submitted with the written request for substitution. A request for substitution must be submitted within 35 days after Notice of Potential Award unless otherwise provided in the Contract Documents. This provision does not apply to materials, products, things, or services that may lawfully be designated by a specific brand or trade name under Public Contract Code § 3400(c).

10. Bid Protest. Any bid protest against another bidder must be submitted in writing and received by City at 10300 Torre Avenue Cupertino, CA 95114 or sent via email at [email protected] before 5:00 p.m. no later than two Working Days following the date upon which the City posts the bid results (“Bid Protest Deadline”) and must comply with the following requirements:

10.1 General. Only a bidder who has actually submitted a Bid Proposal is eligible to submit a bid protest against another bidder. Subcontractors are not eligible to submit bid protests. A bidder may not rely on the bid protest submitted by another bidder, but must timely pursue its own protest. For purposes of this Section 10, a “Working Day” means a day that City is open for normal business, and excludes 157
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weekends and holidays observed by City. Pursuant to Public Contract Code § 4104, inadvertent omission of a Subcontractor’s DIR registration number on the Subcontractor List form is not grounds for a bid protest, provided it is corrected within 24 hours of the bid opening or as otherwise provided under Labor Code § 1771.1(b).

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

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

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

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

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

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

11. Reservation of Rights. City reserves the unfettered right, acting in its sole discretion, to waive or to decline to waive any immaterial bid irregularities; to accept or reject any or all bids; to cancel or reschedule the bid; to postpone or abandon the Project entirely; or to perform all or part of the Work with its own forces. The Contract will be awarded, if at all, within 60 days after opening of bids or as otherwise specified in the Special Conditions, to the responsible bidder that submitted the lowest responsive bid. Any planned start date for the Project represents the City’s expectations at the time the Notice Inviting Bids was first 158
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issued. City is not bound to issue a Notice to Proceed by or before such planned start date, and it reserves the right to issue the Notice to Proceed when the City determines, in its sole discretion, the appropriate time for commencing the Work. The City expressly disclaims responsibility for any assumptions a bidder might draw from the presence or absence of information provided by the City in any form. Each bidder is solely responsible for its costs to prepare and submit a bid, including site investigation costs.

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

13. License(s). The successful bidder and its Subcontractor(s) must possess the California contractor’s license(s) in the classification(s) required by law to perform the Work. The successful bidder must also obtain a City business license within 30 days following City’s issuance of the Notice of Potential Award. Subcontractors must also obtain a City business license before performing any Work.

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

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

16. In-Use Off-Road Diesel-Fueled Fleets. If the Project involves the use of vehicles subject to the California Air Resources Board’s In-Use Off-Road Diesel-Fueled Fleets Regulation (13 CCR § 2449 et seq.) (“Off-Road Regulation”), then within ten calendar days following City’s issuance of the Notice of Potential Award to the successful bidder, the bidder must submit to City valid Certificates of Reported Compliance for its fleet and its listed Subcontractors, if applicable, in accordance with the Off-Road Regulation, unless exempt under the Off-Road Regulation.

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

17.1 Incorrect Totals. In the event a computational error for any bid item (base bid or alternate) results in an incorrect extended total for that item, the submitted base bid or bid alternate total will be adjusted to reflect the corrected amount as the product of the estimated quantity and the unit cost. In the event of a discrepancy between the actual total of the itemized or unit prices shown on the Bid Schedule for the base bid, and the amount entered as the base bid on the Bid Proposal form, the actual total of the itemized or unit prices shown on the Bid Schedule for the base bid will be deemed the base bid price. Likewise, in the event of a discrepancy between the actual total of the itemized or unit prices shown on the Bid Schedule for any bid alternate, and the amount entered for the alternate on the Bid Proposal form, the actual total of the itemized prices shown on the Bid Schedule for that alternate will be deemed the alternate price. Nothing in this provision is intended to prevent a bidder from requesting to withdraw its bid for material error under Public Contract Code § 5100 et seq.
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17.2 Estimated Quantities. Unless identified as a “Final Pay Quantity,” the quantities shown on the Bid Schedule are estimated and the actual quantities required to perform the Work may be greater or less than the estimated amount. The Contract Price will be adjusted to reflect the actual quantities required for the Work based on the itemized or unit prices provided in the Bid Schedule, with no allowance for anticipated profit for quantities that are deleted or decreased, and no increase in the unit price, and without regard to the percentage increase or decrease of the estimated quantity and the actual quantity.

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

19. Federal Subcontracting Requirements. This Project is funded in whole or in part by the federal government. Contractor must comply with all applicable federal requirements as further specified in the Contract Documents, and when procuring Subcontractors, must take all necessary affirmative steps pursuant to 2 CFR § 200.321(b), subject to the limitations of law, to ensure that minority businesses, women’s business enterprises, and labor surplus area firms are used when possible. Affirmative steps must include:

19.1 Solicitation Lists. Placing qualified small and minority businesses and women’s business enterprises on solicitation lists.

19.2 Soliciting Potential Sources. Assuring that small and minority businesses and women’s business enterprises are solicited whenever they are potential sources.

19.3 Maximizing Participation. Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses and women’s business enterprises.

19.4 Establishing Delivery Schedules. Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women’s business enterprises.

19.5 Organizational Assistance. Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce.

20. For Reference Only. The following documents are provided “For Reference Only,” as defined in Section 3.4 of the General Conditions:

Attachment C: Exaro Technologies Corporation Kimley Horn Potholing Report dated 12/21/2022, 1/25/2023, and 4/3/2023

END OF INSTRUCTIONS TO BIDDERS
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Bid Proposal
Stevens Creek Boulevard Class IV Bike Lane Phase 2A Project Federal-Aid Project No. CML-5318 (036), CIP Project No. 2022-15 ______________________________________________________ (“Bidder”) hereby submits this Bid Proposal to City of Cupertino (“City”) for the above-referenced project (“Project”) in response to the Notice Inviting Bids and in accordance with the Contract Documents referenced in the Notice.

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

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

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

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

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

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

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

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

3.5 Nondiscrimination. In preparing this bid, the Bidder has not engaged in discrimination against any prospective or present employee or Subcontractor on grounds of race, color, ancestry, national origin, ethnicity, religion, sex, sexual orientation, age, disability, or marital status.

3.6 Iran Contracting Act. If the Contract Price exceeds $1,000,000, Bidder is not identified on a list created under the Iran Contracting Act, Public Contract Code § 2200 et seq. (the “Act”), as a 161
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Stevens Creek Boulevard Class IV Bikeway Phase 2A BID PROPOSAL CIP Project #2022-15 Page 15
person engaging in investment activities in Iran, as defined in the Act, or is otherwise expressly exempt under the Act.

4. Award of Contract. By signing and submitting this Bid Proposal, Bidder agrees that, if City issues the Notice of Potential Award to Bidder then within ten days following issuance of the Notice of Potential Award to Bidder, Bidder will do all of the following:

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

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

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

4.4 Certificates of Reported Compliance. Submit to City valid Certificates of Reported Compliance for its fleet and its listed Subcontractors, if applicable, if the Project involves the use of vehicles subject to the Off-Road Regulation. (See Section 16 of the Instructions to Bidders.)

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

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

END OF BID PROPOSAL
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Stevens Creek Boulevard Class IV Bikeway Phase 2A BID SCHEDULE CIP Project #2022-15 Page 16
Bid Schedule
This Bid Schedule must be completed in ink and included with the sealed Bid Proposal. Pricing must be provided for each Bid Item as indicated. Items marked “(SW)” are Specialty Work that must be performed by a qualified Subcontractor. The lump sum or unit cost for each item must be inclusive of all costs, whether direct or indirect, including profit and overhead. The sum of all amounts entered in the “Extended Total Amount” column must be identical to the Base Bid price entered in Section 1 of the Bid Proposal form.

AL = Allowance CF = Cubic Feet CY = Cubic Yard EA = Each LB = Pounds LF = Linear Foot LS = Lump Sum SF = Square Feet TON = Ton (2000 lbs)

BID
ITEM
NO.

ITEM DESCRIPTION EST.

QTY. UNIT UNIT
COST

EXTENDED

TOTAL AMOUNT
1 Mobilization 1 LS $ $
2 Traffic Control 1 LS $ $
3 Temporary Water Pollution Control 1 LS $ $
4 Field Engineering and Survey Work 1 LS $ $
5 Remove Asphalt Concrete 1,900 SF $ $
6 Remove Concrete (Curb and Gutter) 210 LF $ $
7 Remove Concrete (Bus pad) 2,100 SF $ $
8 Remove Concrete (Sidewalk) 710 SF $ $
9 Hot Mix Asphalt (Type A) 30 TONS $ $
10 Concrete Bus Pad 660 SF $ $
11 Concrete Curb 515 LF $ $
12 Concrete Bike Path 1,680 SF $ $
13 Concrete Sidewalk/Pedestrian Platform 2,115 SF $ $
14 Truncated Domes 330 SF $ $
15 Trench Drain Frame and Grate 1 LS $ $
16 Precast Concrete Block (8' long) 333 EA $ $
17 Precast Concrete End Block (8' long) 77 EA $ $
18 4" White Buffer Stripe 40 LF $ $
19 12" White Thermoplastic Traffic Stripe 170 LF $ $
20 24" White Thermoplastic Traffic Stripe 700 LF $ $
21 Remove (E) Pavement Marking/Striping 1 LS $ $
22 Detail 37B 120 LF $ $
23 Detail 38 300 LF $ $
24 Detail 39 3,200 LF $ $
25 Detail 39A 2,800 LF $ $
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Stevens Creek Boulevard Class IV Bikeway Phase 2A BID SCHEDULE CIP Project #2022-15 Page 17
BID
ITEM
NO.

ITEM DESCRIPTION EST.

QTY. UNIT UNIT
COST

EXTENDED

TOTAL AMOUNT
26 Pavement Markings 850 SF $ $
27 Green Pavement Markings 12,320 SF $ $
28 Furnish and Install Sign on New Pole 8 EA $ $
29 Furnish and Install Sign on Existing Pole 5 EA $ $
30 Furnish and Install Flexible Post 3 EA $ $
31 Traffic Signal and Lighting System (Stevens
Creek Boulevard/Wolfe Road) 1 LS $ $
32 Traffic Signal and Lighting System (Stevens
Creek Boulevard/De Anza Boulevard) 1 LS $ $
TOTAL $
TOTAL BASE BID: Items 1 through 32 inclusive: $_____________________________________ Note: The amount entered as the “Total Base Bid” should be identical to the Base Bid amount entered in Section 1 of the Bid Proposal form.

BIDDER NAME: ________________________________________________________________

END OF BID SCHEDULE
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Stevens Creek Boulevard Class IV Bikeway Phase 2A SUBCONTRACTOR LIST CIP Project #2022-15 Page 18
Subcontractor List
For each Subcontractor that will perform a portion of the Work in an amount in excess of one-half of 1% of the Bidder’s total Base Bid,1 the bidder must list a description of the Work, the name of the Subcontractor, its California contractor license number, the location of its place of business, its DIR registration number, and the portion of the Work that the Subcontractor is performing based on a percentage of the Base Bid price.

DESCRIPTION

OF WORK

SUBCONTRACTOR
NAME

CALIFORNIA

CONTRACTOR
LICENSE NO.

LOCATION OF

BUSINESS
DIR REG. NO. PERCENT
OF
WORK

END OF SUBCONTRACTOR LIST
1 For street or highway construction, this requirement applies to any subcontract of $10,000 or more. 165
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Stevens Creek Boulevard Class IV Bikeway Phase 2A EQUAL EMPLOYMENT OPPORTUNITY CERT CIP Project #2022-15 Page 19
Equal Employment Opportunity Certification
The bidder_________________________________________________________________, proposed subcontractor _______________________________________________, hereby certifies that he has ___ , has not ___ , participated in a previous contract or subcontract subject to the equal opportunity clauses, as required by Executive Orders 10925, 11114, or 11246, and that, where required, he has filed with the Joint Reporting Committee, the Director of the Office of Federal Contract Compliance, a Federal Government contracting or administering agency, or the former President's Committee on Equal Employment Opportunity, all reports due under the applicable filling requirements.

Note: The above certification is required by the Equal Employment Opportunity Regulations of the Secretary of Labor (41 CFR 60-1.7(b) (1)), and must be submitted by bidders and proposed subcontractors only in connection with contracts and subcontracts which are subject to the equal opportunity clause. Contracts and subcontracts which are exempt from the equal opportunity clause are set forth in 41 CFR 60-1.5. (Generally only contracts or subcontracts of $10,000 or under are exempt.) Currently, Standard Form 100 (EEO-1) is the only report required by the Executive Orders or their implementing regulations.

Proposed prime contractors and subcontractors who have participated in a previous contract or subcontract subject to the Executive Orders and have not filed the required reports should note that 41 CFR 60-1.7(b) (1) prevents the award of contracts and subcontracts unless such contractor submits a report covering the delinquent period or such other period specified by the Federal Highway Administration or by the Director, Office of Federal Contract Compliance, U.S. Department of Labor.

END OF EQUAL EMPLOYMENT OPPORTUNITY CERTIFICATION
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Stevens Creek Boulevard Class IV Bikeway Phase 2A PUBLIC CONTRACT CODE STATEMENTS CIP Project #2022-15 Page 20
Public Contract Code Statement
PUBLIC CONTRACT CODE SECTION 10285.1 STATEMENT
In conformance with Public Contract Code Section 10285.1 (Chapter 376, Stats. 1985), the bidder hereby declares under penalty of perjury under the laws of the State of California that the bidder has ___ , has not ___ been convicted within the preceding three years of any offenses referred to in that section, including any charge of fraud, bribery, collusion, conspiracy, or any other act in violation of any state or Federal antitrust law in connection with the bidding upon, award of, or performance of, any public works contract, as defined in Public Contract Code Section 1101, with any public entity, as defined in Public Contract Code Section 1100, including the Regents of the University of California or the Trustees of the California State University. The term "bidder" is understood to include any partner, member, officer, director, responsible managing officer, or responsible managing employee thereof, as referred to in Section 10285.1.

Note: The bidder must place a checkmark after "has" or "has not" in one of the blank spaces provided. The above Statement is part of the Proposal. Signing this Proposal on the signature portion thereof shall also constitute signature of this Statement. Bidders are cautioned that making a false certification may subject the certifier to criminal prosecution.

PUBLIC CONTRACT CODE SECTION 10162 QUESTIONNAIRE
In conformance with Public Contract Code Section 10162, the Bidder shall complete, under penalty of perjury, the following questionnaire:

Has the bidder, any officer of the bidder, or any employee of the bidder who has a proprietary interest in the bidder, ever been disqualified, removed, or otherwise prevented from bidding on, or completing a federal, state, or local government project because of a violation of law or a safety regulation? Yes _____ No _____
If the answer is yes, explain the circumstances in the following space. 167
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Stevens Creek Boulevard Class IV Bikeway Phase 2A PUBLIC CONTRACT CODE STATEMENTS CIP Project #2022-15 Page 21
PUBLIC CONTRACT CODE SECTION 10285.1 STATEMENT
In conformance with Public Contract Code Section 10232, the Contractor, hereby states under penalty of perjury, that no more than one final unappealable finding of contempt of court by a federal court has been issued against the Contractor within the immediately preceding two-year period because of the Contractor's failure to comply with an order of a federal court which orders the Contractor to comply with an order of the National Labor Relations Board.

Note: The above Statement and Questionnaire are part of the Proposal. Signing this Proposal on the signature portion thereof shall also constitute signature of this Statement and Questionnaire.

Bidders are cautioned that making a false certification may subject the certifier to criminal prosecution.

END OF PUBLIC CONTRACT CODE STATEMENTS
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Stevens Creek Boulevard Class IV Bikeway Phase 2A DEBARMENT AND SUSPENSION CERTIFICATION CIP Project #2022-15 Page 22
Debarment and Suspension Certification
TITLE 49, CODE OF FEDERAL REGULATIONS, PART 29
The bidder, under penalty of perjury, certifies that, except as noted below, he/she or any other person associated therewith in the capacity of owner, partner, director, officer, manager:
• is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any Federal agency;
• has not been suspended, debarred, voluntarily excluded or determined ineligible by any Federal agency within the past 3 years;
• does not have a proposed debarment pending; and
• has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past 3 years.

If there are any exceptions to this certification, insert the exceptions in the following space.

Exceptions will not necessarily result in denial of award, but will be considered in determining bidder responsibility. For any exception noted above, indicate below to whom it applies, initiating agency, and dates of action.

Notes: Providing false information may result in criminal prosecution or administrative sanctions.

The above certification is part of the Proposal. Signing this Proposal on the signature portion thereof shall also constitute signature of this Certification.

END OF DEBARMENT AND SUSPENSION CERTIFICATION
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Stevens Creek Boulevard Class IV Bikeway Phase 2A SUBCONTRACTOR DEBARMENT AND SUSPENSION CIP Project #2022-15 Page 23
Subcontractor Debarment and Suspension Certification
TITLE 49, CODE OF FEDERAL REGULATIONS, PART 29
The Subcontractor, under penalty of perjury, certifies that, except as noted below, he/she or any other person including subcontractors associated therewith in the capacity of owner, partner, director, officer, manager:
• is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any Federal agency;
• has not been suspended, debarred, voluntarily excluded or determined ineligible by any Federal agency within the past 3 years;
• does not have a proposed debarment pending; and
• has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past 3 years.

If there are any exceptions to this certification, insert the exceptions in the following space.

Authorized Representative
Name (typed) Signature
Title Date
Name of Company Project Name
BIDDER’S SUBCONTRACTOR SHALL SUBMIT A SIGNED “SUBCONTRACTOR DEBARMENT AND SUSPENSION CERTIFICATION” NO LATER THAN 4:00 P.M. ON THE 5TH CALENDAR DAY AFTER BID OPENING FOR EACH SUBCONTRACTOR LISTED IN THE BID. FAILURE TO SUBMIT SUBCONTRACTOR CERTIFICATION MAY DEEM A BID NON-RESPONSIVE.

EMAIL FORM TO [email protected]
Exceptions will not necessarily result in denial of award but will be considered in determining bidder responsibility.

For any exception noted above, indicate below to whom it applies, initiating agency, and dates of action.

Notes: The certification of this provision is a material representation of fact upon which reliance was place.

Providing false information may result in criminal prosecution or administrative sanctions and the termination of the contract for default.

END OF SUBCONTRACTOR DEBARMENT AND SUSPENSION CERTIFICATION 170
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Stevens Creek Boulevard Class IV Bikeway Phase 2A NON-LOBBYING CERTIFICATOIN CIP Project #2022-15 Page 24
Non-Lobbying Certification For Federal-Aid Contracts
The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:

1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure of Lobbying Activities," in conformance with its instructions.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such subrecipients shall certify and disclose accordingly. 171
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Stevens Creek Boulevard Class IV Bikeway Phase 2A DISCLOSURE OF LOBBYING ACTIVITIES CIP Project #2022-15 Page 25
Disclosure of Lobbying Activities
COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVITIES PURSUANT TO 31 U.S.C. 1352

1. Type of Federal Action: 2. Status of Federal Action: 3. Report Type:
a. contract

a. bid/offer/application

a. initial
b. grant b. initial award b. material change
c. cooperative agreement c. post-award
d. loan For Material Change Only:
e. loan guarantee year _____ quarter _________
f. loan insurance date of last report __________

4. Name and Address of Reporting Entity 5. If Reporting Entity in No. 4 is Subawardee, Enter Name and Address of Prime:

Prime Subawardee
Tier_______ , if known
Congressional District, if known Congressional District, if known

6. Federal Department/Agency: 7. Federal Program Name/Description:

CFDA Number, if applicable ___________________

8. Federal Action Number, if known: 9. Award Amount, if known:

10. a. Name and Address of Lobby Entity b. Individuals Performing Services (including (If individual, last name, first name, MI) address if different from No. 10a) (last name, first name, MI)
(attach Continuation Sheet(s) if necessary)

11. Amount of Payment (check all that apply) 13. Type of Payment (check all that apply) $_____________ actual planned a. retainer
b. one-time fee

12. Form of Payment (check all that apply): c. commission a. cash d. contingent fee
b. in-kind; specify: nature______________ e deferred
value _____________ f. other, specify _________________________

14. Brief Description of Services Performed or to be performed and Date(s) of Service, including officer(s), employee(s), or member(s) contacted, for Payment Indicated in Item 11:

15. Continuation Sheet(s) attached: Yes No

16. Information requested through this form is authorized by Title 31 U.S.C. Section 1352. This disclosure of lobbying reliance was placed by the tier above when his transaction was made or entered into. This disclosure is required
pursuant to 31 U.S.C. 1352. This information will be
reported to Congress semiannually and will be available for public inspection. Any person who fails to file the required disclosure shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

Signature:________________________________________
Print Name: ______________________________________
Title:____________________________________________
Telephone No.:_____________________ Date: __________
Authorized for Local Reproduction
Federal Use Only: Standard Form - LLL
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Stevens Creek Boulevard Class IV Bikeway Phase 2A DISCLOSURE OF LOBBYING ACTIVITIES CIP Project #2022-15 Page 26

INSTRUCTIONS FOR COMPLETION OF SF-LLL,

DISCLOSURE OF LOBBYING ACTIVITIES
This disclosure form shall be completed by the reporting entity, whether subawardee or prime Federal recipient, at the initiation or receipt of covered Federal action or a material change to previous filing pursuant to title 31 U.S.C. section 1352. The filing of a form is required for such payment or agreement to make payment to lobbying entity for influencing or attempting to influence an officer or employee of any agency, a Member of Congress an officer or employee of Congress or an employee of a Member of Congress in connection with a covered Federal action. Attach a continuation sheet for additional information if the space on the form is inadequate. Complete all items that apply for both the initial filing and material change report. Refer to the implementing guidance published by the Office of Management and Budget for additional information.

1. Identify the type of covered Federal action for which lobbying activity is and/or has been secured to influence, the outcome of a covered Federal action.

2. Identify the status of the covered Federal action.

3. Identify the appropriate classification of this report. If this is a follow-up report caused by a material change to the information previously reported, enter the year and quarter in which the change occurred. Enter the date of the last, previously submitted report by this reporting entity for this covered Federal action.

4. Enter the full name, address, city, state and zip code of the reporting entity. Include Congressional District if known.

Check the appropriate classification of the reporting entity that designates if it is or expects to be a prime or subaward recipient. Identify the tier of the subawardee, e.g., the first subawardee of the prime is the first tier. Subawards include but are not limited to subcontracts, subgrants and contract awards under grants.

5. If the organization filing the report in Item 4 checks "Subawardee" then enter the full name, address, city, state and zip code of the prime Federal recipient. Include Congressional District, if known.

6. Enter the name of the Federal agency making the award or loan commitment. Include at least one organization level below agency name, if known. For example, Department of Transportation, United States Coast Guard.

7. Enter the Federal program name or description for the covered Federal action (item 1). If known, enter the full Catalog of Federal Domestic Assistance (CFDA) number for grants, cooperative agreements, loans and loan commitments.

