Agenda — Fountain Valley City Council, February 20, 2024 (part 2 of 3)

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suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer. The CITY, its officials, officers, agents, and employees, shall be included as insureds under the policy.

Builder’s risk insurance. Upon commencement of construction and with approval of CITY, CONTRACTOR shall obtain and maintain builder’s risk insurance as specified below.

The named insureds shall be CONTRACTOR, all Subcontractors (excluding those solely responsible for design Work) of any tier, suppliers, and CITY and its officers, officials, employees, and agents. CONTRACTOR shall not be required to maintain property insurance for any portion of the Project following transfer of control thereof to CITY.

Proof of insurance. CONTRACTOR shall provide certificates of insurance to CITY as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsement must be approved by CITY’s risk manager prior to commencement of performance. Current certification of insurance shall be kept on file with CITY at all times during the term of this AGREEMENT. CITY reserves the right to require complete, certified copies of all required insurance policies, at any time.

Duration of coverage. CONTRACTOR shall procure and maintain for the duration of the AGREEMENT insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by CONTRACTOR, his agents, representatives, employees or subcontractors. CONTRACTOR must maintain general liability and umbrella or excess liability insurance for as long as there is a statutory exposure to completed operations claims. CITY and its officers, officials, employees, and agents shall continue as additional insureds under such policies.

CITY’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, CITY has the right but not the duty to obtain the insurance it deems necessary and any premium paid by CITY will be promptly reimbursed by CONTRACTOR or CITY will withhold amounts sufficient to pay premium from CONTRACTOR payments. In the alternative, CITY may cancel this AGREEMENT.

Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the CITY’s risk manager.

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Waiver of subrogation. All insurance coverage maintained or procured pursuant to this AGREEMENT shall be endorsed to waive subrogation against CITY, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow CONTRACTOR or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. CONTRACTOR hereby waives its own right of recovery against CITY, and shall require similar written express waivers and insurance clauses from each of its subconsultants.

Enforcement of contract provisions (non estoppel). CONTRACTOR acknowledges and agrees that any actual or alleged failure on the part of the CITY to inform CONTRACTOR of noncompliance with any requirement imposes no additional obligations on the CITY nor does it waive any rights hereunder.

Requirements not limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.

Notice of cancellation. CONTRACTOR agrees to oblige its insurance agent or broker and insurers to provide to CITY with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.

Additional insured status. General liability policies shall provide or be endorsed to provide that CITY and its officers, officials, employees, and agents shall be additional insureds under such policies. This provision shall also apply to any excess liability policies.

CITY’s right to revise requirements. The CITY reserves the right at any time during the term of the AGREEMENT to change the amounts and types of insurance required by giving the CONTRACTOR a ninety (90)-day advance written notice of such change. If such change results in substantial additional cost to the CONTRACTOR, the CITY and CONTRACTOR may renegotiate CONTRACTOR’s compensation.

Self-insured retentions. Any self-insured retentions must be declared to and approved by CITY. CITY reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by CITY.

Timely notice of claims. CONTRACTOR shall give CITY prompt and timely notice of claims made or suits instituted that arise out of or result from CONTRACTOR’s performance under this AGREEMENT, and that involve or may involve coverage under any of the required liability policies.

Additional insurance. CONTRACTOR shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work.

30. Workers’ Compensation.
i. CONTRACTOR shall carry Workers’ Compensation Insurance and require all subcontractors to carry Workers’ Compensation Insurance as required by the Labor Code of the

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State of California. CONTRACTOR, by executing this AGREEMENT, hereby certifies:
“I am aware of the provisions of Section 3700 of the Labor Code 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 of this AGREEMENT.” ii. CONTRACTOR acknowledges that it is unlawful and a crime to intentionally make false statements about employees that misclassify their job duties to obtain lesser premium costs or for other improper purposes. CONTRACTOR agrees that if it makes false statements about its employees for the purpose of obtaining lower workers’ compensation premiums or for other unlawful purposes, it shall be considered a material breach of this AGREEMENT.

31. Bonds. Within the time period set forth in the CONTRACT DOCUMENTS and prior to commencing the Work on the Project, the CONTRACTOR shall file with the CITY good and sufficient labor and material payment bond (Payment Bond) and performance bond (Performance Bond) in the amount of one hundred percent (100%) of the Contract Sum covering performance of the Work other than the professional design services portion of the Work. The Performance Bond and Payment Bond shall be in the form required by the CONTRACT DOCUMENTS. The amounts of the Payment Bond and Performance Bond shall be increased as, when and in the amount of any Change Orders that are executed increasing the Contract Sum, the CONTRACTOR shall, upon request by the CITY, provide evidence of such increases. Should the Payment Bond or Performance Bond or any Surety on such bond become or be determined by the CITY to be insufficient, it shall be replaced within ten days by a bond that fully complies with the requirements of this Section. No further payments to the AGREEMENT for the Work performed shall be made or due until the CONTRACTOR has fully complied with the requirements of this Section.