8. Enter the most appropriate Federal identifying number available for the Federal action identification in item 1 (e.g., Request for Proposal (RFP) number, Invitation for Bid (IFB) number, grant announcement number, the contract grant. or loan award number, the application/proposal control number assigned by the Federal agency). Include prefixes, e.g., "RFP-DE-90-001."

9. For a covered Federal action where there has been an award or loan commitment by the Federal agency, enter the Federal amount of the award/loan commitments for the prime entity identified in item 4 or 5.

10. (a) Enter the full name, address, city, state and zip code of the lobbying entity engaged by the reporting entity identified in item 4 to influenced the covered Federal action.
(b) Enter the full names of the individual(s) performing services and include full address if different from 10 (a). Enter Last Name, First Name and Middle Initial (Ml).

11. Enter the amount of compensation paid or reasonably expected to be paid by the reporting entity (item 4) to the lobbying entity (item 10). Indicate whether the payment has been made (actual) or will be made (planned). Check all boxes that apply. If this is a material change report, enter the cumulative amount of payment made or planned to be made.

12. Check the appropriate box. Check all boxes that apply. If payment is made through an in-kind contribution, specify the nature and value of the in-kind payment.

13. Check the appropriate box. Check all boxes that apply. If other, specify nature.

14. Provide a specific and detailed description of the services that the lobbyist has performed or will be expected to perform and the date(s) of any services rendered. Include all preparatory and related activity not just time spent in actual contact with Federal officials. Identify the Federal officer(s) or employee(s) contacted or the officer(s) employee(s) or Member(s) of Congress that were contacted.

15. Check whether or not a continuation sheet(s) is attached.

16. The certifying official shall sign and date the form, print his/her name title and telephone number.

Public reporting burden for this collection of information is estimated to average 30 minutes per response, including time for reviewing instruction, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348-0046), Washington, D.C. 20503. SF-LLL-Instructions Rev. 06-04-90«ENDIF» 173
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Stevens Creek Boulevard Class IV Bikeway Phase 2A NON-COLLUSION DECLARATION CIP Project #2022-15 Page 27
Non-collusion Declaration

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

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

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

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

Any person executing this declaration on behalf of a bidder that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration on behalf of the bidder.

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

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

END OF NONCOLLUSION DECLARATION
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Stevens Creek Boulevard Class IV Bikeway Phase 2A BID BOND CIP Project #2022-15 Page 28
Bid Bond
________________________________________________________ (“Bidder”) has submitted a bid, dated ___________________________, 20______ (“Bid”), to <__________________________________________> (“City”) for work on the <_______________________________________________> Project (“Project”). Under this duly executed bid bond (“Bid Bond”), Bidder as Principal and ______________________________, its surety (“Surety”), are bound to City as obligee in the penal sum of ten percent of the maximum amount of the Bid (the “Bond Sum”). Bidder and Surety bind themselves and their respective heirs, executors, administrators, successors and assigns, jointly and severally, as follows:

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

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

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

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

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

2.4 Insurance. The insurance certificate(s) and endorsement(s) required by the Contract Documents;

2.5 Certificates of Reported Compliance. Valid Certificates of Reported Compliance for its fleet and its listed Subcontractors, if applicable, in accordance with the In-Use Off-Road Diesel-Fueled Fleets Regulation (13 CCR § 2449 et seq.) (“Off-Road Regulation”), if the Project involves the use of vehicles subject to the Off-Road Regulation; and any other documents required by the Instructions to Bidders or Notice of Potential Award.

3. Enforcement. If Bidder fails to execute the Contract or to submit the bonds, insurance certificates, and valid Certificates of Reported Compliance as required by the Contract Documents, Surety guarantees that Bidder forfeits the Bond Sum to City. Any notice to Surety may be given in the manner specified in the Contract and delivered or transmitted to Surety as follows:

Attn: _____________________________________________________ Address: __________________________________________________ City/State/Zip: ______________________________________________ Phone: ___________________________________________________ Fax: ______________________________________________________ Email: ____________________________________________________

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

Surety waives the provisions of Civil Code §§ 2819 and 2845. 175
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Stevens Creek Boulevard Class IV Bikeway Phase 2A BID BOND CIP Project #2022-15 Page 29
This Bid Bond is entered into and effective on ___________________, 20_____.

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

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

END OF BID BOND
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Bidder’s Questionnaire
STEVENS CREEK BOULEVARD CLASS IV BIKE LANE PHASE 2A PROJECT Within 48 hours following a request by City, a bidder must submit to City a completed, signed Bidder’s Questionnaire using this form and all required attachments, including clearly labeled additional sheets as needed. City may request the Questionnaire from one or more of the apparent low bidders following the bid opening, and may use the completed Questionnaire as part of its investigation to evaluate a bidder’s qualifications for this Project. The Questionnaire must be filled out completely, accurately, and legibly. Any errors, omissions, or misrepresentations in completion of the Questionnaire may be grounds for rejection of the bid or termination of a Contract awarded pursuant to the bid.

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

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

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

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

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

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

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

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

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

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

6.1 Project name, location, and description;

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

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

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

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

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

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

6.8 Original scheduled completion date and actual date of completion;

6.9 Time extensions granted (number of days);

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

6.11 Amount of any liquidated damages assessed against Bidder; and

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

Part C: Safety

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

Year EMR

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

2.1 Number of lost workday cases: ____

2.2 Number of medical treatment cases: ____

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

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

Signature: ______________________________ Date: ________________ By: _______________________________________________________________ Name and Title
END OF BIDDER’S QUESTIONNAIRE
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Contract
This public works contract (“Contract”) is entered into by and between City of Cupertino (“City”) and _______________________________________ (“Contractor”), for work on the Stevens Creek Boulevard Class IV Bike Lane Phase 2A Project, Federal-Aid Project No. CML-5318 (036), CIP Project No. 2022-15 (“Project”).

The parties agree as follows:

1. Award of Contract. In response to the Notice Inviting Bids, Contractor has submitted a Bid Proposal to perform the Work to construct the Project. On _____________, 20___, City authorized award of this Contract to Contractor for the amount set forth in Section 4, below.

City has elected to include the following Project alternate(s) in the Contract: No alternates.

2.1 Notice Inviting Bids;

2.2 Instructions to Bidders;

2.3 Addenda, if any;

2.4 Bid Proposal and attachments thereto;

2.5 Contract;

2.6 Payment and Performance Bonds;

2.7 General Conditions;

2.8 Special Conditions;

2.9 Project Plans and Specifications;

2.10 Change Orders, if any;

2.11 Notice of Potential Award;

2.12 Notice to Proceed; and

2.13 The following:
1) Exhibit A – Form FHWA 1273
2) Exhibit B – Minimum Federal Wage Rates Determination 3) Exhibit C – Bid Schedule

4. Payment. As full and complete compensation for Contractor’s timely performance and completion of the Work in strict accordance with the terms and conditions of the Contract Documents, City will pay Contractor $___________________ (“Contract Price”) for all of Contractor’s direct and indirect costs to perform the Work, including all labor, materials, supplies, equipment, taxes, insurance, bonds and all overhead costs, in accordance with the payment provisions in the General Conditions.
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7. Labor Code Compliance.

10. Independent Contractor. Contractor is an independent contractor under this Contract and will have control of the Work and the means and methods by which it is performed. Contractor 181
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and its Subcontractors are not employees of City and are not entitled to participate in any health, retirement, or any other employee benefits from City.

11. Notice. Any notice, billing, or payment required by or pursuant to the Contract Documents must be made in writing, signed, dated and sent to the other party by personal delivery, U.S. Mail, a reliable overnight delivery service, or by email as a PDF file. Notice is deemed effective upon delivery, except that service by U.S. Mail is deemed effective on the second working day after deposit for delivery. Notice for each party must be given as follows:

City:

Attn: Jason Wong, Senior Civil Engineer
City of Cupertino – Public Works
10300 Torre Avenue
Cupertino, CA 95014
PH: (408) 777-3215
Email: [email protected]

Contractor:

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

12. General Provisions.

12.2 Third Party Beneficiaries. There are no intended third party beneficiaries to this Contract.

12.3 Governing Law and Venue. This Contract will be governed by California law and venue will be in the Santa Clara County Superior Court, and no other place.

12.4 Amendment. No amendment or modification of this Contract will be binding unless it is in a writing duly authorized and signed by the parties to this Contract.

12.6 Severability. If any provision of the Contract Documents is determined to be illegal, invalid, or unenforceable, in whole or in part, the remaining provisions of the Contract Documents will remain in full force and effect. 182
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13. Federal Requirement. The provisions of Form FHWA 1273 is hereby physically attached, unmodified as a part of this contract (Exhibit A). This provision applies to federal-aid contracts and all work performed by subcontracts and subsequent lower-tier subcontracts and required be physically included in each executed contract.
[Signatures are on the following page.]
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The parties agree to this Contract as witnessed by the signatures below:

END OF CONTRACT
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Payment Bond
The City of Cupertino (“City”) and ________________________ (“Contractor”) have entered into a contract for work on the Stevens Creek Boulevard Class IV Bike Lane Phase 2A Project, Federal-Aid Project No. CML-5318 (036), CIP Project No. 2022-15 (“Project”). The Contract is incorporated by reference into this Payment Bond (“Bond”).

1. General. Under this Bond, Contractor as principal and ____________________________, its surety (“Surety”), are bound to City as obligee in an amount not less than $_________________, under California Civil Code § 9550 et seq., to ensure payment to authorized claimants. This Bond is binding on the respective successors, assigns, owners, heirs, or executors of Surety and Contractor.

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

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

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

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

Attn: _____________________________________________________ Address: __________________________________________________ City/State/Zip: ______________________________________________ Phone: ___________________________________________________ Email: ____________________________________________________

6. Law and Venue. This Bond will be governed by California law, and venue for any dispute pursuant to this Bond will be in the Santa Clara County Superior Court, and no other place.

Surety will be responsible for City’s attorneys’ fees and costs in any action to enforce the provisions of this Bond.
[Signatures are on the following page.]
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7. Effective Date; Execution. This Bond is entered into and is effective on __________, 20__.

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

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

APPROVED BY CITY:

s/ __________________________________ ______________________________ Date
____________________________________
Name, Title

END OF PAYMENT BOND
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Performance Bond
The City of Cupertino (“City”) and __________________________ (“Contractor”) have entered into a contract for work on the Stevens Creek Boulevard Class IV Bike Lane Phase 2A Project, Federal-Aid Project No. CML-5318 (036), CIP Project No. 2022-15 (“Project”). The Contract is incorporated by reference into this Performance Bond (“Bond”).

1. General. Under this Bond, Contractor as principal and ___________________________, its surety (“Surety”), are bound to City as obligee for an amount not less than $__________________ to ensure Contractor’s faithful performance of its obligations under the Contract. This Bond is binding on the respective successors, assigns, owners, heirs, or executors of Surety and Contractor.

2. Surety’s Obligations. Surety’s obligations are co-extensive with Contractor’s obligations under the Contract. If Contractor fully performs its obligations under the Contract, including its warranty obligations under the Contract, Surety’s obligations under this Bond will become null and void. Otherwise, Surety’s obligations will remain in full force and effect.

3. Waiver. Surety waives any requirement to be notified of and further consents to any alterations to the Contract made under the applicable provisions of the Contract Documents, including changes to the scope of Work or extensions of time for performance of Work under the Contract. Surety waives the provisions of Civil Code §§ 2819 and 2845.

4. Application of Contract Balance. Upon making a demand on this Bond for completion of the Work prior to acceptance of the Project, City will make the Contract Balance available to Surety for completion of the Work under the Contract. For purposes of this provision, the Contract Balance is defined as the total amount payable by City to Contractor as the Contract Price minus amounts already paid to Contractor, and minus any liquidated damages, credits, or backcharges to which City is entitled under the terms of the Contract.

5. Contractor Default. Upon written notification from City of Contractor’s termination for default under Article 13 of the Contract General Conditions, time being of the essence, Surety must act within the time specified in Article 13 to remedy the default through one of the following courses of action:

5.1 Arrange for completion of the Work under the Contract by Contractor, with City’s consent, but only if Contractor is in default solely due to its financial inability to complete the Work;

5.2 Arrange for completion of the Work under the Contract by a qualified contractor acceptable to City, and secured by performance and payment bonds issued by an admitted surety as required by the Contract Documents, at Surety’s expense; or

5.3 Waive its right to complete the Work under the Contract and reimburse City the amount of City’s costs to have the remaining Work completed.

6. Surety Default. If Surety defaults on its obligations under the Bond, City will be entitled to recover all costs it incurs due to Surety’s default, including legal, design professional, or delay costs.
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7. Notice. Any notice to Surety may be given in the manner specified in the Contract and sent to Surety as follows:

8. Law and Venue. This Bond will be governed by California law, and venue for any dispute pursuant to this Bond will be in the Santa Clara County Superior Court, and no other place.

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

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

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

APPROVED BY CITY:

s/ __________________________________ ______________________________ Date
____________________________________
Name, Title

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

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

Change Order means a written document duly approved and executed by City, which changes the scope of Work, the Contract Price, or the Contract Time.

City means the municipality which has entered into the Contract with Contractor for performance of the Work, acting through its City Council, officers, employees, City Engineer, and any other authorized representatives.

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

Claim means a separate demand by Contractor for a change in the Contract Time or Contract Price, that has previously been submitted to City in accordance with the requirements of the Contract Documents, and which has been rejected by City, in whole or in part; or a written demand by Contractor objecting to the amount of Final Payment.

Contract means the signed agreement between City and Contractor for performing the Work required for the Project, and all documents expressly incorporated therein.

Contract Documents means, collectively, all of the documents listed as such in Section 2 of the Contract, including the Notice Inviting Bids; the Instructions to Bidders; addenda, if any; the Bid Proposal, and attachments thereto; the Contract; the Notice of Potential Award and Notice to Proceed; the payment and performance bonds; the General Conditions; the Special Conditions; the Project Plans and Specifications; any Change Orders; and any other documents which are clearly and unambiguously made part of the Contract Documents. The Contract Documents do not include documents provided “For Reference Only,” or documents that are intended solely to provide information regarding existing conditions.

Contract Price means the total compensation to be paid to Contractor for performance of the Work, as set forth in the Contract and as may be amended by Change Order or adjusted for an Allowance. The Contract Price is not subject to adjustment due to inflation or due to the increased cost of labor, material, supplies or equipment following submission of the Bid Proposal.

Contract Time means the time specified for complete performance of the Work, as set forth in the Contract and as may be amended by Change Order.

Contractor means the individual, partnership, corporation, or joint-venture that has signed the Contract with City to perform the Work.

Day means a calendar day unless otherwise specified.
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Design Professional means the licensed individual(s) or firm(s) retained by City to provide architectural, engineering, or other design professional services for the Project. If no Design Professional has been retained for this Project, any reference to Design Professional is deemed to refer to the Engineer.

DIR means the California Department of Industrial Relations.

Drawings has the same meaning as Plans.

Engineer means the City Engineer for the City of Cupertino and his or her authorized delegees.

Excusable Delay is defined in Section 5.3(B), Excusable Delay.

Extra Work means new or unforeseen work added to the Project, as determined by the Engineer in his or her sole discretion, including Work that was not part of or incidental to the scope of the Work when the Contractor’s bid was submitted; Work that is substantially different from the Work as described in the Contract Documents at bid time; or Work that results from a substantially differing and unforeseeable condition.

Final Completion means Contractor has fully completed all of the Work required by the Contract Documents to the City’s satisfaction, including all punch list items and any required commissioning or training, and has provided the City with all required submittals, including the instructions and manuals, product warranties, and as-built drawings.

Final Payment means payment to Contractor of the unpaid Contract Price, including release of undisputed retention, less amounts withheld or deducted pursuant to the Contract Documents.

Furnish means to purchase and deliver for the Project.

Government Code Claim means a claim submitted pursuant to California Government Code § 900 et seq.

Hazardous Materials means any substance or material identified now or in the future as hazardous under any Laws, or any other substance or material that may be considered hazardous or otherwise subject to Laws governing handling, disposal, or cleanup.

Including, whether or not capitalized, means “including, but not limited to,” unless the context clearly requires otherwise.

Inspector means the individual(s) or firm(s) retained or employed by City to inspect the workmanship, materials, and manner of construction of the Project and its components to ensure compliance with the Contract Documents and all Laws.

Install means to fix in place for materials, and to fix in place and connect for equipment.

Laws means all applicable local, state, and federal laws, regulations, rules, codes, ordinances, permits, orders, and the like enacted or imposed by or under the auspices of any governmental entity with jurisdiction over any of the Work or any performance of the Work, including health and safety requirements.

Non-Excusable Delay is defined in Section 5.3(D), Non-Excusable Delay.

Plans means the City-provided plans, drawings, details, or graphical depictions of the Project requirements, but does not include Shop Drawings.
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Project means the public works project referenced in the Contract, as modified by any Project alternates elected by City, if any.

Project Manager means the individual designated by City to oversee and manage the Project on City’s behalf and may include his or her authorized delegee(s) when the Project Manager is unavailable. If no Project Manager has been designated for this Project, any reference to Project Manager is deemed to refer to the Engineer.

Recoverable Costs is defined in Section 5.3(F), Recoverable Costs.

Request for Information or RFI means Contractor’s written request for information about the Contract Documents, the Work or the Project, submitted to City in the manner and format specified by City.

Section, when capitalized in these General Conditions, means a numbered section or subsection of the General Conditions, unless the context clearly indicates otherwise.

Shop Drawings means drawings, plan details or other graphical depictions prepared by or on behalf of Contractor, and subject to City acceptance, which are intended to provide details for fabrication, installation, and the like, of items required by or shown in the Plans or Specifications.

Specialty Work means Work that must be performed by a specialized Subcontractor with the specified license or other special certification, and that the Contractor is not qualified to selfperform.

Specifications means the technical, text specifications describing the Project requirements, which are prepared for and incorporated into the Contract by or on behalf of City, and does not include the Contract, General Conditions or Special Conditions.

Subcontractor means an individual, partnership, corporation, or joint-venture retained by Contractor directly or indirectly through a subcontract to perform a specific portion of the Work.

The term Subcontractor applies to subcontractors of all tiers, unless otherwise indicated by the context. A third party such as a utility performing related work on the Project is not a Subcontractor, even if Contractor must coordinate its Work with the third party.

Technical Specifications has the same meaning as Specifications.

Work means all of the construction and services necessary for or incidental to completing the Project in conformance with the requirements of the Contract Documents.

Work Day or Working Day, whether or not capitalized, means a weekday when the City is open for business, and does not include holidays observed by the City. Working day shall be consistent with the definition in Caltrans Standard Specifications Section 1-1.07.

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, approximately the first week in February; 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
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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 31: and each day appointed by the Governor of California and formally recognized by the Santa Clara County Board of Supervisors as a day of mourning, thanksgiving, or special observance.

Worksite means the place or places where the Work is performed, which includes, but may extend beyond the Project site, including separate locations for staging, storage, or fabrication.

Article 2 - Roles and Responsibilities

2.1 City.
(A) City Council. The City Council has final authority in all matters affecting the Project, except to the extent it has delegated authority to the Engineer. (B) Engineer. The Engineer, acting within the authority conferred by the City Council, is responsible for administration of the Project on behalf of City, including authority to provide directions to the Design Professional and to Contractor to ensure proper and timely completion of the Project. The Engineer’s decisions are final and conclusive within the scope of his or her authority, including interpretation of the Contract Documents.
(C) Project Manager. The Project Manager assigned to the Project will be the primary point of contact for the Contractor and will serve as City’s representative for daily administration of the Project on behalf of City. Unless otherwise specified, all of Contractor’s communications to City (in any form) will go to or through the Project Manager. City reserves the right to reassign the Project Manager role at any time or to delegate duties to additional City representatives, without prior notice to or consent of Contractor.
(D) Design Professional. The Design Professional is responsible for the overall design of the Project and, to the extent authorized by City, may act on City’s behalf to ensure performance of the Work in compliance with the Plans and Specifications, including any design changes authorized by Change Order. The Design Professional’s duties may include review of Contractor’s submittals, visits to any Worksite, inspecting the Work, evaluating test and inspection results, and participation in Project-related meetings, including any pre-construction conference, weekly meetings, and coordination meetings. The Design Professional’s interpretation of the Plans or Specifications is final and conclusive.

2.2 Contractor.
(A) General. Contractor must provide all labor, materials, supplies, equipment, services, and incidentals necessary to perform and timely complete the Work in strict accordance with the Contract Documents, and in an economical and efficient manner in the best interests of City, and with minimal inconvenience to the public. 192
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(B) Responsibility for the Work and Risk of Loss. Contractor is responsible for supervising and directing all aspects of the Work to facilitate the efficient and timely completion of the Work. Contractor is solely responsible for and required to exercise full control over the Work, including the construction means, methods, techniques, sequences, procedures, safety precautions and programs, and coordination of all portions of the Work with that of all other contractors and Subcontractors, except to the extent that the Contract Documents provide other specific instructions. Contractor’s responsibilities extend to any plan, method or sequence suggested, but not required by City or specified in the Contract Documents. From the date of commencement of the Work until either the date on which City formally accepts the Project or the effective date of termination of the Contract, whichever is later, Contractor bears all risks of injury or damage to the Work and the materials and equipment delivered to any Worksite, by any cause including fire, earthquake, wind, weather, vandalism or theft. (C) Project Administration. Contractor must provide sufficient and competent administration, staff, and skilled workforce necessary to perform and timely complete the Work in accordance with the Contract Documents. Before starting the Work, Contractor must designate in writing and provide complete contact information, including telephone numbers and email address, for the officer or employee in Contractor’s organization who is to serve as Contractor’s primary representative for the Project, and who has authority to act on Contractor’s behalf. A Subcontractor may not serve as Contractor’s primary representative.
(D) On-Site Superintendent. Contractor must, at all times during performance of the Work, provide a qualified and competent full-time superintendent acceptable to City, and assistants as necessary, who must be physically present at the Project site while any aspect of the Work is being performed. The superintendent must have full authority to act and communicate on behalf of Contractor, and Contractor will be bound by the superintendent’s communications to City. City’s approval of the superintendent is required before the Work commences. If City is not satisfied with the superintendent’s performance, City may request a qualified replacement of the superintendent. Failure to comply may result in temporary suspension of the Work, at Contractor’s sole expense and with no extension of Contract Time, until an approved superintendent is physically present to supervise the Work. Contractor must provide written notice to City, as soon as practicable, before replacing the superintendent.
(E) Standards. Contractor must, at all times, ensure that the Work is performed in an efficient, skillful manner following best practices and in full compliance with the Contract Documents, Laws, and applicable manufacturer’s recommendations. Contractor has a material and ongoing obligation to provide true and complete information, to the best of its knowledge, with respect to all records, documents, or communications pertaining to the Project, including oral or written reports, statements, certifications, Change Order requests, or Claims.
(F) Meetings. Contractor, its project manager, superintendent and any primary Subcontractors requested by City, must attend a pre-construction conference, if requested by City, as well as weekly Project progress meetings scheduled with City. If applicable, Contractor may also be required to participate in coordination meetings with other parties relating to other work being performed on or near the Project site or in relation to the Project, including work or activities performed by City, other contractors, or other utility owners.
(G) Construction Records. Contractor will maintain up-to-date, thorough, legible, and dated daily job reports, which document all significant activity on the Project for each day that Work is performed on the Project. The daily report for each day must include the number of workers at the Project site; primary Work activities; major deliveries; problems 193
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encountered, including injuries, if any; weather and site conditions; and delays, if any.

Contractor will take date and time-stamped photographs to document general progress of the Project, including site conditions prior to construction activities, before and after photographs at offset trench laterals, existing improvements and utilities, damage and restoration. Contractor will maintain copies of all subcontracts, Project-related correspondence with Subcontractors, and records of meetings with Subcontractors. Upon request by the City, Contractor will permit review of and/or provide copies of any of these construction records.
(H) Responsible Party. Contractor is solely responsible to City for the acts or omissions of any Subcontractors, or any other party or parties performing portions of the Work or providing equipment, materials or services for or on behalf of Contractor or the Subcontractors. Upon City’s written request, Contractor must promptly and permanently remove from the Project, at no cost to City, any employee or Subcontractor or employee of a Subcontractor who the Engineer has determined to be incompetent, intemperate or disorderly, or who has failed or refused to perform the Work as required under the Contract Documents.
(I) Correction of Defects. Contractor must promptly correct, at Contractor’s sole expense, any Work that is determined by City to be deficient or defective in any way, including workmanship, materials, parts or equipment. Workmanship, materials, parts or equipment that do not conform to the requirements under the Plans, Specifications and other Contract Documents, as determined by City, will be considered defective and subject to rejection. Contractor must also promptly correct, at Contractor’s sole expense, any Work performed beyond the lines and grades shown on the Plans or established by City, and any Extra Work performed without City’s prior written approval. If Contractor fails to correct or to take reasonable steps toward correcting defective Work within five days following notice from City, or within the time specified in City’s notice to correct, City may elect to have the defective Work corrected by its own forces or by a third party, in which case the cost of correction will be deducted from the Contract Price. If City elects to correct defective Work due to Contractor’s failure or refusal to do so, City or its agents will have the right to take possession of and use any equipment, supplies, or materials available at the Project site or any Worksite on City property, in order to effectuate the correction, at no extra cost to City. Contractor’s warranty obligations under Section 11.2, Warranty, will not be waived nor limited by City’s actions to correct defective Work under these circumstances. Alternatively, City may elect to retain defective Work, and deduct the difference in value, as determined by the Engineer, from payments otherwise due to Contractor. This paragraph applies to any defective Work performed by Contractor during the one-year warranty period under Section 11.2.
(J) Contractor’s Records. Contractor must maintain all of its records relating to the Project in any form, including paper documents, photos, videos, electronic records, approved samples, and the construction records required pursuant to paragraph (G), above. Project records subject to this provision include complete Project cost records and records relating to preparation of Contractor’s bid, including estimates, take-offs, and price quotes or bids.
(1) Contractor’s cost records must include all supporting documentation, including original receipts, invoices, and payroll records, evidencing its direct costs to perform the Work, including, but not limited to, costs for labor, materials and equipment. Each cost record should include, at a minimum, a description of the expenditure with references to the applicable requirements of the Contract Documents, the amount actually paid, the date of payment, and whether the expenditure is part of the original Contract Price, related to an executed Change Order, or otherwise categorized by Contractor as Extra Work. Contractor’s failure 194
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to comply with this provision as to any claimed cost operates as a waiver of any rights to recover the claimed cost.
(2) Contractor must continue to maintain its Project-related records in an organized manner for a period of five years after City’s acceptance of the Project or following Contract termination, whichever occurs first. Subject to prior notice to Contractor, City is entitled to inspect or audit any of Contractor’s records relating to the Project during Contractor’s normal business hours. Contractor’s records may also be subject to examination and 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.
(K) Copies of Project Documents. Contractor and its Subcontractors must keep copies, at the Project site, of all Work-related documents, including the Contract, permit(s), Plans, Specifications, addenda, Contract amendments, Change Orders, RFIs and RFI responses, Shop Drawings, as-built drawings, schedules, daily records, testing and inspection reports or results, and any related written interpretations. These documents must be available to City for reference at all times during construction of the Project.

2.3 Subcontractors.
(A) General. All Work which is not performed by Contractor with its own forces must be performed by Subcontractors. City reserves the right to approve or reject any and all Subcontractors proposed to perform the Work, for reasons including the Subcontractor’s poor reputation, lack of relevant experience, financial instability, and lack of technical ability or adequately trained workforce. Each Subcontractor must obtain a City business license before performing any Work.
(B) Contractual Obligations. Contractor must require each Subcontractor to comply with the provisions of the Contract Documents as they apply to the Subcontractor’s portion(s) of the Work, including the generally applicable terms of the Contract Documents, and to likewise bind their subcontractors. Contractor will provide that the rights that each Subcontractor may have against any manufacturer or supplier for breach of warranty or guarantee relating to items provided by the Subcontractor for the Project, will be assigned to City. Nothing in these Contract Documents creates a contractual relationship between a Subcontractor and City, but City is deemed to be a third-party beneficiary of the contract between Contractor and each Subcontractor. (C) Termination. If the Contract is terminated, each Subcontractor’s agreement must be assigned by Contractor to City, subject to the prior rights of any surety, but only if and to the extent that City accepts, in writing, the assignment by written notification, and assumes all rights and obligations of Contractor pursuant to each such subcontract agreement.
(D) Substitution of Subcontractor. If Contractor requests substitution of a listed Subcontractor under Public Contract Code § 4107, Contractor is solely responsible for all costs City incurs in responding to the request, including legal fees and costs to conduct a hearing, and any increased subcontract cost to perform the Work that was to be performed by the listed Subcontractor. If City determines that a Subcontractor is unacceptable to City based on the Subcontractor’s failure to satisfactorily perform its Work, or for any of the grounds for substitution listed in Public Contract Code § 4107(a), City may request removal of the Subcontractor from the Project. Upon receipt of a written request from City to remove a Subcontractor pursuant to this paragraph, Contractor will immediately remove the Subcontractor from the Project and, at no further cost to City, will 195
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either (1) self-perform the remaining Work to the extent that Contractor is duly licensed and qualified to do so, or (2) substitute a Subcontractor that is acceptable to City, in compliance with Public Contract Code § 4107, as applicable.

2.4 Coordination of Work.
(A) Concurrent Work. City reserves the right to perform, have performed, or permit performance of other work on or adjacent to the Project site while the Work is being performed for the Project. Contractor is responsible for coordinating its Work with other work being performed on or adjacent to the Project site, including by any utility companies or agencies, and must avoid hindering, delaying, or interfering with the work of other contractors, individuals, or entities, and must ensure safe and reasonable site access and use as required or authorized by City. To the full extent permitted by law, Contractor must hold harmless and indemnify City against any and all claims arising from or related to Contractor’s avoidable, negligent, or willful hindrance of, delay to, or interference with the work of any utility company or agency or another contractor or subcontractor.
(B) Coordination. If Contractor’s Work will connect or interface with work performed by others, Contractor is responsible for independently measuring and visually inspecting such work to ensure a correct connection and interface. Contractor is responsible for any failure by Contractor or its Subcontractors to confirm measurements before proceeding with connecting Work. Before proceeding with any portion of the Work affected by the construction or operations of others, Contractor must give the Project Manager prompt written notification of any defects Contractor discovers which will prevent the proper execution of the Work. Failure to give notice of any known or reasonably discoverable defects will be deemed acknowledgement by Contractor that the work of others is not defective and will not prevent the proper execution of the Work. Contractor must also promptly notify City if work performed by others, including work or activities performed by City’s own forces, is operating to hinder, delay, or interfere with Contractor’s timely performance of the Work. City reserves the right to backcharge Contractor for any additional costs incurred due to Contractor’s failure to comply with the requirements in this Section 2.4.

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

Unless otherwise specified, all submittals, including Requests for Information, are subject to the general provisions of this Section, as well as specific submittal requirements that may be included elsewhere in the Contract Documents, including the Special Conditions or Specifications. The Engineer may require submission of a submittal schedule at or before a pre-construction conference, as may be specified in the Notice to Proceed. (A) General. Contractor is responsible for ensuring that its submittals are accurate and conform to the Contract Documents.
(B) Time and Manner of Submission. Contractor must ensure that its submittals are prepared and delivered in a manner consistent with the current City-accepted schedule for the Work and within the applicable time specified in the Contract Documents, or if no time is specified, in such time and sequence so as not to delay the performance of the Work or completion of the Project.
(C) Required Contents. Each submittal must include the Project name and contract number, Contractor’s name and address, the name and address of any Subcontractor or supplier involved with the submittal, the date, and references to applicable Specification section(s) and/or drawing and detail number(s).
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(D) Required Corrections. If corrections are required, Contractor must promptly make and submit any required corrections as specified in full conformance with the requirements of this Section, or other requirements that apply to that submittal. (E) Effect of Review and Acceptance. Review and acceptance of a submittal by City will not relieve Contractor from complying with the requirements of the Contract Documents. Contractor is responsible for any errors in any submittal, and review or acceptance of a submittal by City is not an assumption of risk or liability by City. (F) Enforcement. Any Work performed or any material furnished, installed, fabricated or used without City’s prior acceptance of a required submittal is performed or provided at Contractor’s risk, and Contractor may be required to bear the costs incident thereto, including the cost of removing and replacing such Work, repairs to other affected portions of the Work or material, and the cost of additional time or services required of City, including costs for the Design Professional, Project Manager, or Inspector. (G) Excessive RFIs. A RFI will be considered excessive or unnecessary if City determines that the explanation or response to the RFI is clearly and unambiguously discernable from the Contract Documents. City’s costs to review and respond to excessive or unnecessary RFIs may be deducted from payments otherwise due to Contractor.

2.6 Shop Drawings. When Shop Drawings are required by the Specifications or requested by the Engineer, they must be prepared according to best practices at Contractor’s expense. The Shop Drawings must be of a size and scale to clearly show all necessary details. Unless otherwise specified by City, Shop Drawings must be provided to the Engineer for review and acceptance at least 30 days before the Work will be performed.

If City requires changes, the corrected Shop Drawings must be resubmitted to the Engineer for review within the time specified by the Engineer. For all Project components requiring Shop Drawings, Contractor will not furnish materials or perform any Work until the Shop Drawings for those components are accepted by City. Contractor is responsible for any errors or omissions in the Shop Drawings, shop fits and field corrections; any deviations from the Contract Documents; and for the results obtained by the use of Shop Drawings. Acceptance of Shop Drawings by City does not relieve Contractor of Contractor’s responsibility.

2.7 Access to Work. Contractor must afford prompt and safe access to any Worksite by City and its employees, agents, or consultants authorized by City; and upon request by City, Contractor must promptly arrange for City representatives to visit or inspect manufacturing sites or fabrication facilities for items to be incorporated into the Work.

2.8 Personnel. Contractor and its Subcontractors must employ only competent and skillful personnel to perform the Work. Contractor and its Subcontractor’s supervisors, security or safety personnel, and employees who have unescorted access to the Project site must possess proficiency in English sufficient to read, understand, receive, and implement oral or written communications or instructions relating to their respective job functions, including safety and security requirements. Upon written notification from the Engineer, Contractor and its Subcontractors must immediately discharge any personnel who are incompetent, disorderly, disruptive, threatening, abusive, or profane, or otherwise refuse or fail to comply with the requirements of the Contract Documents or Laws, including Laws pertaining to health and safety. Any such discharged personnel may not be reemployed or permitted on the Project in any capacity without City’s prior written consent. 197
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Article 3 - Contract Documents

3.1 Interpretation of Contract Documents.
(A) Plans and Specifications. The Plans and Specifications included in the Contract Documents are complementary. If Work is shown on one but not on the other, Contractor must perform the Work as though fully described on both, consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results. The Plans and Specifications are deemed to include and require everything necessary and reasonably incidental to completion of the Work, whether or not particularly mentioned or shown. Contractor must perform all Work and services and supply all things reasonably related to and inferable from the Contract Documents. In the event of a conflict between the Plans and Specifications, the Specifications will control, unless the drawing(s) at issue are dated later than the Specification(s) at issue. Detailed drawings take precedence over general drawings, and large-scale drawings take precedence over smaller scale drawings. Any arrangement or division of the Plans and Specifications into sections is for convenience and is not intended to limit the Work required by separate trades. A conclusion presented in the Plans or Specifications is only a recommendation. Actual locations and depths must be determined by Contractor’s field investigation. Contractor may request access to underlying or background information in City’s possession that is necessary for Contractor to form its own conclusions. (B) Duty to Notify and Seek Direction. If Contractor becomes aware of a changed condition in the Project, or of any ambiguity, conflict, inconsistency, discrepancy, omission, or error in the Contract Documents, including the Plans or Specifications, Contractor must promptly submit a Request for Information to the Engineer and wait for a response from City before proceeding further with the related Work. The RFI must notify City of the issue and request clarification, interpretation or direction. The Engineer’s clarification, interpretation or direction will be final and binding on Contractor. If Contractor proceeds with the related Work before obtaining City’s response, Contractor will be responsible for any resulting costs, including the cost of correcting any incorrect or defective Work that results. Timely submission of a clear and complete RFI is essential to avoiding delay. Delay resulting from Contractor’s failure to submit a timely and complete RFI to the Engineer is Non-Excusable Delay. If Contractor believes that City’s response to an RFI justifies a change to the Contract Price or Contract Time, Contractor must perform the Work as directed, but may submit a timely Change Order request in accordance with the Contract Documents. (See Articles 5 and 6.) (C) Figures and Dimensions. Figures control over scaled dimensions. (D) Technical or Trade Terms. Any terms that have well-known technical or trade meanings will be interpreted in accordance with those meanings, unless otherwise specifically defined in the Contract Documents.
(E) Measurements. Contractor must verify all relevant measurements in the Contract Documents and at the Project site before ordering any material or performing any Work, and will be responsible for the correctness of those measurements or for costs that could have been avoided by independently verifying measurements. (F) Compliance with Laws. The Contract Documents are intended to comply with Laws and will be interpreted to comply with Laws.

3.2 Order of Precedence. Information included in one Contract Document but not in another will not be considered a conflict or inconsistency. Unless otherwise specified in the Special Conditions, in case of any conflict or inconsistency among the Contract 198
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Documents, the following order of precedence will apply, beginning from highest to lowest, with the most recent version taking precedent over an earlier version:
(A) Change Orders;
(B) Addenda;
(C) Contract;
(D) Notice to Proceed;
(E) Attachment B – Federal Contract Requirements (only if used); (F) Special Conditions;
(G) General Conditions;
(H) Payment and Performance Bonds;
(I) Specifications;
(J) Plans;
(K) Notice of Potential Award;
(L) Notice Inviting Bids;
(M) Attachment A – Federal Bidding Requirements (only if used); (N) Instructions to Bidders;
(O) Contractor’s Bid Proposal and attachments;
(P) the City’s standard specifications, as applicable; and (Q) Any generic documents prepared by and on behalf of a third party, that were not prepared specifically for this Project, such as the Caltrans Standard Specifications or Caltrans Special Provisions.

3.3 Caltrans Standard Specifications. Any reference to or incorporation of the Standard Specifications of the State of California, Department of Transportation (“Caltrans”), including “Standard Specifications,” “Caltrans Specifications,” “State Specifications,” or “CSS,” means the most current edition of Caltrans’ Standard Specifications, unless otherwise specified (“Caltrans Standard Specifications”), including the most current amendments as of the date that Contractor’s bid was submitted for this Project. The following provisions apply to use of or reference to the Caltrans Standard Specifications or Special Provisions:
(A) Limitations. The “General Provisions” of the Caltrans Standard Specifications, i.e., sections 1 through 9, do not apply to these Contract Documents with the exception of any specific provisions, if any, which are expressly stated to apply to these Contract Documents.
(B) Conflicts or Inconsistencies. If there is a conflict or inconsistency between any provision in the Caltrans Standard Specifications or Special Provisions and a provision of these Contract Documents, as determined by City, the provision in the Contract Documents will govern.
(C) Meanings. Terms used in the Caltrans Standard Specifications or Special Provisions are to be interpreted as follows:
(1) Any reference to the “Engineer” is deemed to mean the City Engineer. (2) Any reference to the “Special Provisions” is deemed to mean the Special Conditions, unless the Caltrans Special Provisions are expressly included in the Contract Documents listed in Section 2 of the Contract. (3) Any reference to the “Department” or “State” is deemed to mean City.

3.4 For Reference Only. Contractor is responsible for the careful review of any document, study, or report provided by City or appended to the Contract Documents solely for informational purposes and identified as “For Reference Only.” Nothing in any document, 199
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study, or report so appended and identified is intended to supplement, alter, or void any provision of the Contract Documents. Contractor is advised that City or its representatives may be guided by information or recommendations included in such reference documents, particularly when making determinations as to the acceptability of proposed materials, methods, or changes in the Work. Any record drawings or similar final or accepted drawings or maps that are not part of the Contract Documents are deemed to be For Reference Only. The provisions of the Contract Documents are not modified by any perceived or actual conflict with provisions in any document that is provided For Reference Only.

3.5 Current Versions. Unless otherwise specified by City, any reference to standard specifications, technical specifications, or any City or state codes or regulations means the latest specification, code or regulation in effect on the date that bids were due.

3.6 Conformed Copies. If City prepares a conformed set of the Contract Documents following award of the Contract, it will provide Contractor with two hard copy (paper) sets and one copy of the electronic file in PDF format. It is Contractor’s responsibility to ensure that all Subcontractors, including fabricators, are provided with the conformed set of the Contract Documents at Contractor’s sole expense.

3.7 Ownership. No portion of the Contract Documents may be used for any purpose other than construction of the Project, without prior written consent from City. Contractor is deemed to have conveyed the copyright in any designs, drawings, specifications, Shop Drawings, or other documents (in paper or electronic form) developed by Contractor for the Project, and City will retain all rights to such works, including the right to possession.

Article 4 - Bonds, Indemnity, and Insurance

4.1 Payment and Performance Bonds. Within ten days following issuance of the Notice of Potential Award, Contractor is required to provide a payment bond and a performance bond, each in the penal sum of not less than 100% of the Contract Price, and each executed by Contractor and its surety using the bond forms included with the Contract Documents.
(A) Surety. Each bond must be issued and executed by a surety admitted in California. If an issuing surety cancels the bond or becomes insolvent, within seven days following written notice from City, Contractor must substitute a surety acceptable to City.

If Contractor fails to substitute an acceptable surety within the specified time, City may, at its sole discretion, withhold payment from Contractor until the surety is replaced to City’s satisfaction, or terminate the Contract for default.
(B) Supplemental Bonds for Increase in Contract Price. If the Contract Price increases during construction by five percent or more over the original Contract Price, Contractor must provide supplemental or replacement bonds within ten days of written notice from City pursuant to this Section, covering 100% of the increased Contract Price and using the bond forms included with the Contract Documents.

4.2 Indemnity. To the fullest extent permitted by law, Contractor must indemnify, defend, and hold harmless City, its Council, officers, officials, employees, agents, volunteers, and consultants (individually, an “Indemnitee,” and collectively the “Indemnitees”) from and against any and all liability, loss, damage, claims, causes of action, demands, charges, fines, costs, and expenses (including, without limitation, attorney fees, expert witness fees, paralegal fees, and fees and costs of litigation or arbitration) (collectively, “Liability”) of every nature arising out of or in connection with the acts or omissions of Contractor, its employees, Subcontractors, representatives, or agents, in bidding or performing the Work 200
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or in failing to comply with any obligation of Contractor under the Contract, except such Liability caused by the active negligence, sole negligence, or willful misconduct of an Indemnitee. This indemnity requirement applies to any Liability arising from alleged defects in the content or manner of submission of Contractor’s bid for the Contract.

Contractor’s failure or refusal to timely accept a tender of defense pursuant to this Contract will be deemed a material breach of the Contract. City will timely notify Contractor upon receipt of any third-party claim relating to the Contract, as required by Public Contract Code § 9201. Contractor waives any right to express or implied indemnity against any Indemnitee. Contractor’s indemnity obligations under this Contract will survive the expiration or any early termination of the Contract.