Duration. The Payment Bond shall remain in effect until acceptance of the Work and payment of all stop notices and claims by the CONTRACTOR or the Subcontractors, of any Tier, have been satisfied. The Performance Bond shall remain in effect and assure faithful performance of all the CONTRACTOR’s obligations under the CONTRACT DOCUMENTS, including, without limitation, all obligations that survive final completion or termination, such as, but not limited to, CONTRACTOR’s warranty, commissioning and indemnity obligations.

Surety. At the time the AGREEMENT is signed and at all times thereafter until Final Payment has been made by the CITY, the Surety on the Payment Bond shall be an Admitted Surety and the Surety on the Performance Bond shall be a licensed Surety in good standing with the California Department of Insurance, and having an A.M. Best's Insurance Rating of not less than A-: VI.

Premiums. The premiums for all bonds are included in the Contract Sum and shall be paid by the CONTRACTOR.

Obligee. The Payment Bond and Performance Bond shall each name the CITY as obligee.

All bonds purchased by the Subcontractors shall name the CONTRACTOR and the CITY as dual obligees.

No exoneration. Changes, Change Orders, Unilateral Change Orders, Field Orders, Modifications and adjustments to the Contract Sum or Contract Time shall in no way release or

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exonerate the CONTRACTOR or its Surety from their obligations, and notice thereof shall be waived by the Surety. The foregoing provision shall be included in the terms of the Payment Bond, Performance Bond and any bonds obtained by the Subcontractors.

Communications. The CITY shall have the right to communicate with the CONTRACTOR’s sureties with respect to matters that are related to the CONTRACTOR’s performance of its obligations under the CONTRACT DOCUMENTS. Such communications shall not create, or be interpreted as creating, any contractual relationship between the CITY and the Surety.

No limitation. The requirements of this Section pertaining to the Performance Bond and the Payment Bond shall be without limitation to any other obligations the CONTRACTOR may have under Applicable Law to provide bonding for the benefit of and to assure payment to the Subcontractors or Subconsultants performing the Work for the Project.

TERMINATION

32. Termination.

A. If CONTRACTOR should fail to comply with any of the provisions hereof, or in the event CONTRACTOR should become the subject of a proceeding under state or federal law for relief of debtors, or if CONTRACTOR makes an assignment for the benefit of creditors, CITY shall have the right to hold CONTRACTOR in default and cancel this AGREEMENT in whole or in part.

B. Should CONTRACTOR, at any time during the progress of the work, refuse or neglect to supply sufficient material or labor, or fail in compliance with any provision of this AGREEMENT, CITY shall have the right, without prejudice to any other right or remedy it may have, to provide such materials and labor, or make good such deficiencies as CITY may deem expedient after three (3) days notice in writing, delivered or mailed to CONTRACTOR at his last address on file with CITY, and CONTRACTOR shall be liable for the cost and expense thereof which may be deducted by CITY from any money due or that may become due CONTRACTOR.

C. Without limiting any rights which CITY may have by reason of any default by CONTRACTOR hereunder, CITY reserves the right to terminate this AGREEMENT in whole or in part at its convenience. In such event CITY shall compensate CONTRACTOR, subject to deduction for previous payments and authorized deductions: (i) by reimbursing CONTRACTOR for reasonable and necessary expenditures and costs that are actually incurred in performing under this AGREEMENT, (ii) by reimbursing CONTRACTOR for reasonable and necessary expenditures made and costs actually incurred with CITY’s prior written approval in settling or discharging outstanding commitments entered into by CONTRACTOR in performing under this AGREEMENT, and (iii) by paying CONTRACTOR as a profit, insofar as a profit is realized hereunder, an amount equal to the profit on the entire AGREEMENT estimated at the time of termination, multiplied by the percentage of completion of the reasonable and necessary work on the PROJECT. In no event, however, will the compensation to CONTRACTOR exceed the total AGREEMENT price less payments previously made and less the AGREEMENT price of work not terminated. Upon receipt of any notice of termination, CONTRACTOR shall, unless the notice otherwise directs, (i) immediately discontinue the work and the placing of all orders and subcontracts in connection with this AGREEMENT, (ii) immediately cancel all existing orders and subcontracts made hereunder, and (iii) immediately transfer to CITY all materials, supplies, work-in-process, appliances, facilities, equipment, machinery, and tools acquired by CONTRACTOR in connection with the performance of this AGREEMENT.