4.3 Insurance. No later than ten days following issuance of the Notice of Potential Award, Contractor must procure and provide proof of the insurance coverage required by this Section in the form of certificates and endorsements acceptable to City. The required insurance must cover the activities of Contractor and its Subcontractors relating to or arising from the performance of the Work, and must remain in full force and effect at all times during the period covered by the Contract, through the date of City’s acceptance of the Project. All required insurance must be issued by a company licensed to do business in the State of California, and each such insurer must have an A.M. Best’s financial strength rating of “A” or better and a financial size rating of “VIII” or better. If Contractor fails to provide any of the required coverage in full compliance with the requirements of the Contract Documents, City may, at its sole discretion, purchase such coverage at Contractor’s expense and deduct the cost from payments due to Contractor, or terminate the Contract for default. The procurement of the required insurance will not be construed to limit Contractor’s liability under this Contract or to fulfill Contractor’s indemnification obligations under this Contract.
(A) Policies and Limits. The following insurance policies and limits are required for this Contract, unless otherwise specified in the Special Conditions:
(1) Commercial General Liability (“CGL”) Insurance: The CGL insurance policy must be issued on an occurrence basis, written on a comprehensive general liability form, and must include coverage for liability arising from Contractor’s or its Subcontractor’s acts or omissions in the performance of the Work, including contractor’s protective coverage, contractual liability, products and completed operations, and broad form property damage, with limits of at least $2,000,000 per occurrence and at least $4,000,000 general aggregate. The CGL insurance coverage may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by excess or umbrella policies, provided each such policy complies with the requirements set forth in this Section, including required endorsements. (2) Automobile Liability Insurance: The automobile liability insurance policy must provide coverage of at least $2,000,000 combined single-limit per accident for bodily injury, death, or property damage, including hired and non-owned auto liability.
(3) Workers’ Compensation Insurance and Employer’s Liability: The workers’ compensation and employer’s liability insurance policy must comply with the requirements of the California Labor Code, providing coverage of at least $1,000,000 or as otherwise required by the statute. If Contractor is self-insured, Contractor must provide its Certificate of Permission to Self-Insure, duly authorized by the DIR.
(4) Pollution Liability Insurance: The pollution liability insurance policy must be issued on an occurrence basis, providing coverage of at least $2,000,000 for all 201
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loss arising out of claims for bodily injury, death, property damage, or environmental damage caused by pollution conditions resulting from the Work. (5) Builder’s Risk Insurance: The builder’s risk insurance policy must be issued on an occurrence basis, for all-risk or “all perils” coverage on a 100% completed value basis on the insurable portion of the Project for the benefit of City. (B) Notice. Each certificate of insurance must state that the coverage afforded by the policy or policies will not be reduced, cancelled or allowed to expire without at least 30 days written notice to City, unless due to non-payment of premiums, in which case ten days written notice must be made to City.
(C) Waiver of Subrogation. Each required policy must include an endorsement providing that the carrier will waive any right of subrogation it may have against City. (D) Required Endorsements. The CGL policy, automobile liability policy, pollution liability policy, and builder’s risk policy must include the following specific endorsements:
(1) The City, including its Council, officials, officers, employees, agents, volunteers and consultants (collectively, “Additional Insured”) must be named as an additional insured for all liability arising out of the operations by or on behalf of the named insured, and the policy must protect the Additional Insured against any and all liability for personal injury, death or property damage or destruction arising directly or indirectly in the performance of the Contract. The additional insured endorsement must be provided using ISO form CG 20 10 11 85 or equivalent form(s) approved by the City.
(2) The inclusion of more than one insured will not operate to impair the rights of one insured against another, and the coverages afforded will apply as though separate policies have been issued to each insured.
(3) The insurance provided by Contractor is primary and no insurance held or owned by any Additional Insured may be called upon to contribute to a loss. (4) This policy does not exclude explosion, collapse, underground excavation hazard, or removal of lateral support.
(E) Contractor’s Responsibilities. This Section 4.3 establishes the minimum requirements for Contractor’s insurance coverage in relation to this Project, but is not intended to limit Contractor’s ability to procure additional or greater coverage. Contractor is responsible for its own risk assessment and needs and is encouraged to consult its insurance provider to determine what coverage it may wish to carry beyond the minimum requirements of this Section. Contractor is solely responsible for the cost of its insurance coverage, including premium payments, deductibles, or self-insured retentions, and no Additional Insured will be responsible or liable for any of the cost of Contractor’s insurance coverage.
(F) Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions that apply to the required insurance (collectively, “deductibles”) in excess of $100,000 are subject to approval by the City’s Risk Manager, acting in his or her sole discretion, and must be declared by Contractor when it submits its certificates of insurance and endorsements pursuant to this Section 4.3. If the City’s Risk Manager determines that the deductibles are unacceptably high, at City’s option, Contractor must either reduce or eliminate the deductibles as they apply to City and all required Additional Insured; or must provide a financial guarantee, to City’s satisfaction, guaranteeing payment of losses and related investigation, claim administration, and legal expenses. 202
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(G) Subcontractors. Contractor must ensure that each Subcontractor is required to maintain the same insurance coverage required under this Section 4.3, with respect to its performance of Work on the Project, including those requirements related to the Additional Insureds and waiver of subrogation, but excluding pollution liability or builder’s risk insurance unless otherwise specified in the Special Conditions. A Subcontractor may be eligible for reduced insurance coverage or limits, but only to the extent approved in writing in advance by the City’s Risk Manager. Contractor must confirm that each Subcontractor has complied with these insurance requirements before the Subcontractor is permitted to begin Work on the Project. Upon request by the City, Contractor must provide certificates and endorsements submitted by each Subcontractor to prove compliance with this requirement. The insurance requirements for Subcontractors do not replace or limit the Contractor’s insurance obligations.

Article 5 - Contract Time

5.1 Time is of the Essence. Time is of the essence in Contractor’s performance and completion of the Work, and Contractor must diligently prosecute the Work and complete it within the Contract Time.
(A) General. Contractor must commence the Work on the date indicated in the Notice to Proceed and must fully complete the Work in strict compliance with all requirements of the Contract Documents and within the Contract Time. Contractor may not begin performing the Work before the date specified in the Notice to Proceed. (B) Authorization. Contractor is not entitled to compensation or credit for any Work performed before the date specified in the Notice to Proceed, with the exception of any schedules, submittals, or other requirements, if any, that must be provided or performed before issuance of the Notice to Proceed.
(C) Rate of Progress. Contractor and its Subcontractors must, at all times, provide workers, materials, and equipment sufficient to maintain the rate of progress necessary to ensure full completion of the Work within the Contract Time. If City determines that Contractor is failing to prosecute the Work at a sufficient rate of progress, City may, in its sole discretion, direct Contractor to provide additional workers, materials, or equipment, or to work additional hours or days without additional cost to City, in order to achieve a rate of progress satisfactory to City. If Contractor fails to comply with City’s directive in this regard, City may, at Contractor’s expense, separately contract for additional workers, materials, or equipment or use City’s own forces to achieve the necessary rate of progress. Alternatively, City may terminate the Contract based on Contractor’s default.

5.2 Schedule Requirements. Contractor must prepare all schedules using standard, commercial scheduling software acceptable to the Engineer, and must provide the schedules in electronic and paper form as requested by the Engineer. In addition to the general scheduling requirements set forth below, Contractor must also comply with any scheduling requirements included in the Special Conditions or in the Technical Specifications.
(A) Baseline (As-Planned) Schedule. Within ten calendar days following City’s issuance of the Notice to Proceed (or as otherwise specified in the Notice to Proceed), Contractor must submit to City for review and acceptance a baseline (as-planned) schedule using critical path methodology showing in detail how Contractor plans to perform and fully complete the Work within the Contract Time, including labor, equipment, materials and fabricated items. The baseline schedule must show the order of the major items of Work and the dates of start and completion of each item, including 203
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when the materials and equipment will be procured. The schedule must also include the work of all trades, reflecting anticipated labor or crew hours and equipment loading for the construction activities, and must be sufficiently comprehensive and detailed to enable progress to be monitored on a day-by-day basis. For each activity, the baseline schedule must be dated, provided in the format specified in the Contract Documents or as required by City, and must include, at a minimum, a description of the activity, the start and completion dates of the activity, and the duration of the activity. (1) Specialized Materials Ordering. Within five calendar days following issuance of the Notice to Proceed, Contractor must order any specialized material or equipment for the Work that is not readily available from material suppliers.

Contractor must also retain documentation of the purchase order date(s).

(B) City’s Review of Schedules. City will review and may note exceptions to the baseline schedule, and to the progress schedules submitted as required below, to assure completion of the Work within the Contract Time. Contractor is solely responsible for resolving any exceptions noted in a schedule and, within seven days, must correct the schedule to address the exceptions. City’s review or acceptance of Contractor’s schedules will not operate to waive or limit Contractor’s duty to complete the Project within the Contract Time, nor to waive or limit City’s right to assess liquidated damages for Contractor’s unexcused failure to do so.
(C) Progress Schedules. After City accepts the final baseline schedule with no exceptions, Contractor must submit an updated progress schedule and three-week lookahead schedule, in the format specified by City, for review and acceptance with each application for a progress payment, or when otherwise specified by City, until completion of the Work. The updated progress schedule must: show how the actual progress of the Work as constructed to date compares to the baseline schedule; reflect any proposed changes in the construction schedule or method of operations, including to achieve Project milestones within the Contract Time; and identify any actual or potential impacts to the critical path. Contractor must also submit periodic reports to City of any changes in the projected material or equipment delivery dates for the Project. (1) Float. The progress schedule must show early and late completion dates for each task. The number of days between those dates will be designated as the “float.” Any float belongs to the Project and may be allocated by the Engineer to best serve timely completion of the Project.
(2) Failure to Submit Schedule. Reliable, up-to-date schedules are essential to efficient and cost-effective administration of the Project and timely completion. If Contractor fails to submit a schedule within the time periods specified in this Section, or submits a schedule to which City has noted exceptions that are not corrected, City may withhold up to five percent from payment(s) otherwise due to Contractor until the exceptions are resolved, the schedule is corrected and resubmitted, and City has accepted the schedule. In addition, Contractor’s failure to comply with the schedule requirements in this Section 5.2 will be deemed a material default and a waiver of any claims for Excusable Delay or loss of productivity arising during any period when Contractor is out of compliance, subject only to the limits of Public Contract Code § 7102. (D) Recovery Schedule. If City determines that the Work is more than one week behind schedule, within seven days following written notice of such determination, Contractor must submit a recovery schedule, showing how Contractor intends to perform and complete the Work within the Contract Time, based on actual progress to date. 204
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(E) Effect of Acceptance. Contractor and its Subcontractors must perform the Work in accordance with the most current City-accepted schedule unless otherwise directed by City. City’s acceptance of a schedule does not operate to extend the time for completion of the Work or any component of the Work, and will not affect City’s right to assess liquidated damages for Contractor’s unexcused delay in completing the Work within the Contract Time.
(F) Posting. Contractor must at all times prominently post a copy of the most current City-accepted progress or recovery schedule in its on-site office. (G) Reservation of Rights. City reserves the right to direct the sequence in which the Work must be performed or to make changes in the sequence of the Work in order to facilitate the performance of work by City or others, or to facilitate City’s use of its property. The Contract Time or Contract Price may be adjusted to the extent such changes in sequence actually increase or decrease Contractor’s time or cost to perform the Work.
(H) Authorized Working Days and Times. Contractor is limited to working Monday through Friday, excluding holidays, during City’s normal business hours, except as provided in the Special Conditions or as authorized in writing by City. City reserves the right to charge Contractor for additional costs incurred by City due to Work performed on days or during hours not expressly authorized in the Contract Documents, including reimbursement of costs incurred for inspection, testing, and construction management services.

5.3 Delay and Extensions of Contract Time.
(A) Notice of Delay. If Contractor becomes aware of any actual or potential delay affecting the critical path, Contractor must promptly notify the Engineer in writing, regardless of the nature or cause of the delay, so that City has a reasonable opportunity to mitigate or avoid the delay.
(B) Excusable Delay. The Contract Time may be extended if Contractor encounters “Excusable Delay,” which is an unavoidable delay in completing the Work within the Contract Time due to causes completely beyond Contractor’s control, and which Contractor could not have avoided or mitigated through reasonable care, planning, foresight, and diligence, provided that Contractor is otherwise fully performing its obligations under the Contract Documents. Grounds for Excusable Delay may include fire, natural disasters including earthquake or unusually severe weather, acts of terror or vandalism, epidemic, unforeseeable adverse government actions, unforeseeable actions of third parties, encountering unforeseeable hazardous materials, unforeseeable site conditions, or suspension for convenience under Article 13. The Contract Time will not be extended based on circumstances which will not unavoidably delay completing the Work within the Contract Time based on critical path analysis. (C) Weather Delays. A “Weather Delay Day” is a Working Day during which Contractor and its forces, including Subcontractors, are unable to perform more than 40% of the critical path Work scheduled for that day due to adverse weather conditions which impair the ability to safely or effectively perform the scheduled critical path Work that day.

Adverse weather conditions may include rain, saturated soil, and Project site clean-up required due to adverse weather. Determination of what constitutes critical path Work scheduled for that day will be based on the most current, City-approved schedule.

Contractor will be entitled to a non-compensable extension of the Contract Time for each Weather Delay Day in excess of the normal Weather Delay Days within a given month as determined by reliable records, including monthly rainfall averages, for the preceding ten years (or as otherwise specified in the Special Conditions or Specifications). 205
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(1) Contractor must fully comply with the applicable procedures in Articles 5 and 6 of the General Conditions regarding requests to modify the Contract Time. (2) Contractor will not be entitled to an extension of time for a Weather Delay Day to the extent Contractor is responsible for concurrent delay on that day.
(3) Contractor must take reasonable steps to mitigate the consequences of Weather Delay Days, including prudent workforce management and protecting the Work, Project Site, materials, and equipment.
(D) Non-Excusable Delay. Delay which Contractor could have avoided or mitigated through reasonable care, planning, foresight and diligence is “Non-Excusable Delay.” Contractor is not entitled to an extension of Contract Time or any compensation for NonExcusable Delay, or for Excusable Delay that is concurrent with Non-Excusable Delay.

Non-Excusable Delay includes delay caused by:
(1) weather conditions which are normal for the location of the Project, as determined by reliable records, including monthly rainfall averages, for the preceding ten years;
(2) Contractor’s failure to order equipment and materials sufficiently in advance of the time needed for completion of the Work within the Contract Time; (3) Contractor’s failure to provide adequate notification to utility companies or agencies for connections or services necessary for completion of the Work within the Contract Time;
(4) foreseeable conditions which Contractor could have ascertained from reasonably diligent inspection of the Project site or review of the Contract Documents or other information provided or available to Contractor; (5) Contractor’s failure, refusal, or financial inability to perform the Work within the Contract Time, including insufficient funds to pay its Subcontractors or suppliers;
(6) performance or non-performance by Contractor’s Subcontractors or suppliers;
(7) the time required to respond to excessive RFIs (see Section 2.5(G)); (8) delayed submission of required submittals, or the time required for correction and resubmission of defective submittals;
(9) time required for repair of, re-testing, or re-inspection of defective Work; (10) enforcement of Laws by City, or outside agencies with jurisdiction over the Work; or
(11) City’s exercise or enforcement of any of its rights or Contractor’s duties pursuant to the Contract Documents, including correction of defective Work, extra inspections or testing due to non-compliance with Contract requirements, safety compliance, environmental compliance, or rejection and return of defective or deficient submittals.
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(E) Compensable Delay. Pursuant to Public Contract Code § 7102, in addition to entitlement to an extension of Contract Time, Contractor is entitled to compensation for costs incurred due to delay caused solely by City, when that delay is unreasonable under the circumstances involved and not within the contemplation of the parties (“Compensable Delay”). Contractor is not entitled to an extension of Contract Time or recovery of costs for Compensable Delay that is concurrent with Non-Excusable Delay.

Delay due to causes that are beyond the control of either City or Contractor, including Weather Delay Days, discovery of Historic or Archeological Items pursuant to Section

7.18, or the actions or inactions of third parties or other agencies, is not Compensable Delay, and will only entitle Contractor to an extension of time commensurate with the time lost due to such delay.
(F) Recoverable Costs. Contractor is not entitled to compensation for Excusable Delay unless it is Compensable Delay, as defined above. Contractor is entitled to recover only the actual, direct, reasonable, and substantiated costs (“Recoverable Costs”) for each working day that the Compensable Delay prevents Contractor from proceeding with more than 50% of the critical path Work scheduled for that day, based on the most recent progress schedule accepted by City. Recoverable Costs will not include home office overhead or lost profit.
(G) Request for Extension of Contract Time or Recoverable Costs. A request for an extension of Contract Time or any associated Recoverable Costs must be submitted in writing to City within ten calendar days of the date the delay is first encountered, even if the duration of the delay is not yet known at that time, or any entitlement to the Contract Time extension or to the Recoverable Costs will be deemed waived. In addition to complying with the requirements of this Article 5, the request must be submitted in compliance with the Change Order request procedures in Article 6 below. Strict compliance with these requirements is necessary to ensure that any delay or consequences of delay may be mitigated as soon as possible, and to facilitate costefficient administration of the Project and timely performance of the Work. Any request for an extension of Contract Time or Recoverable Costs that does not strictly comply with all of the requirements of Article 5 and Article 6 will be deemed waived. (1) Required Contents. The request must include a detailed description of the cause(s) of the delay and must also describe the measures that Contractor has taken to mitigate the delay and/or its effects, including efforts to mitigate the cost impact of the delay, such as by workforce management or by a change in sequencing. If the delay is still ongoing at the time the request is submitted, the request should also include Contractor’s plan for continued mitigation of the delay or its effects.
(2) Delay Days and Costs. The request must specify the number of days of Excusable Delay claimed or provide a realistic estimate if the duration of the delay is not yet known. If Contractor believes it is entitled to Recoverable Costs for Compensable Delay, the request must specify the amount and basis for the Recoverable Costs that are claimed or provide a realistic estimate if the amount is not yet known. Any estimate of delay duration or cost must be updated in writing and submitted with all required supporting documentation as soon as the actual time and cost is known. The maximum extension of Contract Time will be the number of days, if any, by which an Excusable Delay or a Compensable Delay exceeds any concurrent Non-Excusable Delay. Contractor is entitled to an extension of Contract Time, or compensation for Recoverable Costs, only if, and only to the extent that, such delay will unavoidably delay Final Completion. (3) Supporting Documentation. The request must also include any and all supporting documentation necessary to evidence the delay and its actual 207
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impacts, including scheduling and cost impacts with a time impact analysis using critical path methodology and demonstrating the unavoidable delay to Final Completion. The time impact analysis must be submitted in a form or format acceptable to City.
(4) Burden of Proof. Contractor has the burden of proving that: the delay was an Excusable Delay or Compensable Delay, as defined above; Contractor has fully complied with its scheduling obligations in Section 5.2, Schedule Requirements; Contractor has made reasonable efforts to mitigate the delay and its schedule and cost impacts; the delay will unavoidably result in delaying Final Completion; and any Recoverable Costs claimed by Contractor were actually incurred and were reasonable under the circumstances.
(5) Legal Compliance. Nothing in this Section 5.3 is intended to require the waiver, alteration, or limitation of the applicability of Public Contract Code § 7102. (6) No Waiver. Any grant of an extension of Contract Time, or compensation for Recoverable Costs due to Compensable Delay, will not operate as a waiver of City’s right to assess liquidated damages for Non-Excusable Delay. (7) Dispute Resolution. In the event of a dispute over entitlement to an extension of Contract Time or compensation for Recoverable Costs, Contractor may not stop Work pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work. Contractor’s sole recourse for an unresolved dispute based on City’s rejection of a Change Order request for an extension of Contract Time or compensation for Recoverable Costs is to comply with the dispute resolution provisions set forth in Article 12 below.

5.4 Liquidated Damages. It is expressly understood that if Final Completion is not achieved within the Contract Time, City will suffer damages from the delay that are difficult to determine and accurately specify. Pursuant to Public Contract Code § 7203, if Contractor fails to achieve Final Completion within the Contract Time due to Contractor’s NonExcusable Delay, City will charge Contractor in the amount specified in the Contract for each calendar day that Final Completion is delayed beyond the Contract Time, as liquidated damages and not as a penalty. Any waiver of accrued liquidated damages, in whole or in part, is subject to approval of the City Council or its authorized delegee. (A) Liquidated Damages. Liquidated damages will not be assessed for any Excusable Delay or Compensable Delay, as set forth above. (B) Milestones. Liquidated damages may also be separately assessed for failure to meet milestones specified elsewhere in the Contract Documents. (C) Setoff. City is entitled to deduct the amount of liquidated damages assessed against any payments otherwise due to Contractor, including progress payments, Final Payment, or unreleased retention. If there are insufficient Contract funds remaining to cover the full amount of liquidated damages assessed, City is entitled to recover the balance from Contractor or its performance bond surety. (D) Occupancy or Use. Occupancy or use of the Project in whole or in part prior to Final Completion does not constitute City’s acceptance of the Project and will not operate as a waiver of City’s right to assess liquidated damages for Contractor’s Non-Excusable Delay in achieving Final Completion.
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(E) Other Remedies. City’s right to liquidated damages under this Section applies only to damages arising from Contractor’s Non-Excusable Delay or failure to complete the Work within the Contract Time. City retains its right to pursue all other remedies under the Contract for other types of damage, including damage to property or persons, costs or diminution in value from defective materials or workmanship, costs to repair or complete the Work, or other liability caused by Contractor.

Article 6 - Contract Modification

6.1 Contract Modification. Subject to the limited exception set forth in subsection (D) below, any change in the Work or the Contract Documents, including the Contract Price or Contract Time, will not be a valid and binding change to the Contract unless it is formalized in a Change Order, including a “no-cost” Change Order or a unilateral Change Order. Changes in the Work pursuant to this Article 6 will not operate to release, limit, or abridge Contractor’s warranty obligations pursuant to Article 11 or any obligations of Contractor’s bond sureties.
(A) City-Directed Changes. City may direct changes in the scope or sequence of Work or the requirements of the Contract Documents, without invalidating the Contract.

Such changes may include Extra Work as set forth in subsection (C) below, or deletion or modification of portions of the Work. Contractor must promptly comply with City-directed changes in the Work in accordance with the original Contract Documents, even if Contractor and City have not yet reached agreement as to adjustments to the Contract Price or Contract Time for the change in the Work or for the Extra Work. Contractor is not entitled to extra compensation for cost savings resulting from “value engineering” pursuant to Public Contract Code § 7101, except to the extent authorized in advance by City in writing, and subject to any applicable procedural requirements for submitting a proposal for value engineering cost savings.
(B) Disputes. In the event of a dispute over entitlement to or the amount of a change in Contract Time or a change in Contract Price related to a City-directed change in the Work, Contractor must perform the Work as directed and may not delay its Work or cease Work pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work, including the Work in dispute. Likewise, in the event that City and Contractor dispute whether a portion or portions of the Work are already required by the Contract Documents or constitute Extra Work, or otherwise dispute the interpretation of any portion(s) of the Contract Documents, Contractor must perform the Work as directed and may not delay its Work or cease Work pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work, including the Work in dispute, as directed by City. If Contractor refuses to perform the Work in dispute, City may, acting in its sole discretion, elect to delete the Work from the Contract and reduce the Contract Price accordingly, and self-perform the Work or direct that the Work be performed by others. Alternatively, City may elect to terminate the Contract for convenience or for cause. Contractor’s sole recourse for an unresolved dispute related to changes in the Work or performance of any Extra Work is to comply with the dispute resolution provisions set forth in Article 12, below.
(C) Extra Work. City may direct Contractor to perform Extra Work related to the Project. Contractor must promptly perform any Extra Work as directed or authorized by City in accordance with the original Contract Documents, even if Contractor and City have not yet reached agreement on adjustments to the Contract Price or Contract Time for such Extra Work. If Contractor believes it is necessary to perform Extra Work due to changed conditions, Contractor must promptly notify the Engineer in writing, specifically identifying the Extra Work and the reason(s) the Contractor believes it is Extra Work. This 209
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notification requirement does not constitute a Change Order request pursuant to Section

6.2, below. Contractor must maintain detailed daily records that itemize the cost of each element of Extra Work, and sufficiently distinguish the direct cost of the Extra Work from the cost of other Work performed. For each day that Contractor performs Extra Work, or Work that Contractor contends is Extra Work, Contractor must submit no later than the following Working Day, a daily report of the Extra Work performed that day and the related costs, together with copies of certified payroll, invoices, and other documentation substantiating the costs (“Extra Work Report”). The Engineer will make any adjustments to Contractor’s Extra Work Report(s) based on the Engineer’s records of the Work. When an Extra Work Report(s) is agreed on and signed by both City and Contractor, the Extra Work Report(s) will become the basis for payment under a duly authorized and signed Change Order. Failure to submit the required documentation by close of business on the next Working Day is deemed a full and complete waiver for any change in the Contract Price or Contract Time for any Extra Work performed that day. (D) Minor Changes and RFIs. Minor field changes, including RFI replies from City, that do not affect the Contract Price or Contract Time and that are approved by the Engineer acting within his or her scope of authority, do not require a Change Order. By executing an RFI reply from City, Contractor agrees that it will perform the Work as clarified therein, with no change to the Contract Price or Contract Time. (E) Remedy for Non-Compliance. Contractor’s failure to promptly comply with a City-directed change is deemed a material breach of the Contract, and in addition to all other remedies available to it, City may, at its sole discretion, hire another contractor or use its own forces to complete the disputed Work at Contractor’s sole expense, and may deduct the cost from the Contract Price.

6.2 Contractor Change Order Requests. Contractor must submit a request or proposal for a change in the Work, compensation for Extra Work, or a change in the Contract Price or Contract Time as a written Change Order request or proposal. (A) Time for Submission. Any request for a change in the Contract Price or the Contract Time must be submitted in writing to the Engineer within ten calendar days of the date that Contractor first encounters the circumstances, information or conditions giving rise to the Change Order request, even if the total amount of the requested change in the Contract Price or impact on the Contract Time is not yet known at that time. If City requests that Contractor propose the terms of a Change Order, unless otherwise specified in City’s request, Contractor must provide the Engineer with a written proposal for the change in the Contract Price or Contract Time within five working days of receiving City’s request, in a form satisfactory to the Engineer. (B) Required Contents. Any Change Order request or proposal submitted by Contractor must include a complete breakdown of actual or estimated costs and credits, and must itemize labor, materials, equipment, taxes, insurance, subcontract amounts, and, if applicable, Extra Work Reports. Any estimated cost must be updated in writing as soon as the actual amount is known.
(C) Required Documentation. All claimed costs must be fully documented, and any related request for an extension of time or delay-related costs must be included at that time and in compliance with the requirements of Article 5 of the General Conditions.

Upon request, Contractor must permit City to inspect its original and unaltered bidding records, subcontract agreements, subcontract change orders, purchase orders, invoices, or receipts associated with the claimed costs.
(D) Required Form. Contractor must use City’s form(s) for submitting all Change Order requests or proposals, unless otherwise specified by City. 210
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(E) Certification. All Change Order requests must be signed by Contractor and must include the following certification:
“The undersigned Contractor certifies under penalty of perjury that its statements and representations in this Change Order request are true and correct. Contractor warrants that this Change Order request is comprehensive and complete as to the Work or changes referenced herein, and agrees that any known or foreseeable costs, expenses, or time extension requests not included herein, are deemed waived.”

6.3 Adjustments to Contract Price. The amount of any increase or decrease in the Contract Price will be determined based on one of the following methods listed below, in the order listed with unit pricing taking precedence over the other methods. Markup applies only to City-authorized time and material Work, and does not apply to any other payments to Contractor. For Work items or components that are deleted in their entirety, Contractor will only be entitled to compensation for those direct, actual, and documented costs (including restocking fees), reasonably incurred before Contractor was notified of the City’s intent to delete the Work, with no markup for overhead, profit, or other indirect costs.
(A) Unit Pricing. Amounts previously provided by Contractor in the form of unit prices, either in a bid schedule or in a post-award schedule of values pursuant to Section

8.1, Schedule of Values, will apply to determine the price for the affected Work, to the extent applicable unit prices have been provided for that type of Work. No additional markup for overhead, profit, or other indirect costs will be added to the calculation. (B) Lump Sum. A mutually agreed upon, all-inclusive lump sum price for the affected Work with no additional markup for overhead, profit, or other indirect costs. (C) Time and Materials. On a time and materials basis, if and only to the extent compensation on a time and materials basis is expressly authorized by City in advance of Contractor’s performance of the Work and subject to any not-to-exceed limit. Time and materials compensation for increased costs or Extra Work (but not decreased costs or deleted Work), will include allowed markup for overhead, profit, and other indirect costs, calculated as the total of the following sums, the cumulative total of which may not exceed the maximum markup rate of 15%:
(1) All direct labor costs provided by the Contractor, excluding superintendence, project management, or administrative costs, plus 15% markup; (2) All direct material costs provided by the Contractor, including sales tax, plus 15% markup;
(3) All direct plant and equipment rental costs provided by the Contractor, plus 15% markup;
(4) All direct additional subcontract costs plus 10% markup for Work performed by Subcontractors; and
(5) Increased bond or insurance premium costs computed at 1.5% of total of the previous four sums.

6.4 Unilateral Change Order. If the parties dispute the terms of a proposed Change Order, including disputes over the amount of compensation or extension of time that Contractor has requested, the value of deleted or changed Work, what constitutes Extra Work, or 211
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quantities used, City may elect to issue a unilateral Change Order, directing performance of the Work, and authorizing a change in the Contract Price or Contract Time for the adjustment to compensation or time that the City believes is merited. Contractor’s sole recourse to dispute the terms of a unilateral Change Order is to submit a timely Claim pursuant to Article 12, below.

6.5 Non-Compliance Deemed Waiver. Contractor waives its entitlement to any increase in the Contract Price or Contract Time if Contractor fails to fully comply with the provisions of this Article. Contractor will not be paid for unauthorized Extra Work.

Article 7 - General Construction Provisions

7.1 Permits, Fees, Business License, and Taxes.
(A) Permits, Fees, and City Business License. Contractor must obtain and pay for all permits, fees, and licenses required to perform the Work, including a City business license. Contractor must cooperate with and provide notifications to all government agencies with jurisdiction over the Project, as may be required. Contractor must provide City with copies of all records of permits and permit applications, payment of required fees, and any licenses required for the Work.
(B) Taxes. Contractor must pay for all taxes on labor, material and equipment, except Federal Excise Tax to the extent that City is exempt from Federal Excise Tax.

7.2 Temporary Facilities. Contractor must provide, at Contractor’s sole expense, any and all temporary facilities for the Project, including an onsite staging area for materials and equipment, a field office, sanitary facilities, utilities, storage, scaffolds, barricades, walkways, and any other temporary structure required to safely perform the Work along with any incidental utility services. The location of all temporary facilities must be approved by the City prior to installation. Temporary facilities must be safe and adequate for the intended use and installed and maintained in accordance with Laws and the Contract Documents. Contractor must fence and screen the Project site and, if applicable, any separate Worksites, including the staging area, and its operation must minimize inconvenience to neighboring properties. Additional provisions pertaining to temporary facilities may be included in the Specifications or Special Conditions. (A) Utilities. Contractor must install and maintain the power, water, sewer and all other utilities required for the Project site, including the piping, wiring, internet and wifi connections, and any related equipment necessary to maintain the temporary facilities. (B) Removal and Repair. Contractor must promptly remove all such temporary facilities when they are no longer needed or upon completion of the Work, whichever comes first. Contractor must promptly repair any damage to City’s property or to other property caused by the installation, use, or removal of the temporary facilities, and must promptly restore the property to its original or intended condition.

7.3 Noninterference and Site Management. Contractor must avoid interfering with City’s use of its property at or adjacent to the Project site, including use of roadways, entrances, parking areas, walkways, and structures. Contractor must also minimize disruption of access to private property in the Project vicinity. Contractor must coordinate with affected property owners, tenants, and businesses, and maintain some vehicle and pedestrian access to their residences or properties at all times. Temporary access ramps, fencing or other measures must be provided as needed. Before blocking access to a private driveway or parking lot, Contractor must provide effective notice to the affected parties at least 48 hours in advance of the pending closure and allow them to remove vehicles. 212
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Private driveways, residences and parking lots must have access to a roadway during non-Work hours.
(A) Offsite Acquisition. Unless otherwise provided by City, Contractor must acquire, use and dispose of, at its sole expense, any Worksites, licenses, easements, and temporary facilities necessary to access and perform the Work. (B) Offsite Staging Area and Field Office. If additional space beyond the Project site is needed, such as for the staging area or the field office, Contractor may need to make arrangements with the nearby property owner(s) to secure the space. Before using or occupying any property owned by a third party, Contractor must provide City with a copy of the necessary license agreement, easement, or other written authorization from the property owner, together with a written release from the property owner holding City harmless from any related liability, in a form acceptable to the City Attorney. (C) Traffic Management. Contractor must provide traffic management and traffic controls as specified in the Contract Documents, as required by Laws, and as otherwise required to ensure public and worker safety, and to avoid interference with public or private operations or the normal flow of vehicular, bicycle, or pedestrian traffic.

7.4 Signs. No signs may be displayed on or about City’s property, except signage which is required by Laws or by the Contract Documents, without City’s prior written approval as to size, design, and location.

7.5 Project Site and Nearby Property Protections.
(A) General. Contractor is responsible at all times, on a 24-hour basis and at its sole cost, for protecting the Work, the Project site, and the materials and equipment to be incorporated into the Work, until the City has accepted the Project, excluding any exceptions to acceptance, if any. Except as specifically authorized by City, Contractor must confine its operations to the area of the Project site indicated in the Plans and Specifications. Contractor is liable for any damage caused by Contractor or its Subcontractors to the Work, City’s property, the property of adjacent or nearby property owners and the work or personal property of other contractors working for City, including damage related to Contractor’s failure to adequately secure the Work or any Worksite. (1) Subject to City’s approval, Contractor will provide and install safeguards to protect the Work; any Worksite, including the Project site; City’s real or personal property and the real or personal property of adjacent or nearby property owners, including plant and tree protections.
(2) City wastewater systems may not be interrupted. If the Work disrupts existing sewer facilities, Contractor must immediately notify City and establish a plan, subject to City’s approval, to convey the sewage in closed conduits back into the sanitary sewer system. Sewage must not be permitted to flow in trenches or be covered by backfill.
(3) Contractor must remove with due care, and store at City’s request, any objects or material from the Project site that City will salvage or reuse at another location.
(4) If directed by Engineer, Contractor must promptly repair or replace any property damage, as specified by the Engineer. However, acting in its sole discretion, City may elect to have the property damage remedied otherwise, and may deduct the cost to repair or replace the damaged property from payment otherwise due to Contractor.
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(5) Contractor will not permit any structure or infrastructure to be loaded in a manner that will damage or endanger the integrity of the structure or infrastructure.
(B) Securing Project Site. After completion of Work each day, Contractor must secure the Project site and, to the extent feasible, make the area reasonably accessible to the public unless City approves otherwise. All excess materials and equipment not protected by approved traffic control devices must be relocated to the staging area or demobilized. Trench spoils must be hauled off the Project site daily and open excavations must be protected with steel plates. Contractor and Subcontractor personnel may not occupy or use the Project site for any purpose during non-Work hours, except as may be provided in the Contract Documents or pursuant to prior written authorization from City. (C) Unforeseen Conditions. If Contractor encounters facilities, utilities, or other unknown conditions not shown on or reasonably inferable from the Plans or apparent from inspection of the Project site, Contractor must immediately notify the City and promptly submit a Request for Information to obtain further directions from the Engineer.

Contractor must avoid taking any action which could cause damage to the facilities or utilities pending further direction from the Engineer. The Engineer’s written response will be final and binding on Contractor. If the Engineer’s subsequent direction to Contractor affects Contractor’s cost or time to perform the Work, Contractor may submit a Change Order request as set forth in Article 6 above.
(D) Support; Adjacent Properties. Contractor must provide, install, and maintain all shoring, bracing, and underpinning necessary to provide support to City’s property and adjacent properties and improvements thereon. Contractor must provide notifications to adjacent property owners as may be required by Laws. See also, Section 7.15, Trenching of Five Feet or More.
(E) Notification of Property Damage. Contractor must immediately notify the City of damage to any real or personal property resulting from Work on the Project. Contractor must immediately provide a written report to City of any such property damage in excess of $500 (based on estimated cost to repair or replace) within 24 hours of the occurrence.

The written report must include: (1) the location and nature of the damage, and the owner of the property, if known; (2) the name and address of each employee of Contractor or any Subcontractor involved in the damage; (3) a detailed description of the incident, including precise location, time, and names and contact information for known witnesses; and (4) a police or first responder report, if applicable. If Contractor is required to file an accident report with another government agency, Contractor will provide a copy of the report to City.

7.6 Materials and Equipment.
(A) General. Unless otherwise specified, all materials and equipment required for the Work must be new, free from defects, and of the best grade for the intended purpose, and furnished in sufficient quantities to ensure the proper and expeditious performance of the Work. Contractor must employ measures to preserve the specified quality and fitness of the materials and equipment. Unless otherwise specified, all materials and equipment required for the Work are deemed to include all components required for complete installation and intended operation and must be installed in accordance with the manufacturer’s recommendations or instructions. Contractor is responsible for all shipping, handling, and storage costs associated with the materials and equipment required for the Work. Contractor is responsible for providing security and protecting the Work and all of the required materials, supplies, tools and equipment at Contractor’s sole cost until City has formally accepted the Project as set forth in Section 11.1, Final 214
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Completion. Contractor will not assign, sell, mortgage, or hypothecate any materials or equipment for the Project, or remove any materials or equipment that have been installed or delivered.
(B) City-Provided. If the Work includes installation of materials or equipment to be provided by City, Contractor is solely responsible for the proper examination, handling, storage, and installation in accordance with the Contract Documents. Contractor must notify City of any defects discovered in City-provided materials or equipment, sufficiently in advance of scheduled use or installation to afford adequate time to procure replacement materials or equipment as needed. Contractor is solely responsible for any loss of or damage to such items which occurs while the items are in Contractor’s custody and control, the cost of which may be offset from the Contract Price and deducted from any payment(s) due to Contractor.
(C) Intellectual Property Rights. Contractor must, at its sole expense, obtain any authorization or license required for use of patented or copyright-protected materials, equipment, devices or processes that are incorporated into the Work. Contractor’s indemnity obligations in Article 4 apply to any claimed violation of intellectual property rights in violation of this provision.

7.7 Substitutions.
(A) “Or Equal.” Any Specification designating a material, product, or thing (collectively, “item”) or service by specific brand or trade name, followed by the words “or equal,” is intended only to indicate the quality and type of item or service desired, and Contractor may request use of any equal item or service. Unless otherwise stated in the Specifications, any reference to a specific brand or trade name for an item or service that is used solely for the purpose of describing the type of item or service desired, will be deemed to be followed by the words “or equal.” A substitution will only be approved if it is a true “equal” item or service in every aspect of design, function, and quality, as determined by City, including dimensions, weight, maintenance requirements, durability, fit with other elements, and schedule impacts.
(B) Request for Substitution. A post-award request for substitution of an item or service must be submitted in writing to the Engineer for approval in advance, within the applicable time period provided in the Contract Documents. If no time period is specified, the substitution request may be submitted any time within 35 days after the date of award of the Contract, or sufficiently in advance of the time needed to avoid delay of the Work, whichever is earlier.
(C) Substantiation. Any available data substantiating the proposed substitute as an equal item or service must be submitted with the written request for substitution.

Contractor’s failure to timely provide all necessary substantiation, including any required test results as soon as they are available, is grounds for rejection of the proposed substitution, without further review.
(D) Burden of Proving Equality. Contractor has the burden of proving the equality of the proposed substitution at Contractor’s sole cost. City has sole discretion to determine whether a proposed substitution is equal, and City’s determination is final.

(E) Approval or Rejection. If the proposed substitution is approved, Contractor is solely responsible for any additional costs or time associated with the substituted item or service. If the proposed substitution is rejected, Contractor must, without delay, install the item or use the service as specified by City.
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(F) Contractor’s Obligations. City’s approval of a proposed substitution will not relieve Contractor from any of its obligations under the Contract Documents. In the event Contractor makes an unauthorized substitution, Contractor will be solely responsible for all resulting cost impacts, including the cost of removal and replacement and the impact to other design elements.

7.8 Testing and Inspection.
(A) General. All materials, equipment, and workmanship used in the Work are subject to inspection and testing by City at all times and at all locations during construction and/or fabrication, including at any Worksite, shops, and yards. All manufacturers’ application or installation instructions must be provided to the Inspector at least ten days prior to the first such application or installation. Contractor must, at all times, make the Work available for testing or inspection. Neither City’s inspection or testing of Work, nor its failure to do so, operate to waive or limit Contractor’s duty to complete the Work in accordance with the Contract Documents. (B) Scheduling and Notification. Contractor must cooperate with City in coordinating the inspections and testing. Contractor must submit samples of materials, at Contractor’s expense, and schedule all tests required by the Contract Documents in time to avoid any delay to the progress of the Work. Contractor must notify the Engineer no later than noon of the Working Day before any inspection or testing and must provide timely notice to the other necessary parties as specified in the Contract Documents. If Contractor schedules an inspection or test beyond regular Work hours, or on a Saturday, Sunday, or recognized City holiday, Contractor must notify the Engineer at least two Working Days in advance for approval. If approved, Contractor must reimburse City for the cost of the overtime inspection or testing. Such costs, including the City’s hourly costs for required personnel, may be deducted from payments otherwise due to Contractor. (C) Responsibility for Costs. City will bear the initial cost of inspection and testing to be performed by independent consultants retained by City, subject to the following exceptions:
(1) Contractor will be responsible for the costs of any subsequent inspections or tests which are required to substantiate compliance with the Contract Documents, and any associated remediation costs.
(2) Contractor will be responsible for inspection costs, at City’s hourly rates, for inspection time lost because the Work is not ready or Contractor fails to appear for a scheduled inspection.
(3) If any portion of the Work that is subject to inspection or testing is covered or concealed by Contractor prior to the inspection or testing, Contractor will bear the cost of making that portion of the Work available for the inspection or testing required by the Contract Documents, and any associated repair or remediation costs.
(4) Contractor is responsible for properly shoring all compaction test sites deeper than five feet below grade, as required under Section 7.15 below. (5) Any Work or material that is defective or fails to comply with the requirements of the Contract Documents must be promptly repaired, removed, replaced, or corrected by Contractor, at Contractor’s sole expense, even if that Work or material was previously inspected or included in a progress payment. 216
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(D) Contractor’s Obligations. Contractor is solely responsible for any delay occasioned by remediation of defective or noncompliant Work or material. Inspection or testing of the Work does not in any way relieve Contractor of its obligations to perform the Work as specified. Any Work done without the inspection(s) or testing required by the Contract Documents will be subject to rejection by City. (E) Distant Locations. If required off-site testing or inspection must be conducted at a location more than 100 miles from the Project site, Contractor is solely responsible for the additional travel costs required for testing and/or inspection at such locations. (F) Final Inspection. The provisions of this Section 7.8 also apply to final inspection under Article 11, Completion and Warranty Provisions.

7.9 Project Site Conditions and Maintenance. Contractor must at all times, on a 24-hour basis and at its sole cost, maintain the Project site and staging and storage areas in clean, neat, and sanitary condition and in compliance with all Laws pertaining to safety, air quality, and dust control. Adequate toilets must be provided, and properly maintained and serviced for all workers on the Project site, located in a suitably secluded area, subject to City’s prior approval. Contractor must also, on a daily basis and at its sole cost, remove and properly dispose of the debris and waste materials from the Project site. (A) Air Emissions Control. Contractor must not discharge smoke or other air contaminants into the atmosphere in violation of any Laws. Contractor must comply with all Laws, including the California Air Resources Board’s In-Use Off-Road Diesel-Fueled Fleets Regulation (13 CCR § 2449 et seq.).
(B) Dust and Debris. Contractor must minimize and confine dust and debris resulting from the Work. Contractor must abate dust nuisance by cleaning, sweeping, and immediately sprinkling with water excavated areas of dirt or other materials prone to cause dust, and within one hour after the Engineer notifies Contractor that an airborne nuisance exists. The Engineer may direct that Contractor provide an approved waterspraying truck for this purpose. If water is used for dust control, Contractor will only use the minimum necessary. Contractor must take all necessary steps to keep waste water out of streets, gutters, or storm drains. See Section 7.19, Environmental Control. If City determines that the dust control is not adequate, City may have the work done by others and deduct the cost from the Contract Price. Contractor will immediately remove any excess excavated material from the Project site and any dirt deposited on public streets. (C) Clean up. Before discontinuing Work in an area, Contractor must clean the area and remove all debris and waste along with the construction equipment, tools, machinery, and surplus materials.
(1) Except as otherwise specified, all excess Project materials, and the materials removed from existing improvements on the Project site with no salvage value or intended reuse by City, will be Contractor’s property.
(2) Hauling trucks and other vehicles leaving the Project site must be cleaned of exterior mud or dirt before traveling on City streets. Materials and loose debris must be delivered and loaded to prevent dropping materials or debris. Contractor must immediately remove spillage from hauling on any publicly traveled way.

Streets affected by Work on the Project must be kept clean by street sweeping. (D) Disposal. Contractor must dispose of all Project debris and waste materials in a safe and legal manner. Contractor may not burn or bury waste materials on the Project site. Contractor will not allow any dirt, refuse, excavated material, surplus concrete or 217
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mortar, or any associated washings, to be disposed of onto streets, into manholes or into the storm drain system.
(E) Completion. At the completion of the Work, Contractor must remove from the Project site all of its equipment, tools, surplus materials, waste materials and debris, presenting a clean and neat appearance. Before demobilizing from the Project site, Contractor must ensure that all surfaces are cleaned, sealed, waxed, or finished as applicable, and that all marks, stains, paint splatters, and the like have been properly removed from the completed Work and the surrounding areas. Contractor must ensure that all parts of the construction are properly joined with the previously existing and adjacent improvements and conditions. Contractor must provide all cutting, fitting and patching needed to accomplish that requirement. Contractor must also repair or replace all existing improvements that are damaged or removed during the Work, both on and off the Project site, including curbs, sidewalks, driveways, fences, signs, landscaping, utilities, street surfaces and structures. Repairs and replacements must be at least equal to the previously existing improvements, and the condition, finish and dimensions must match the previously existing improvements. Contractor must restore to original condition all property or items that are not designated for alteration under the Contract Documents and leave each Worksite clean and ready for occupancy or use by City. (F) Non-Compliance. If Contractor fails to comply with its maintenance and cleanup obligations or any City clean up order, City may, acting in its sole discretion, elect to suspend the Work until the condition(s) is corrected with no increase in the Contract Time or Contract Price, or undertake appropriate cleanup measures without further notice and deduct the cost from any amounts due or to become due to Contractor.

7.10 Instructions and Manuals. Contractor must provide to City three copies each of all instructions and manuals required by the Contract Documents, unless otherwise specified. These must be complete as to drawings, details, parts lists, performance data, and other information that may be required for City to easily maintain and service the materials and equipment installed for this Project.
(A) Submittal Requirements. All manufacturers’ application or installation instructions must be provided to City at least ten days prior to the first such application.

The instructions and manuals, along with any required guarantees, must be delivered to City for review.
(B) Training. Contractor or its Subcontractors must train City’s personnel in the operation and maintenance of any complex equipment or systems as a condition precedent to Final Completion, if required in the Contract Documents.

7.11 As-built Drawings. Contractor and its Subcontractors must prepare and maintain at the Project site a detailed, complete and accurate as-built set of the Plans which will be used solely for the purpose of recording changes made in any portion of the original Plans in order to create accurate record drawings at the end of the Project. (A) Duty to Update. The as-built drawings must be updated as changes occur, on a daily basis if necessary. City may withhold the estimated cost for City to have the as-built drawings prepared from payments otherwise due to Contractor, until the as-built drawings are brought up to date to the satisfaction of City. Actual locations to scale must be identified on the as-built drawings for all runs of mechanical and electrical work, including all site utilities installed underground, in walls, floors, or otherwise concealed. Deviations from the original Plans must be shown in detail. The exact location of all main runs, whether piping, conduit, ductwork or drain lines, must be shown by dimension and elevation. The location of all buried pipelines, appurtenances, or other improvements 218
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must be represented by coordinates and by the horizontal distance from visible aboveground improvements. (B) Final Completion. Contractor must verify that all changes in the Work are depicted in the as-built drawings and must deliver the complete set of as-built drawings to the Engineer for review and acceptance as a condition precedent to Final Completion and Final Payment.

7.12 Existing Utilities.
(A) General. The Work may be performed in developed, urban areas with existing utilities, both above and below ground, including utilities identified in the Contract Documents or in other informational documents or records. Contractor must take due care to locate identified or reasonably identifiable utilities before proceeding with trenching, excavation, or any other activity that could damage or disrupt existing utilities.

This may include excavation with small equipment, potholing, or hand excavation, and, if practical, using white paint or other suitable markings to delineate the area to be excavated. Except as otherwise provided herein, Contractor will be responsible for costs resulting from damage to identified or reasonably identifiable utilities due to Contractor’s negligence or failure to comply with the Contract Documents, including the requirements in this Article 7.
(B) Unidentified Utilities. Pursuant to Government Code § 4215, if, during the performance of the Work, Contractor discovers utility facilities not identified by City in the Contract Documents, Contractor must immediately provide written notice to City and the utility. City assumes responsibility for the timely removal, relocation, or protection of existing main or trunkline utility facilities located on the Project site if those utilities are not identified in the Contract Documents. Contractor will be compensated in accordance with the provisions of the Contract Documents for the costs of locating, repairing damage not due to Contractor’s failure to exercise reasonable care, and removing or relocating utility facilities not indicated in the Plans or Specifications with reasonable accuracy, and for equipment on the Project necessarily idled during such work. Contractor will not be assessed liquidated damages for delay in completion of the Work, to the extent the delay was caused by City’s failure to provide for removal or relocation of the utility facilities.

7.13 Notice of Excavation. Contractor must comply with all applicable requirements in Government Code § 4216 et seq., which are incorporated by reference herein..

7.14 Trenching and Excavations of Four Feet or More. As required by Public Contract Code § 7104, if the Work includes digging trenches or other excavations that extend deeper than four feet below the surface, the provisions in this Section apply to the Work and the Project.

(A) Duty to Notify. Contractor must promptly, and before the following conditions are disturbed, provide written notice to City if Contractor finds any of the following conditions:
(1) Material that Contractor believes may be a hazardous waste, as defined in § 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with the provisions of existing Laws;
(2) Subsurface or latent physical conditions at the Project site differing from those indicated by information about the Project site made available to bidders prior to the deadline for submitting bids; or
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(3) Unknown physical conditions at the Project site of any unusual nature, materially different from those ordinarily encountered and generally recognized as inherent in work of the character required by the Contract Documents. (B) City Investigation. City will promptly investigate the conditions and if City finds that the conditions materially differ from those indicated, apparent, or reasonably inferred from information about the Project site made available to bidders, or involve hazardous waste, and cause a decrease or increase in Contractor’s cost of, or the time required for, performance of any part of the Work, City will issue a Change Order. (C) Disputes. In the event that a dispute arises between City and Contractor regarding any of the conditions specified in subsection (B) above, or the terms of a Change Order issued by City, Contractor will not be excused from completing the Work within the Contract Time, but must proceed with all Work to be performed under the Contract. Contractor will retain any and all rights provided either by the Contract or by Laws which pertain to the resolution of disputes between Contractor and City.

7.15 Trenching of Five Feet or More. As required by Labor Code § 6705, if the Contract Price exceeds $25,000 and the Work includes the excavation of any trench or trenches of five feet or more in depth, a detailed plan must be submitted to City for acceptance in advance of the excavation. The detailed plan must show the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation. If the plan varies from the shoring system standards, it must be prepared by a California registered civil or structural engineer. Use of a shoring, sloping, or protective system less effective than that required by the Construction Safety Orders is prohibited.

7.16 New Utility Connections. Except as otherwise specified, City will pay connection charges and meter costs for new permanent utilities required by the Contract Documents, if any. Contractor must notify City sufficiently in advance of the time needed to request service from each utility provider so that connections and services are initiated in accordance with the Project schedule.

7.17 Lines and Grades. Contractor is required to use any benchmark provided by the Engineer. Unless otherwise specified in the Contract Documents, Contractor must provide all lines and grades required to execute the Work. Contractor must also provide, preserve, and replace if necessary, all construction stakes required for the Project. All stakes or marks must be set by a California licensed surveyor or a California registered civil engineer. Contractor must notify the Engineer of any discrepancies found between Contractor’s staking and grading and information provided by the Contract Documents.

Upon completion, all Work must conform to the lines, elevations, and grades shown in the Plans, including any changes directed by a Change Order.

7.18 Historic or Archeological Items.
(A) Contractor’s Obligations. Contractor must ensure that all persons performing Work at the Project site are required to immediately notify the Project Manager, upon discovery of any potential historic or archeological items, including historic or prehistoric ruins, a burial ground, archaeological or vertebrate paleontological site, including fossilized footprints or other archeological, paleontological or historical feature on the Project site (collectively, “Historic or Archeological Items”). (B) Discovery; Cessation of Work. Upon discovery of any potential Historic or Archeological Items, Work must be stopped within an 85-foot radius of the find and may not resume until authorized in writing by City. If required by City, Contractor must assist in 220
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protecting or recovering the Historic or Archeological Items, with any such assistance to be compensated as Extra Work on a time and materials basis under Article 6, Contract Modification. At City’s discretion, a suspension of Work required due to discovery of Historic or Archeological Items may be treated as Excusable Delay pursuant to Article 5, or as a suspension for convenience under Article 13.

7.19 Environmental Control. Contractor must not pollute any drainage course or its tributary inlets with fuels, oils, bitumens, acids, insecticides, herbicides or other harmful materials.

Contractor must prevent the release of any hazardous material or hazardous waste into the soil or groundwater, and prevent the unlawful discharge of pollutants into City’s storm drain system and watercourses as required below. Contractor and its Subcontractors must at all times in the performance of the Work comply with all Laws concerning pollution of waterways.
(A) Stormwater Permit. Contractor must comply with all applicable conditions of the State Water Resources Control Board National Pollutant Discharge Elimination System General Permit for Waste Discharge Requirements for Discharges of Stormwater Runoff Associated with Construction Activity (“Stormwater Permit”). (B) Contractor’s Obligations. If required for the Work, a copy of the Stormwater Permit is on file in City’s principal administrative offices, and Contractor must comply with it without adjustment of the Contract Price or the Contract Time. Contractor must timely and completely submit required reports and monitoring information required by the conditions of the Stormwater Permit. Contractor also must comply with all other Laws governing discharge of stormwater, including applicable municipal stormwater management programs.

7.20 Noise Control. Contractor must comply with all applicable noise control Laws. Noise control requirements apply to all equipment used for the Work or related to the Work, including trucks, transit mixers or transient equipment that may or may not be owned by Contractor.

7.21 Mined Materials. Pursuant to the Surface Mining and Reclamation Act of 1975, Public Resources Code § 2710 et seq., any purchase of mined materials, such as construction aggregate, sand, gravel, crushed stone, road base, fill materials, and any other mineral materials must originate from a surface mining operation included on the AB 3098 List, which may be accessed online at: https://www.conservation.ca.gov/smgb/Pages/AB3098-List.aspx.

Article 8 - Payment

8.1 Schedule of Values. Prior to submitting its first application for payment, Contractor must prepare and submit to the Project Manager a schedule of values apportioned to the various divisions and phases of the Work, including mobilization and demobilization. If a Bid Schedule was submitted with Contractor’s bid, the amounts in the schedule of values must be consistent with the Bid Schedule. Each line item contained in the schedule of values must be assigned a value such that the total of all items equals the Contract Price.

The items must be sufficiently detailed to enable accurate evaluation of the percentage of completion claimed in each application for payment, and the assigned value consistent with any itemized or unit pricing submitted with Contractor’s bid. (A) Measurements for Unit Price Work. Materials and items of Work to be paid for on the basis of unit pricing will be measured according to the methods specified in the Contract Documents.
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(B) Deleted or Reduced Work. Contractor will not be compensated for Work that City has deleted or reduced in scope, except for any labor, material or equipment costs for such Work that Contractor reasonably incurred before Contractor learned that the Work could be deleted or reduced. Contractor will only be compensated for those actual, direct and documented costs incurred, and will not be entitled to any mark up for overhead or lost profits.

8.2 Progress Payments. Following the last day of each month, or as otherwise required by the Special Conditions or Specifications, Contractor will submit to the Project Manager a monthly application for payment for Work performed during the preceding month based on the estimated value of the Work performed during that preceding month. (A) Application for Payment. Each application for payment must be itemized to include labor, materials, and equipment incorporated into the Work, and materials and equipment delivered to the Project site, as well as authorized and approved Change Orders. Each payment application must be supported by the unit prices submitted with Contractor’s Bid Schedule and/or schedule of values and any other substantiating data required by the Contract Documents.
(B) Payment of Undisputed Amounts. City will pay the undisputed amount due within 30 days after Contractor has submitted a complete and accurate payment application, subject to Public Contract Code § 20104.50. City will deduct a percentage from each progress payment as retention, as set forth in Section 8.5, below, and may deduct or withhold additional amounts as set forth in Section 8.3, below.

8.3 Adjustment of Payment Application. City may adjust or reject the amount requested in a payment application, including application for Final Payment, in whole or in part, if the amount requested is disputed or unsubstantiated. Contractor will be notified in writing of the basis for the modification to the amount requested. City may also deduct or withhold from payment otherwise due based upon any of the circumstances and amounts listed below. Sums withheld from payment otherwise due will be released when the basis for that withholding has been remedied and no longer exists. (A) For Contractor’s unexcused failure to perform the Work as required by the Contract Documents, including correction or completion of punch list items, City may withhold or deduct an amount based on the City’s estimated cost to correct or complete the Work.
(B) For loss or damage caused by Contractor or its Subcontractors arising out of or relating to performance of the Work or any failure to protect the Project site, City may deduct an amount based on the estimated cost to repair or replace. (C) For Contractor’s failure to pay its Subcontractors and suppliers when payment is due, City may withhold an amount equal to the total of past due payments and may opt to pay that amount separately via joint check pursuant to Section 8.6(B), Joint Checks. (D) For Contractor’s failure to timely correct rejected, nonconforming, or defective Work, City may withhold or deduct an amount based on the City’s estimated cost to correct or complete the Work.
(E) For any unreleased stop notice, City may withhold 125% of the amount claimed. (F) For Contractor’s failure to submit any required schedule or schedule update in the manner specified or within the time specified in the Contract Documents, City may withhold an amount equal to five percent of the total amount requested until Contractor complies with its schedule submittal obligations.
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(G) For Contractor’s failure to maintain or submit as-built documents in the manner specified or within the time specified in the Contract Documents, City may withhold or deduct an amount based on the City’s cost to prepare the as-builts. (H) For Work performed without Shop Drawings that have been accepted by City, when accepted Shop Drawings are required before proceeding with the Work, City may deduct an amount based on the estimated cost to correct unsatisfactory Work or diminution in value.
(I) For fines, payments, or penalties assessed under the Labor Code, City may deduct from payments due to Contractor as required by Laws and as directed by the Division of Labor Standards Enforcement.
(J) For any other costs or charges that may be withheld or deducted from payments to Contractor, as provided in the Contract Documents, including liquidated damages, City may withhold or deduct such amounts from payment otherwise due to Contractor.

8.4 Early Occupancy. Neither City’s payment of progress payments nor its partial or full use or occupancy of the Project constitutes acceptance of any part of the Work.

8.5 Retention. City will retain five percent of the full amount due on each progress payment (i.e., the amount due before any withholding or deductions pursuant to Section 8.3, Adjustment of Payment Application), or the percentage stated in the Notice Inviting Bids, whichever is greater, as retention to ensure full and satisfactory performance of the Work.

Contractor is not entitled to any reduction in the rate of withholding at any time, nor to release of any retention before 35 days following City’s acceptance of the Project. (A) Substitution of Securities. As provided by Public Contract Code § 22300, Contractor may request in writing that it be allowed, at its sole expense, to substitute securities for the retention withheld by City. Any escrow agreement entered into pursuant to this provision must fully comply with Public Contract Code § 22300 and will be subject to approval as to form by City’s legal counsel. If City exercises its right to draw upon such securities in the event of default pursuant to section (7) of the statutory Escrow Agreement for Security Deposits in Lieu of Retention, pursuant to subdivision (g) of Public Contract Code § 22300 (“Escrow Agreement”), and if Contractor disputes that it is in default, its sole remedy is to comply with the dispute resolution procedures in Article 12 and the provisions therein. It is agreed that for purposes of this paragraph, an event of default includes City’s rights pursuant to these Contract Documents to withhold or deduct sums from retention, including withholding or deduction for liquidated damages, incomplete or defective Work, stop payment notices, or backcharges. It is further agreed that if any individual authorized to give or receive written notice on behalf of a party pursuant to section (10) of the Escrow Agreement are unavailable to give or receive notice on behalf of that party due to separation from employment, retirement, death, or other circumstances, the successor or delegee of the named individual is deemed to be the individual authorized to give or receive notice pursuant to section (10) of the Escrow Agreement.
(B) Release of Undisputed Retention. All undisputed retention, less any amounts that may be assessed as liquidated damages, retained for stop notices, or otherwise withheld pursuant to Section 8.3, Adjustment of Payment Application, will be released as Final Payment to Contractor no sooner than 35 days following recordation of the notice of completion, and no later than 60 days following acceptance of the Project by City’s governing body or authorized designee pursuant to Section 11.1(C), Acceptance, or, if the Project has not been accepted, no later than 60 days after the Project is otherwise considered complete pursuant to Public Contract Code § 7107(c). 223
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8.6 Payment to Subcontractors and Suppliers. Each month, Contractor must promptly pay each Subcontractor and supplier the value of the portion of labor, materials, and equipment incorporated into the Work or delivered to the Project site by the Subcontractor or supplier during the preceding month. Such payments must be made in accordance with the requirements of Laws pertaining to such payments, and those of the Contract Documents and applicable subcontract or supplier contract. (A) Withholding for Stop Notice. Pursuant to Civil Code § 9358, City will withhold 125% of the amount claimed by an unreleased stop notice, a portion of which may be retained by City for the costs incurred in handling the stop notice claim, including attorneys’ fees and costs, as authorized by law.
(B) Joint Checks. City reserves the right, acting in its sole discretion, to issue joint checks made payable to Contractor and a Subcontractor or supplier, if City determines this is necessary to ensure fair and timely payment for a Subcontractor or supplier who has provided services or goods for the Project. As a condition to release of payment by a joint check, the joint check payees may be required to execute a joint check agreement in a form provided or approved by the City Attorney’s Office. The joint check payees will be jointly and severally responsible for the allocation and disbursement of funds paid by joint check. Payment by joint check will not be construed to create a contractual relationship between City and a Subcontractor or supplier of any tier beyond the scope of the joint check agreement.

8.7 Final Payment. Contractor’s application for Final Payment must comply with the requirements for submitting an application for a progress payment as stated in Section

8.2, above. Corrections to previous progress payments, including adjustments to estimated quantities for unit priced items, may be included in the Final Payment. If Contractor fails to submit a timely application for Final Payment, City reserves the right to unilaterally process and issue Final Payment without an application from Contractor in order to close out the Project. For the purposes of determining the deadline for Claim submission pursuant to Article 12, the date of Final Payment is deemed to be the date that City acts to release undisputed retention as final payment to Contractor, or otherwise provides written notice to Contractor of Final Payment or that no undisputed funds remain available for Final Payment due to offsetting withholdings or deductions pursuant to Section 8.3, Adjustment of Payment Application. If the amount due from Contractor to City exceeds the amount of Final Payment, City retains the right to recover the balance from Contractor or its sureties.

8.8 Release of Claims. City may, at any time, require that payment of the undisputed portion of any progress payment or Final Payment be contingent upon Contractor furnishing City with a written waiver and release of all claims against City arising from or related to the portion of Work covered by those undisputed amounts subject to the limitations of Public Contract Code § 7100. Any disputed amounts may be specifically excluded from the release.

8.9 Warranty of Title. Contractor warrants that title to all work, materials, or equipment incorporated into the Work and included in a request for payment will pass over to City free of any claims, liens, or encumbrances upon payment to Contractor.

Article 9 - Labor Provisions

9.1 Discrimination Prohibited. Discrimination against any prospective or present employee engaged in the Work on grounds of race, color, ancestry, national origin, ethnicity, religion, sex, sexual orientation, age, disability, or marital status is strictly prohibited. 224
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Contractor and its Subcontractors are required to comply with all applicable Laws prohibiting discrimination, including the California Fair Employment and Housing Act (Govt. Code § 12900 et seq.), Government Code § 11135, and Labor Code §§ 1735, 1777.5, 1777.6, and 3077.5.

9.2 Labor Code Requirements.
(A) Eight Hour Day. Pursuant to Labor Code § 1810, eight hours of labor constitute a legal day’s work under this Contract.
(B) Penalty. Pursuant to Labor Code § 1813, Contractor will forfeit to City as a penalty, the sum of $25.00 for each day during which a worker employed by Contractor or any Subcontractor is required or permitted to work more than eight hours in any one calendar day or more than 40 hours per calendar week, except if such workers are paid overtime under Labor Code § 1815.
(C) Apprentices. Contractor is responsible for compliance with the requirements governing employment and payment of apprentices, as set forth in Labor Code § 1777.5, which is fully incorporated by reference.
(D) Notices. Pursuant to Labor Code § 1771.4, Contractor is required to post all job site notices prescribed by Laws.

9.3 Prevailing Wages. Each worker performing Work under this Contract that is covered under Labor Code §§ 1720, 1720.3, or 1720.9, including cleanup at the Project site, must be paid at a rate not less than the prevailing wage as defined in §§ 1771 and 1774 of the Labor Code. The prevailing wage rates are on file with the City and available online at http://www.dir.ca.gov/dlsr. Contractor must post a copy of the applicable prevailing rates at the Project site.
(A) Penalties. Pursuant to Labor Code § 1775, Contractor and any Subcontractor will forfeit to City as a penalty up to $200.00 for each calendar day, or portion thereof, for each worker paid less than the applicable prevailing wage rate. Contractor must also pay each worker the difference between the applicable prevailing wage rate and the amount actually paid to that worker.
(B) Federal Requirements. If this Project is subject to federal prevailing wage requirements in addition to California prevailing wage requirements, Contractor and its Subcontractors are required to pay the higher of the currently applicable state or federal prevailing wage rates.

9.4 Payroll Records. Contractor must comply with the provisions of Labor Code §§ 1771.4, 1776, and 1812 and all implementing regulations, which are fully incorporated by this reference, including requirements for monthly electronic submission of payroll records to the DIR.
(A) Contractor and Subcontractor Obligations. Contractor and each Subcontractor must keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed in connection with the Work. Each payroll record must contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
(1) The information contained in the payroll record is true and correct; and 225
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(2) Contractor or the Subcontractor has complied with the requirements of Labor Code §§ 1771, 1811, and 1815 for any Work performed by its employees on the Project.
(B) Certified Record. A certified copy of an employee’s payroll record must be made available for inspection or furnished to the employee or his or her authorized representative on request, to City, to the Division of Labor Standards Enforcement, to the Division of Apprenticeship Standards of the DIR, and as further required by the Labor Code.
(C) Enforcement. Upon notice of noncompliance with Labor Code § 1776, Contractor or Subcontractor has ten days in which to comply with the requirements of this section. If Contractor or Subcontractor fails to do so within the ten-day period, Contractor or Subcontractor will forfeit a penalty of $100.00 per day, or portion thereof, for each worker for whom compliance is required, until strict compliance is achieved. Upon request by the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement, these penalties will be withheld from payments then due to Contractor.

9.5 Labor Compliance. Pursuant to Labor Code § 1771.4, the Contract for this Project is subject to compliance monitoring and enforcement by the DIR.

Article 10 - Safety Provisions

10.1 Safety Precautions and Programs. Contractor and its Subcontractors are fully responsible for safety precautions and programs, and for the safety of persons and property in the performance of the Work. Contractor and its Subcontractors must at all times comply with all applicable health and safety Laws and seek to avoid injury, loss, or damage to persons or property by taking reasonable steps to protect its employees and other persons at any Worksite, materials and equipment stored on or off site, and property at or adjacent to any Worksite.
(A) Reporting Requirements. Contractor must immediately notify the City of any death, serious injury or illness resulting from Work on the Project. Contractor must immediately provide a written report to City of each recordable accident or injury occurring at any Worksite within 24 hours of the occurrence. The written report must include: (1) the name and address of the injured or deceased person; (2) the name and address of each employee of Contractor or of any Subcontractor involved in the incident; (3) a detailed description of the incident, including precise location, time, and names and contact information for known witnesses; and (4) a police or first responder report, if applicable. If Contractor is required to file an accident report with a government agency, Contractor will provide a copy of the report to City.
(B) Legal Compliance. Contractor’s safety program must comply with the applicable legal and regulatory requirements. Contractor must provide City with copies of all notices required by Laws.
(C) Contractor’s Obligations. Any damage or loss caused by Contractor arising from the Work which is not insured under property insurance must be promptly remedied by Contractor.
(D) Remedies. If City determines, in its sole discretion, that any part of the Work or Project site is unsafe, City may, without assuming responsibility for Contractor’s safety program, require Contractor or its Subcontractor to cease performance of the Work or to take corrective measures to City’s satisfaction. If Contractor fails to promptly take the required corrective measures, City may perform them and deduct the cost from the 226
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Contract Price. Contractor agrees it is not entitled to submit a Claim for damages, for an increase in Contract Price, or for a change in Contract Time based on Contractor’s compliance with City’s request for corrective measures pursuant to this provision.

10.2 Hazardous Materials. Unless otherwise specified in the Contract Documents, this Contract does not include the removal, handling, or disturbance of any asbestos or other Hazardous Materials. If Contractor encounters materials on the Project site that Contractor reasonably believes to be asbestos or other Hazardous Materials, and the asbestos or other Hazardous Materials have not been rendered harmless, Contractor may continue Work in unaffected areas reasonably believed to be safe, but must immediately cease work on the area affected and report the condition to City. No asbestos, asbestos-containing products or other Hazardous Materials may be used in performance of the Work.

10.3 Material Safety. Contractor is solely responsible for complying with § 5194 of Title 8 of the California Code of Regulations, including by providing information to Contractor’s employees about any hazardous chemicals to which they may be exposed in the course of the Work. A hazard communication program and other forms of warning and training about such exposure must be used. Contractor must also maintain Safety Data Sheets (“SDS”) at the Project site, as required by Laws, for materials or substances used or consumed in the performance of the Work. The SDS will be accessible and available to Contractor’s employees, Subcontractors, and City.
(A) Contractor Obligations. Contractor is solely responsible for the proper delivery, handling, use, storage, removal, and disposal of all materials brought to the Project site and/or used in the performance of the Work. Contractor must notify the Engineer if a specified product or material cannot be used safely. (B) Labeling. Contractor must ensure proper labeling on any material brought onto the Project site so that any persons working with or in the vicinity of the material may be informed as to the identity of the material, any potential hazards, and requirements for proper handling, protections, and disposal.

10.4 Hazardous Condition. Contractor is solely responsible for determining whether a hazardous condition exists or is created during the course of the Work, involving a risk of bodily harm to any person or risk of damage to any property. If a hazardous condition exists or is created, Contractor must take all precautions necessary to address the condition and ensure that the Work progresses safely under the circumstances.

Hazardous conditions may result from, but are not limited to, use of specified materials or equipment, the Work location, the Project site condition, the method of construction, or the way any Work must be performed.

10.5 Emergencies. In an emergency affecting the safety or protection of persons, Work, or property at or adjacent to any Worksite, Contractor must take reasonable and prompt actions to prevent damage, injury, or loss, without prior authorization from the City if, under the circumstances, there is inadequate time to seek prior authorization from the City.

Article 11 - Completion and Warranty Provisions

11.1 Final Completion.
(A) Final Inspection and Punch List. When the Work required by this Contract is fully performed, Contractor must provide written notification to City requesting final inspection. The Engineer will schedule the date and time for final inspection, which must 227
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include Contractor’s primary representative for this Project and its superintendent. Based on that inspection, City will prepare a punch list of any items that are incomplete, missing, defective, incorrectly installed, or otherwise not compliant with the Contract Documents.

The punch list to Contractor will specify the time by which all of the punch list items must be completed or corrected. The punch list may include City’s estimated cost to complete each punch list item if Contractor fails to do so within the specified time. The omission of any non-compliant item from a punch list will not relieve Contractor from fulfilling all requirements of the Contract Documents. Contractor’s failure to complete any punch list item within the time specified in the punch list will not waive or abridge its warranty obligations for any such items that must be completed by the City or by a third party retained by the City due to Contractor’s failure to timely complete any such outstanding item.
(B) Requirements for Final Completion. Final Completion will be achieved upon completion or correction of all punch list items, as verified by City’s further inspection, and upon satisfaction of all other Contract requirements, including any commissioning required under the Contract Documents and submission of all final submittals, including instructions and manuals as required under Section 7.10, and complete, final as-built drawings as required under Section 7.11, all to City’s satisfaction. (C) Acceptance. The Project will be considered accepted upon City Council action during a public meeting to accept the Project, unless the Engineer is authorized to accept the Project, in which case the Project will be considered accepted upon the date of the Engineer’s issuance of a written notice of acceptance. In order to avoid delay of Project close out, the City may elect, acting in its sole discretion, to accept the Project as complete subject to exceptions for punch list items that are not completed within the time specified in the punch list.
(D) Final Payment and Release of Retention. Final Payment and release of retention, less any sums withheld pursuant to the provisions of the Contract Documents, will not be made sooner than 35 days after recordation of the notice of completion. If Contractor fails to complete all of the punch list items within the specified time, City may withhold up to 150% of City’s estimated cost to complete each of the remaining items from Final Payment and may use the withheld retention to pay for the costs to selfperform the outstanding items or to retain a third party to complete any such outstanding punch list item.

11.2 Warranty.
(A) General. Contractor warrants that all materials and equipment will be new unless otherwise specified, of good quality, in conformance with the Contract Documents, and free from defective workmanship and materials. Contractor further warrants that the Work will be free from material defects not intrinsic in the design or materials required in the Contract Documents. Contractor warrants that materials or items incorporated into the Work comply with the requirements and standards in the Contract Documents, including compliance with Laws, and that any Hazardous Materials encountered or used were handled as required by Laws. At City’s request, Contractor must furnish satisfactory evidence of the quality and type of materials and equipment furnished. Contractor’s warranty does not extend to damage caused by normal wear and tear, or improper use or maintenance.
(B) Warranty Period. Contractor’s warranty must guarantee its Work for a period of one year from the date of Project acceptance (the “Warranty Period”), except when a longer guarantee is provided by a supplier or manufacturer or is required by the Specifications or Special Conditions. Contractor must obtain from its Subcontractors, 228
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suppliers and manufacturers any special or extended warranties required by the Contract Documents.
(C) Warranty Documents. As a condition precedent to Final Completion, Contractor must supply City with all warranty and guarantee documents relevant to equipment and materials incorporated into the Work and guaranteed by their suppliers or manufacturers.
(D) Subcontractors. The warranty obligations in the Contract Documents apply to Work performed by Contractor and its Subcontractors, and Contractor agrees to be coguarantor of such Work. (E) Contractor’s Obligations. Upon written notice from City to Contractor of any defect in the Work discovered during the Warranty Period, Contractor or its responsible Subcontractor must promptly correct the defective Work at its own cost. Contractor’s obligation to correct defects discovered during the Warranty Period will continue past the expiration of the Warranty Period as to any defects in Work for which Contractor was notified prior to expiration of the Warranty Period. Work performed during the Warranty Period (“Warranty Work”) will be subject to the warranty provisions in this Section 11.2 for a one-year period that begins upon completion of such Warranty Work to City’s satisfaction.
(F) City’s Remedies. If Contractor or its responsible Subcontractor fails to correct defective Work within ten days following notice by City, or sooner if required by the circumstances, City may correct the defects to conform with the Contract Documents at Contractor’s sole expense. Contractor must reimburse City for its costs in accordance with subsection (H), below.
(G) Emergency Repairs. In cases of emergency where any delay in correcting defective Work could cause harm, loss or damage, City may immediately correct the defects to conform with the Contract Documents at Contractor’s sole expense. Contractor or its surety must reimburse City for its costs in accordance with subsection (H), below. (H) Reimbursement. Contractor must reimburse City for its costs to repair under subsections (F) or (G), above, within 30 days following City’s submission of a demand for payment pursuant to this provision. If City is required to initiate legal action to compel Contractor’s compliance with this provision, and City is the prevailing party in such action, Contractor and its surety are solely responsible for all of City’s attorney’s fees and legal costs expended to enforce Contractor’s warranty obligations herein, in addition to any and all costs City incurs to correct the defective Work.

11.3 Use Prior to Final Completion. City reserves the right to occupy or make use of the Project, or any portions of the Project, prior to Final Completion if City has determined that the Project or portion of it is in a condition suitable for the proposed occupation or use, and that it is in its best interest to occupy or make use of the Project, or any portions of it, prior to Final Completion.
(A) Non-Waiver. Occupation or use of the Project, in whole or in part, prior to Final Completion will not operate as acceptance of the Work or any portion of it, nor will it operate as a waiver of any of City’s rights or Contractor’s duties pursuant to these Contract Documents, and will not affect nor bear on the determination of the time of substantial completion with respect to any statute of repose pertaining to the time for filing an action for construction defect.
(B) City’s Responsibility. City will be responsible for the cost of maintenance and repairs due to normal wear and tear with respect to those portions of the Project that are 229
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being occupied or used before Final Completion. The Contract Price or the Contract Time may be adjusted pursuant to the applicable provisions of these Contract Documents if, and only to the extent that, any occupation or use under this Section actually adds to Contractor’s cost or time to complete the Work within the Contract Time.

11.4 Substantial Completion. For purposes of determining “substantial completion” with respect to any statute of repose pertaining to the time for filing an action for construction defect, “substantial completion” is deemed to mean the last date that Contractor or any Subcontractor performs Work on the Project prior to City acceptance of the Project, except for warranty work performed under this Article.

Article 12 - Dispute Resolution

12.1 Claims. This Article applies to and provides the exclusive procedures for any Claim arising from or related to the Contract or performance of the Work. (A) Definition. “Claim” means a separate demand by Contractor, submitted in writing by registered or certified mail with return receipt requested, for a change in the Contract Time, including a time extension or relief from liquidated damages, or a change in the Contract Price, when the demand has previously been submitted to City in accordance with the requirements of the Contract Documents, and which has been rejected or disputed by City, in whole or in part. A Claim may also include that portion of a unilateral Change Order that is disputed by the Contractor. (B) Limitations. A Claim may only include the portion of a previously rejected demand that remains in dispute between Contractor and City. With the exception of any dispute regarding the amount of money actually paid to Contractor as Final Payment, Contractor is not entitled to submit a Claim demanding a change in the Contract Time or the Contract Price, which has not previously been submitted to City in full compliance with Article 5 and Article 6, and subsequently rejected in whole or in part by City. (C) Scope of Article. This Article is intended to provide the exclusive procedures for submission and resolution of Claims of any amount and applies in addition to the provisions of Public Contract Code § 9204 and § 20104 et seq., which are incorporated by reference herein.
(D) No Work Delay. Notwithstanding the submission of a Claim or any other dispute between the parties related to the Project or the Contract Documents, Contractor must perform the Work and may not delay or cease Work pending resolution of a Claim or other dispute, but must continue to diligently prosecute the performance and timely completion of the Work, including the Work pertaining to the Claim or other dispute. (E) Informal Resolution. Contractor will make a good faith effort to informally resolve a dispute before initiating a Claim, preferably by face-to-face meeting between authorized representatives of Contractor and City.

12.2 Claims Submission. The following requirements apply to any Claim subject to this Article:
(A) Substantiation. The Claim must be submitted to City in writing, clearly identified as a “Claim” submitted pursuant to this Article 12 and must include all of the documents necessary to substantiate the Claim including the Change Order request that was rejected in whole or in part, and a copy of City’s written rejection that is in dispute.

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Claim for additional payment must include a complete, itemized breakdown of all known or estimated labor, materials, taxes, insurance, and subcontract, or other costs.

Substantiating documentation such as payroll records, receipts, invoices, or the like, must be submitted in support of each component of claimed cost. Any Claim for an extension of time or delay costs must be substantiated with a schedule analysis and narrative depicting and explaining claimed time impacts.
(B) Claim Format and Content. A Claim must be submitted in the following format:
(1) Provide a cover letter, specifically identifying the submission as a “Claim” submitted under this Article 12 and specifying the requested remedy (e.g., amount of proposed change to Contract Price and/or change to Contract Time). (2) Provide a summary of each Claim, including underlying facts and the basis for entitlement, and identify each specific demand at issue, including the specific Change Order request (by number and submittal date), and the date of City's rejection of that demand, in whole or in part.
(3) Provide a detailed explanation of each issue in dispute. For multiple issues included within a single Claim or for multiple Claims submitted concurrently, separately number and identify each individual issue or Claim, and include the following for each separate issue or Claim:
a. A succinct statement of the matter in dispute, including Contractor’s position and the basis for that position;
b. Identify and attach all documents that substantiate the Claim, including relevant provisions of the Contract Documents, RFIs, calculations, and schedule analysis (see subsection (A), Substantiation, above);
c. A chronology of relevant events; and
d. Analysis and basis for claimed changes to Contract Price, Contract Time, or any other remedy requested.
(4) Provide a summary of issues and corresponding claimed damages. If, by the time of the Claim submission deadline (below), the precise amount of the requested change in the Contract Price or Contract Time is not yet known, Contractor must provide a good faith estimate, including the basis for that estimate, and must identify the date by which it is anticipated that the Claim will be updated to provide final amounts.
(5) Include the following certification, executed by Contractor’s authorized representative:
“The undersigned Contractor certifies under penalty of perjury that its statements and representations in this Claim submittal are true and correct. Contractor warrants that this Claim submittal is comprehensive and complete as to the matters in dispute, and agrees that any costs, expenses, or delay not included herein are deemed waived.”
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(C) Submission Deadlines.
(1) A Claim disputing rejection of a request for a change in the Contract Time or Contract Price must be submitted within 15 days following the date that City notified Contractor in writing that a request for a change in the Contract Time or Contract Price, duly submitted in compliance with Article 5 and Article 6, has been rejected in whole or in part. A Claim disputing the terms of a unilateral Change Order must be submitted within 15 days following the date of issuance of the unilateral Change Order. These Claim deadlines apply even if Contractor cannot yet quantify the total amount of any requested change in the Contract Time or Contract Price. If the Contractor cannot quantify those amounts, it must submit an estimate of the amounts claimed pending final determination of the requested remedy by Contractor.
(2) With the exception of any dispute regarding the amount of Final Payment, any Claim must be filed on or before the date of Final Payment or will be deemed waived.
(3) A Claim disputing the amount of Final Payment must be submitted within 15 days of the effective date of Final Payment, under Section 8.7, Final Payment. (4) Strict compliance with these Claim submission deadlines is necessary to ensure that any dispute may be mitigated as soon as possible, and to facilitate cost-efficient administration of the Project. Any Claim that is not submitted within the specified deadlines will be deemed waived by Contractor.

12.3 City’s Response. City will respond within 45 days of receipt of the Claim with a written statement identifying which portion(s) of the Claim are disputed, unless the 45-day period is extended by mutual agreement of City and Contractor or as otherwise allowed under Public Contract Code § 9204. However, if City determines that the Claim is not adequately substantiated pursuant to Section 12.2(A), Substantiation, City may first request in writing, within 30 days of receipt of the Claim, any additional documentation supporting the Claim or relating to defenses to the Claim that City may have against the Claim.
(A) Additional Information. If additional information is thereafter required, it may be requested and provided upon mutual agreement of City and Contractor. If Contractor’s Claim is based on estimated amounts, Contractor has a continuing duty to update its Claim as soon as possible with information on actual amounts in order to facilitate prompt and fair resolution of the Claim.
(B) Non-Waiver. Any failure by City to respond within the times specified above will not be construed as acceptance of the Claim, in whole or in part, or as a waiver of any provision of these Contract Documents.

12.4 Meet and Confer. If Contractor disputes City’s written response, or City fails to respond within the specified time, within 15 days of receipt of City’s response or within 15 days of City’s failure to respond within the applicable 45-day time period under Section 12.3, respectively, Contractor may notify City of the dispute in writing sent by registered or certified mail, return receipt requested, and demand an informal conference to meet and confer for settlement of the issues in dispute. If Contractor fails to notify City of the dispute and demand an informal conference to meet and confer in writing within the specified time, Contractor’s Claim will be deemed waived. (A) Schedule Meet and Confer. Upon receipt of the demand to meet and confer, City will schedule the meet and confer conference to be held within 30 days, or later if 232
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needed to ensure the mutual availability of each of the individuals that each party requires to represent its interests at the meet and confer conference. (B) Location for Meet and Confer. The meet and confer conference will be scheduled at a location at or near City’s principal office. (C) Written Statement After Meet and Confer. Within ten working days after the meet and confer has concluded, City will issue a written statement identifying which portion(s) of the Claim remain in dispute, if any.
(D) Submission to Mediation. If the Claim or any portion remains in dispute following the meet and confer conference, within ten working days after the City issues the written statement identifying any portion(s) of the Claim remaining in dispute, the Contractor may identify in writing disputed portion(s) of the Claim, which will be submitted for mediation, as set forth below.

12.5 Mediation and Government Code Claims.
(A) Mediation. Within ten working days after the City issues the written statement identifying any portion(s) of the Claim remaining in dispute following the meet and confer, City and Contractor will mutually agree to a mediator, as provided under Public Contract Code § 9204. Mediation will be scheduled to ensure the mutual availability of the selected mediator and all of the individuals that each party requires to represent its interests. If there are multiple Claims in dispute, the parties may agree to schedule the mediation to address all outstanding Claims at the same time. The parties will share the costs of the mediator and mediation fees equally, but each party is otherwise solely and separately responsible for its own costs to prepare for and participate in the mediation, including costs for its legal counsel or any other consultants.
(B) Government Code Claims.
(1) Timely presentation of a Government Code Claim is a condition precedent to filing any legal action based on or arising from the Contract. Compliance with the Claim submission requirements in this Article 12 is a condition precedent to filing a Government Code Claim.
(2) The time for filing a Government Code Claim will be tolled from the time Contractor submits its written Claim pursuant to Section 12.2, above, until the time that Claim is denied in whole or in part at the conclusion of the meet and confer process, including any period of time used by the meet and confer process. However, if the Claim is submitted to mediation, the time for filing a Government Code Claim will be tolled until conclusion of the mediation, including any continuations, if the Claim is not fully resolved by mutual agreement of the parties during the mediation or any continuation of the mediation.

12.6 Tort Claims. This Article does not apply to tort claims and nothing in this Article is intended nor will be construed to change the time periods for filing tort-based Government Code Claims.

12.7 Arbitration. It is expressly agreed, under Code of Civil Procedure § 1296, that in any arbitration to resolve a dispute relating to this Contract, the arbitrator’s award must be supported by law and substantial evidence.

12.8 Burden of Proof and Limitations. Contractor bears the burden of proving entitlement to and the amount of any claimed damages. Contractor is not entitled to damages calculated on a total cost basis, but must prove actual damages. Contractor is not entitled 233
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to speculative, special, or consequential damages, including home office overhead or any form of overhead not directly incurred at the Project site or any other Worksite; lost profits; loss of productivity; lost opportunity to work on other projects; diminished bonding capacity; increased cost of financing for the Project; extended capital costs; nonavailability of labor, material or equipment due to delays; or any other indirect loss arising from the Contract. The Eichleay Formula or similar formula will not be used for any recovery under the Contract. The City will not be directly liable to any Subcontractor or supplier.

12.9 Legal Proceedings. In any legal proceeding that involves enforcement of any requirements of the Contract Documents, the finder of fact will receive detailed instructions on the meaning and operation of the Contract Documents, including conditions, limitations of liability, remedies, claim procedures, and other provisions bearing on the defenses and theories of liability. Detailed findings of fact will be requested to verify enforcement of the Contract Documents. All of the City’s remedies under the Contract Documents will be construed as cumulative, and not exclusive, and the City reserves all rights to all remedies available under law or equity as to any dispute arising from or relating to the Contract Documents or performance of the Work.

12.10 Other Disputes. The procedures in this Article 12 will apply to any and all disputes or legal actions, in addition to Claims, arising from or related to this Contract, including disputes regarding suspension or early termination of the Contract, unless and only to the extent that compliance with a procedural requirement is expressly and specifically waived by City. Nothing in this Article is intended to delay suspension or termination under Article

13. Article 13 - Suspension and Termination

13.1 Suspension for Cause. In addition to all other remedies available to City, if Contractor fails to perform or correct Work in accordance with the Contract Documents, including non-compliance with applicable environmental or health and safety Laws, City may immediately order the Work, or any portion of it, suspended until the circumstances giving rise to the suspension have been eliminated to City’s satisfaction. (A) Notice of Suspension. Upon receipt of City’s written notice to suspend the Work, in whole or in part, except as otherwise specified in the notice of suspension, Contractor and its Subcontractors must promptly stop Work as specified in the notice of suspension; comply with directions for cleaning and securing the Worksite; and protect the completed and in-progress Work and materials. Contractor is solely responsible for any damages or loss resulting from its failure to adequately secure and protect the Project.

(B) Resumption of Work. Upon receipt of the City’s written notice to resume the suspended Work, in whole or in part, except as otherwise specified in the notice to resume, Contractor and its Subcontractors must promptly re-mobilize and resume the Work as specified; and within ten days from the date of the notice to resume, Contractor must submit a recovery schedule, prepared in accordance with the Contract Documents, showing how Contractor will complete the Work within the Contract Time. (C) Failure to Comply. Contractor will not be entitled to an increase in the Contract Time or Contract Price for a suspension occasioned by Contractor’s failure to comply with the Contract Documents.
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(D) No Duty to Suspend. City’s right to suspend the Work will not give rise to a duty to suspend the Work, and City’s failure to suspend the Work will not constitute a defense to Contractor’s failure to comply with the requirements of the Contract Documents.

13.2 Suspension for Convenience. City reserves the right to suspend, delay, or interrupt the performance of the Work in whole or in part, for a period of time determined to be appropriate for City’s convenience. Upon notice by City pursuant to this provision, Contractor must immediately suspend, delay, or interrupt the Work and secure the Project site as directed by City except for taking measures to protect completed or inprogress Work as directed in the suspension notice, and subject to the provisions of Section 13.1(A) and (B), above. If Contractor submits a timely request for a Change Order in compliance with Articles 5 and 6, the Contract Price and the Contract Time will be equitably adjusted by Change Order pursuant to the terms of Articles 5 and 6 to reflect the cost and delay impact occasioned by such suspension for convenience, except to the extent that any such impacts were caused by Contractor’s failure to comply with the Contract Documents or the terms of the suspension notice or notice to resume. However, the Contract Time will only be extended if the suspension causes or will cause unavoidable delay in Final Completion. If Contractor disputes the terms of a Change Order issued for such equitable adjustment due to suspension for convenience, its sole recourse is to comply with the Claim procedures in Article 12.

13.3 Termination for Default. City may declare that Contractor is in default of the Contract for a material breach of or inability to fully, promptly, or satisfactorily perform its obligations under the Contract.
(A) Default. Events giving rise to a declaration of default include Contractor’s refusal or failure to supply sufficient skilled workers, proper materials, or equipment to perform the Work within the Contract Time; Contractor’s refusal or failure to make prompt payment to its employees, Subcontractors, or suppliers or to correct defective Work or damage; Contractor’s failure to comply with Laws, or orders of any public agency with jurisdiction over the Project; evidence of Contractor’s bankruptcy, insolvency, or lack of financial capacity to complete the Work as required within the Contract Time; suspension, revocation, or expiration and nonrenewal of Contractor’s license or DIR registration; dissolution, liquidation, reorganization, or other major change in Contractor’s organization, ownership, structure, or existence as a business entity; unauthorized assignment of Contractor’s rights or duties under the Contract; or any material breach of the Contract requirements.

(B) Notice of Default and Opportunity to Cure. Upon City’s declaration that Contractor is in default due to a material breach of the Contract Documents, if City determines that the default is curable, City will afford Contractor the opportunity to cure the default within ten days of City’s notice of default, or within a period of time reasonably necessary for such cure, including a shorter period of time if applicable. (C) Termination. If Contractor fails to cure the default or fails to expediently take steps reasonably calculated to cure the default within the time period specified in the notice of default, City may issue written notice to Contractor and its performance bond surety of City’s termination of the Contract for default. (D) Waiver. Time being of the essence in the performance of the Work, if Contractor’s surety fails to arrange for completion of the Work in accordance with the Performance Bond within seven calendar days from the date of the notice of termination pursuant to paragraph (C), City may immediately make arrangements for the completion of the Work through use of its own forces, by hiring a replacement contractor, or by any other means that City determines advisable under the circumstances. Contractor and its surety will be jointly and severally liable for any additional cost incurred by City to 235
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complete the Work following termination, where “additional cost” means all cost in excess of the cost City would have incurred if Contractor had timely completed Work without the default and termination. In addition, City will have the right to immediate possession and use of any materials, supplies, and equipment procured for the Project and located at the Project site or any Worksite on City property for the purposes of completing the remaining Work.
(E) Compensation. Within 30 days of receipt of updated as-builts, all warranties, manuals, instructions, or other required documents for Work installed to date, and delivery to City of all equipment and materials for the Project for which Contractor has already been compensated, Contractor will be compensated for the Work satisfactorily performed in compliance with the Contract Documents up to the effective date of the termination pursuant to the terms of Article 8, Payment, subject to City’s rights to withhold or deduct sums from payment otherwise due pursuant to Section 8.3, and excluding any costs Contractor incurs as a result of the termination, including any cancellation or restocking charges or fees due to third parties. If Contractor disputes the amount of compensation determined by City, its sole recourse is to comply with the Claim Procedures in Article 12, by submitting a Claim no later than 30 days following notice from City of the total compensation to be paid by City. (F) Wrongful Termination. If Contractor disputes the termination, its sole recourse is to comply with the Claim procedures in Article 12. If a court of competent jurisdiction or an arbitrator later determines that the termination for default was wrongful, the termination will be deemed to be a termination for convenience, and Contractor’s damages will be strictly limited to the compensation provided for termination for convenience under Section 13.4, below. Contractor waives any claim for any other damages for wrongful termination including special or consequential damages, lost opportunity costs, or lost profits, and any award of damages is subject to Section 12.8, Burden of Proof and Limitations.

13.4 Termination for Convenience. City reserves the right, acting in its sole discretion, to terminate all or part of the Contract for convenience upon written notice to Contractor. (A) Compensation to Contractor. In the event of City’s termination for convenience, Contractor waives any claim for damages, including for loss of anticipated profits from the Project. The following will constitute full and fair compensation to Contractor, and Contractor will not be entitled to any additional claim or compensation:
(1) Completed Work. The value of its Work satisfactorily performed as of the date notice of termination is received, based on Contractor’s schedule of values and unpaid costs for items delivered to the Project site that were fabricated for incorporation in the Work;
(2) Demobilization. Demobilization costs specified in the schedule of values, or if demobilization costs were not provided in a schedule of values pursuant to Section 8.1, then based on actual, reasonable, and fully documented demobilization costs; and
(3) Termination Markup. Five percent of the total value of the Work performed as of the date of notice of termination, including reasonable, actual, and documented costs to comply with the direction in the notice of termination for convenience, and demobilization costs, which is deemed to cover all overhead and profit to date.
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procedures in Article 12, by submitting a Claim no later than 30 days following notice from City of total compensation to be paid by City.

13.5 Actions Upon Termination for Default or Convenience. The following provisions apply to any termination under this Article, whether for default or convenience, and whether in whole or in part.
(A) General. Upon termination, City may immediately enter upon and take possession of the Project and the Work and all tools, equipment, appliances, materials, and supplies procured or fabricated for the Project. Contractor will transfer title to and deliver all completed Work and all Work in progress to City. (B) Submittals. Unless otherwise specified in the notice of termination, Contractor must immediately submit to City all designs, drawings, as-built drawings, Project records, contracts with vendors and Subcontractors, manufacturer warranties, manuals, and other such submittals or Work-related documents required under the terms of the Contract Documents, including incomplete documents or drafts.
(C) Close Out Requirements. Except as otherwise specified in the notice of termination, Contractor must comply with all of the following:
(1) Immediately stop the Work, except for any Work that must be completed pursuant to the notice of termination and comply with City’s instructions for cessation of labor and securing the Project and any other Worksite(s). (2) Comply with City’s instructions to protect the completed Work and materials, using best efforts to minimize further costs.
(3) Contractor must not place further orders or enter into new subcontracts for materials, equipment, services or facilities, except as may be necessary to complete any portion of the Work that is not terminated. (4) As directed in the notice, Contractor must assign to City or cancel existing subcontracts that relate to performance of the terminated Work, subject to any prior rights, if any, of the surety for Contractor’s performance bond, and settle all outstanding liabilities and claims, subject to City’s approval. (5) As directed in the notice, Contractor must use its best efforts to sell any materials, supplies, or equipment intended solely for the terminated Work in a manner and at market rate prices acceptable to City.
(D) Payment Upon Termination. Upon completion of all termination obligations, as specified herein and in the notice of termination, Contractor will submit its request for Final Payment, including any amounts due following termination pursuant to this Article

13. Payment will be made in accordance with the provisions of Article 8, based on the portion of the Work satisfactorily completed, including the close out requirements, and consistent with the previously submitted schedule of values and unit pricing, including demobilization costs. Adjustments to Final Payment may include deductions for the cost of materials, supplies, or equipment retained by Contractor; payments received for sale of any such materials, supplies, or equipment, less re-stocking fees charged; and as otherwise specified in Section 8.3, Adjustment of Payment Application. (E) Continuing Obligations. Regardless of any Contract termination, Contractor’s obligations for portions of the Work already performed will continue and the provisions of the Contract Documents will remain in effect as to any claim, indemnity obligation, 237
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warranties, guarantees, submittals of as-built drawings, instructions, or manuals, record maintenance, or other such rights and obligations arising prior to the termination date.

Article 14 - Miscellaneous Provisions

14.1 Assignment of Unfair Business Practice Claims. Under Public Contract Code § 7103.5, Contractor and its Subcontractors agree to assign to City all rights, title, and interest in and to all causes of action it may have under section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2 (commencing with § 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the Contract or any subcontract. This assignment will be effective at the time City tenders Final Payment to Contractor, without further acknowledgement by the parties.

14.2 Provisions Deemed Inserted. Every provision of law required to be inserted in the Contract Documents is deemed to be inserted, and the Contract Documents will be construed and enforced as though such provision has been included. If it is discovered that through mistake or otherwise that any required provision was not inserted, or not correctly inserted, the Contract Documents will be deemed amended accordingly.

14.3 Waiver. City’s waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of the Contract Documents will not be effective unless it is in writing and signed by City. City’s waiver of any breach, failure, right, or remedy will not be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor will any waiver constitute a continuing waiver unless specified in writing by City.

14.4 Titles, Headings, and Groupings. The titles and headings used and the groupings of provisions in the Contract Documents are for convenience only and may not be used in the construction or interpretation of the Contract Documents or relied upon for any other purpose.

14.5 Statutory and Regulatory References. With respect to any amendments to any statutes or regulations referenced in these Contract Documents, the reference is deemed to be the version in effect on the date that bids were due.

14.6 Survival. The provisions that survive termination or expiration of this Contract include Contract Section 11, Notice, and subsections 12.1, 12.2, 12.3, 12.4, 12.5, and 12.6 of Section 12, General Provisions; and the following provisions in these General Conditions:

Section 2.2(J), Contractor’s Records, Section 2.3(C), Termination, Section 3.7, Ownership, Section 4.2, Indemnity, Article 12, Dispute Resolution, and Section 11.2, Warranty.

END OF GENERAL CONDITIONS
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Special Conditions

1. Proper Disposal. All demolished material, including existing signal pole removal, shall be disposed of in a legal location. Contractor shall provide documentation to the City where materials will be disposed at.

2. Authorized Work Days and Hours.

2.1 Authorized Work Days. Except as expressly authorized in writing by City, Contractor is limited to performing Work on the Project on the following days of the week, excluding holidays observed by City: Monday to Friday.

2.2 Authorized Work Hours. Except as expressly authorized in writing by City, Contractor 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. No equipment or material may be delivered or off-hauled except between the hours of 7:00 a.m. and 4:00 p.m. No equipment that has a safety back up beeper may be operated before 7:00 a.m. on any day.

Contractor shall obtain City’s approval prior to any lane closure. Traffic control plan must be submitted to the City for review and approval. Lane closures on Stevens Creek Boulevard shall be allowed during the times listed below:

West Bound: 9:00 a.m. – 2:30 p.m.

East Bound: 9:00 a.m. – 3:00 p.m.

Duration of lane closure for bus pad work must be approved by the City prior to work occurring.

Note that there are additional restrictions per City of Cupertino Truck Traffic Routes, Section 11.32 of the Cupertino Municipal Code.

2.3 Road Shutdown. Contractor will execute the Work while roads are in operation except for the periods of permitted shutdown. For shutdown periods, Contractor 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, Contractor’s supervisory personnel, actions desired of City and staff, and contingency plans. Contractor will allow sufficient time for review and re-submittal of the shutdown plan until acceptable to City. Contractor 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 around-the-clock basis as necessary. When required to minimize treatment process interruptions while complying with specified sequencing constraints, Contractor will provide power, lighting, controls, instrumentation, and safety devices.

2.4 Noise Limitation. No non-construction noise will be allowed, this includes amplified music, radio or other noise not due to construction activities.

3. Pre-Construction Conference. City will designate a date and time for a preconstruction conference with Contractor following Contract execution. Project administration procedures and coordination between City and Contractor will be discussed, and Contractor must present City with the following information or documents at the meeting for City’s review and acceptance before the Work commences:
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3.1 Name, 24-hour contact information, and qualifications of the proposed on-site superintendent;

3.2 List of all key Project personnel and their complete contact information, including email addresses and telephone numbers during regular hours and after hours;

3.3 Staging plans that identify the sequence of the Work, including any phases and alternative sequences or phases, with the goal of minimizing the impacts on residents, businesses and other operations in the Project vicinity;

3.4 Traffic control plans associated with the staging plans that are signed and stamped by a licensed traffic engineer;

3.5 Draft baseline schedule for the Work as required under Section 5.2 of the General Conditions, to be finalized within ten days after City issues the Notice to Proceed;

3.6 Breakdown of lump sum bid items, to be used for determining the value of Work completed for future progress payments to Contractor;

3.7 Schedule with list of Project submittals that require City review, and list of the proposed material suppliers;

3.8 Plan for coordination with affected utility owner(s) and compliance with any related permit requirements;

3.9 Videotape and photographs recording the conditions throughout the preconstruction Project site, showing the existing improvements and current condition of the curbs, gutters, sidewalks, signs, landscaping, streetlights, structures near the Project such as building faces, canopies, shades and fences, and any other features within the Project area limits;

3.10 If requested by City, Contractor’s cash flow projections; and

3.11 Any other documents specified in the Special Conditions or Notice of Potential Award.

4. Insurance Requirements. The insurance requirements under Section 4.3 of the General Conditions are modified for this Contract, as set forth below. Except as expressly stated below, all other provisions in Section 4.3 are unchanged and remain in full force and effect.

4.1 Builders Risk Insurance Waived. The builder’s risk insurance policy requirement set forth in subsection 4.3(A)(5) of the General Conditions is hereby waived and does not apply to this Contract.

5. Construction Manager Role and Authority. A Construction Manager will be assigned to this Project. The Construction Manager will assist City in the management of the construction of the Project. The Construction Manager may perform services in the areas of supervision and coordination of the work of Contractor and/or other contractors, scheduling the Work, monitoring the progress of the Work, providing City with evaluations and recommendations concerning the quality of the Work, recommending the approval of progress payments to Contractor, or other services for the Project in accordance with the Construction Manager’s contract with City.
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5.1 Communications. Contractor must submit all notices and communications relating to the Work directly to the Construction Manager and to the City in writing.

5.2 On-Site Management and Communication Procedures. The Construction Manager will provide and maintain a management team on the Project site to provide contract administration as an agent of City, and will establish and implement coordination and communication procedures among City, the Design Professional, Contractor, and others.

5.3 Contract Administration Procedures. The Construction Manager will establish and implement procedures for reviewing and processing requests for clarifications and interpretations of the Contract Documents, Shop Drawings, samples, other submittals, schedule adjustments, Change Order proposals, written proposals for substitutions, payment applications, and maintenance of logs.

5.4 Pre-Construction Conference. Contractor will attend the pre-construction conference, during which the Construction Manager will review the Contract administration procedures and Project requirements.

5.5 Contractor’s Construction Schedule. The Construction Manager will review Contractor’s construction schedules and will verify that each schedule is prepared in accordance with the requirements of the Contract Documents.

6. 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.

6.1 Equal Opportunity. During the performance of this Contract, the Contractor agrees as follows:
(A) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Contractor 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 Contractor 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.
(B) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. (C) The Contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or 241
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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 the 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 Contractor’s legal duty to furnish information.
(D) The Contractor 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 Contractor’s commitments under this section, and will post copies of the notice in conspicuous places available to employees and applicants for employment.
(E) The Contractor 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.
(F) The Contractor 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. (G) In the event of the Contractor’s 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 Contractor 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 sanctions 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. (H) The Contractor 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 rules, 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 Contractor 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 noncompliance: Provided, however, that in the event a Contractor 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 Contractor may request the United States to enter into such litigation to protect the interests of the United States.
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6.2 Davis-Bacon Act. Contractor 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, Contractor accepts the attached Wage Determination.

6.3 Copeland “Anti-Kickback” Act. Contractor 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. Contractor and Subcontractors must insert this requirement into subcontracts of any tier.

Contractor is responsible for compliance with these requirements by each Subcontractor of any tier.

6.4 Contract Work Hours and Safety Standards Act. In addition to the California state law requirements in Article 9 of the General Conditions, Contractor 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:
(A) No Contractor or Subcontractor will 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 compensation 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.
(B) If Contractor or a Subcontractor violates this requirement, the Contractor and any responsible Subcontractor will be liable for the unpaid wages. In addition, the Contractor and Subcontractor will be liable to the United States for liquidated damages. The liquidated damages will be computed with respect to each individual worker as specified under federal law.
(C) Contractor and Subcontractors must insert this requirement into subcontracts of any tier. Contractor is responsible for compliance with these requirements by each Subcontractor of any tier.

6.5 Clean Air Act. If the Contract is for an amount in excess of $150,000, Contractor and each Subcontractor must comply with the requirements of the Clean Air Act, as 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. Contractor and Subcontractors must insert this requirement into subcontracts of any tier in excess of $150,000.

6.6 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. Contractor and Subcontractors must insert this requirement into subcontracts of any tier in excess of $150,000. 243
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6.7 Suspension and Debarment. Contractor 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. Contractor 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 Contractor did not comply with the applicable subparts, the Federal Government may pursue available remedies, including, but not limited to, suspension and/or debarment. By submitting a bid and entering into this Contract, Contractor agrees to comply with these requirements.

6.8 Byrd Anti-Lobbying Amendment. If the Contract is for an amount in excess of $100,000, Contractor must comply with the Byrd Anti-Lobbying 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.

6.9 Procurement of Recovered Materials. The requirements of § 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation 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, Contractor will make maximum use of products containing recovered materials 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-guideline-cpg-program.

6.10 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 substantial 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 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.

6.11 Domestic Preferences for Procurements. As appropriate and to the extent consistent with Laws, the City should, to the greatest extent practicable under a 244
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federal award, provide a preference for the purchase, acquisition, or use of 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, as specified therein. The requirements of 2 CFR § 200.322 must be included in all subcontracts and purchase orders for work or products under the federal award.

7. Federal Contract Requirements. This Project is funded in whole or in part by federal funds administered under Caltrans’ Local Assistance Procedures Manual (“LAPM”).

LAPM contract requirements are provided in Attachment B - Federal Contract Requirements. Contractor must comply with the requirements set forth in Attachment B.

8. Close Out Requirements. Contractor’s close out requirements include the following, if applicable:

8.1 Contractor must replace, with thermoplastic, any existing striping within and adjacent to the Project site that is damaged during the Work. Partially damaged striping must be replaced in its entirety.

8.2 Contractor must replace any survey monuments that are damaged or removed during the Work, with a Record of Survey filed by a licensed land surveyor as required by California law.

8.3 Before removing any traffic control or street signs on the Project site, Contractor must take photographs showing their original locations. Upon completion of each phase of construction, Contractor must temporarily reset the signs at those locations. Contractor must then replace the signs permanently upon completion of the Work and the cost of their removal and replacement must be included in the Bid Proposal.

9. Lines and Grades Verification. All Work must be done to the lines, grades, and elevations indicated on the Plans and Specifications, and in accordance with all applicable codes and laws. Contractor is required to verify forms and other work comply with lines, grades and elevations. Prior to pouring or placing any concrete or asphalt, Contractor must have a California licensed land surveyor or civil engineer field verify lines, grades and elevations prior to proceeding with the placement of concrete or asphalt. The land surveyor or civil engineer must have at least five years of relevant experience, and must be acceptable to the City. Contractor must provide City verification of the licensing and experience for each proposed land surveyor or civil engineer.

Contractor must provide City with inspection results for form and grade work. Contractor must remedy any non-compliant Work at no additional cost to City.

10. Parking Restrictions. Parking is not permitted on the Project site. Contractor and Subcontractors will direct their respective workers to park in approved staging area 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. Contractor and its Subcontractors will encourage their respective workers to carpool.

11. Notification of Residents, Schools and Businesses. The Contractor shall notify, in writing, residents, businesses and schools within a 300-foot radius of project limits at a minimum of two times prior to start of construction. The first notice shall be given to all residents, businesses and schools within the project area five working days prior to any 245
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construction operation. The second notice shall be given to residents, businesses and schools two working days prior to any construction operation. Both notices shall be in writing and submitted to the Engineer for review and approval. Sample notice is below.

Notices shall include the project name, describe the nature and duration of the Contractor’s operations, and provide a toll-free telephone number or (408) area code number at which a Contractor’s representative may be contacted 24 hour per day for problems or emergencies encountered by residents and/or businesses. Answering machines and voice mail shall not be permitted. The notice shall also contain the City’s Construction Manager contact information.

A separate notice shall be given at least two working days prior to any anticipated service/utility disruption or temporary closure of access to any driveway. The notice shall indicate the duration of the disruption. The Contractor shall submit a written request to the Engineer regarding the temporary closure of access to any driveway. No driveway access shall be closed by the Contractor at any time without prior written authorization from the Engineer.

If construction operations are delayed for any reason beyond the duration stipulated in the notices, the Contractor shall re-issue written notices that explain the delay and provide a revised schedule.

All written notices to residents, schools, businesses, agencies, etc. shall be submitted to the City for review and approval. Provide the City with a schedule of the notification deliveries so that the City can confirm that the notification was completed.

Payment for compliance with this section shall be deemed included in the various other items of work, and no additional compensation will be allowed therefore.

SAMPLE NOTICE:

NOTICE TO RESIDENTS / BUSINESS OWNERS
Date: [MONTH] [DAY], [YEAR]
Subject: [NAME OF PROJECT] – [Seven Day OR Two Day] Notice This notice is to inform you that the City of Cupertino, Department of Public Works, has contracted with [CONTRACTOR NAME] to [SCOPE OF WORK] along [STREET NAME] from [ADJACENT CROSS STREET] to [ADJACENT CROSS STREET].

This [SCOPE OF WORK] will mainly occur on [WEEKDAYS, SEE “SCHEDULE OF WORKING DAYS/HOURS”] from [START TIME] to [END TIME] and is scheduled to start in your area APPROXIMATELY seven days from the date of this notice and will continue from [START DATE] until [END DATE]. Please be aware that there may be construction activities that cause traffic delays.
[CONTRACTOR NAME] will make every effort to maintain normal traffic access and minimize disruption in your neighborhood. No Parking / Tow‐Away signs will be posted in affected areas two working days in advance of enforcement. Access to driveways will be maintained at ALL times during the construction.

Prior to activities in your immediate area, you will be sent a notification TWO WORKING DAYS before work begins. [CONTRACTOR NAME] and the City of Cupertino, Department of Public Works, apologize for any inconvenience due to these activities. If you have any questions or need assistance as these activities progress, please call the number(s) listed below:
[CONTRACTOR NAME]
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[NAME OF PROJECT MANAGER, CONTRACTOR)
Project Manager
(XXX) XXX‐XXXX (24-hour number)
City of Cupertino
(NAME OF CONSTRUCTION MANAGEMENT FIRM IF ONE)
(PERSON’S NAME FROM CONSTRUCTION MANAGEMENT FIRM)
(XXX) XXX‐XXXX (24-hour number)
City Office: (408)777-3354 Department of Public Works
Thank you for your patience and cooperation,
[NAME OF PROJECT MANAGER, CONTRACTOR], Project Manager
[NAME OF CONSTRUCTION FIRM]

12. EXISTING EQUIPMENT. Contractor will carefully remove all existing equipment from the Project site. If the City specifies or indicates that equipment is to be salvaged and reused or to remain the property of City then the Contractor will reuse or return the equipment to the City. Contractor will store and protect salvaged equipment specified to be reused in the Work. Contractor will deliver to the City in good condition the equipment that is to remain City property but not be reused in the Work.

If an item specified to be salvaged is damaged during its removal, storage, or handling through carelessness or improper procedures, then Contractor will replace that equipment in kind or with a new item. For those items specified to be salvaged Contractor may choose to instead furnish and install new equipment, in which case the original, removed items will become Contractor’s property. Existing materials and equipment removed by Contractor will only be reused in the Work if so specified or indicated by the City.

13. CONNECTIONS TO EXISTING FACILITIES. Unless otherwise specified or indicated, Contractor 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, Contractor will receive permission from City or the owning utility prior to undertaking connections and coordinate as needed to accommodate the facilities operations.

Contractor will protect facilities against deleterious substances and damage.

14. SUBMITTALS FOR QUALITY ASSURANCE. In the Technical Specifications, the City may specify quality assurance requirements, including qualifications for special skills and experience required of the Contractor. For any specified skill, the Contractor may use a subcontractor that specializes in the work and meets the performance requirements or the Contractor may self-perform the work, subject to demonstrating the necessary skill, experience, and/or certifications to perform the work.

15. ORDER OF WORK

15.1 Procure long lead time materials including signal poles, mast arms, pre-cast concrete blocks, etc.

15.2 Coordination with VTA and relocation of existing bus stop

15.3 Demolition and construction of bus pad, bus platform, curb, sidewalk, and other improvements on the southeast corner of Stevens Creek Blvd. and De Anza Blvd.
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15.4 Stake elevations points, construct forms, and gain written approval from City for concrete improvements

15.5 Traffic signal work

15.6 Roadway striping work

15.7 Installation of precast concrete curbs

16. VTA COORDINATION.

The Contractor shall coordinate with the City and Santa Clara Valley Transportation Authority (VTA) regarding the temporary relocation of the existing bus stop located at the southeast corner of the De Anza Boulevard and Stevens Creek Boulevard intersection to the temporary location as identified by VTA. The Contractor shall be responsible for obtaining any permits required from VTA (Construction Access Permit, Oversight Permit, etc.) and related permit fees and compensation shall be paid in the mobilization of the project specifications.

The City will contact VTA and obtain the contact information for the VTA representative responsible for assisting with the temporary relocation of the existing bus stop. The City will provide the Contactor the VTA representative contact information. VTA will notify the end users and temporarily relocate the bus stop. Please contact [email protected] or 408- 321-5800 for coordination of temporary bus stop and construction inspections. Please contact Victoria King at [email protected] or 408-321-5824 for permit applications.

The temporary bus stop shall be relocated and functioning prior to the demolition of concrete improvements near the bus stop at the southeast corner of Stevens Creek Blvd. and De Anza Blvd.

Prior to project close-out the Contractor shall be responsible for coordinating with the City and VTA regarding the removal of the temporary bus stop by VTA.

Contractor temporary bus stop relocation efforts shall be paid in the mobilization of the project specifications.

END OF SPECIAL CONDITIONS
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Cupertino City CouncilFebruary 4, 2025

Cupertino City Council
February 4, 2025