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CLAIM RESOLUTION

33. Resolution of Claims. For all claims that are Three Hundred Seventy-Five Thousand Dollars ($375,000.00) or less, the provisions of Public Contract Code Section 20104 et seq. (Article 1.5 - Resolution of Construction Claims) shall be followed.

34. Notice to Contractor of Claims. CITY shall provide notice to CONTRACTOR upon receipt of any third-party claim related to the AGREEMENT.

CONTRACT DOCUMENTS AND INTERPRETATION

35. Other Documents Included. It is further agreed by the parties hereto that the following documents are incorporated herein by reference and are to be read and construed together as the full, complete, and integrated terms of this AGREEMENT and, collectively with this AGREEMENT, may be referred to as the CONTRACT DOCUMENTS:

A. Notice Inviting Bids
B. Instructions to Bidders
C. General Provisions (incorporating portions of the Caltrans Standard Specifications)
D. Special Provisions (Construction Details)
E. Construction Provisions (Individual Bid Items)
F. Proposal
G. Construction Plans
H. City Public Works Standard Plans
I. City Request for Change Order/Change Order
J. Notice to Proceed
K. Labor and Materials Bond
L. Performance Bond
M. Final Closeout Agreement

36. Interpretation of Incorporated Documents. In the event of any conflict, inconsistency, or incongruity between the provisions of this AGREEMENT and the provisions of any document listed in Section 35 hereof, the provisions of this AGREEMENT shall prevail unless a contrary intent is shown. The parties acknowledge that the Caltrans Standard Specifications is a document that is prepared for use in state street projects and is to be used to supplement this AGREEMENT. As used in the those Standard Specifications, “Engineer” shall refer to CITY’s Director of Public Works-City Engineer, the Attorney General shall mean the Attorney for the City, and laws that pertain exclusively to state projects or contracts shall not apply but instead those provisions pertaining to CITY projects and CITY contracts shall be applied. To the extent the Standard Specifications provide for additional procedures that are not inconsistent with the provisions of this AGREEMENT, those additional procedures shall be interpreted to supplement this AGREEMENT.

This AGREEMENT shall be interpreted as though it had been drafted by the CITY and the CONTRACTOR equally. This AGREEMENT shall be interpreted according to the laws of the State of California.

37. Integration/No Oral Modifications. This AGREEMENT integrates all understandings of the parties. Any amendment to this AGREEMENT must be made in writing and signed by the parties with legal authority to execute the same. CONTRACTOR is aware that CITY is a general law city and that, pursuant to Government Code Section 40602, contract amendments

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may only be entered into by compliance with those formalities. Notwithstanding the above, requests for additional time or compensation may be made by following the procedures and using the form incorporated into this AGREEMENT. The limits of authority to enter into such amendments (change orders) shall be those provided in Section 22 of this AGREEMENT.

38. Effect of Invalidity. The invalidity in whole or in part of any provision hereof shall not affect the validity of any other provision.

MISCELLANEOUS

39. Discrimination, Minorities, Aliens. The CONTRACTOR shall not discriminate nor allow its employees, agents, principals, or subcontractors to discriminate against any employee or applicant for employment on the basis of race, religious creed, national origin, or sex.

CONTRACTOR shall take affirmative steps to hire qualified minority individuals when job opportunities occur and utilize local business firms when possible and when consistent with California Constitution Article 1, Section 31 (a) [Proposition 209].

40. Equal Employment Opportunity. CONTRACTOR shall comply with all provisions of Executive Order 11246, entitled “Equal Employment Opportunity” and amended by Executive Order 11375, and as supplemented in Department of Labor Regulations (41 CFR part 60).

41. Drug-Free Work. CONTRACTOR agrees to provide a drug-free workplace in accordance with 24 CFR part 24, sub-part F. Under 24 CFR part 24, sub-part F, the CONTRACTOR will provide certification in writing that it will provide a drug-free workplace by:
(a) Publicizing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying the action it will take against employees for violation of such prohibition;
(b) Establishing an ongoing drug-free awareness program to inform employees about:

1. Degrees of drug abuse in the workplace;

2. The policy of maintaining a drug-free workplace;

3. Any available drug counseling, rehabilitation, and employee assistance programs; and

4. The penalties which may be imposed on employees for drug abuse violations occurring in the workplace.
(c) Making it a requirement that every employee to be engaged in the performance of the AGREEMENT be given a copy of the statement required by Subsection (a); (d) Notifying employees in the statement required by Subsection (a) that as a condition of employment under the AGREEMENT the employee will:

1. Abide by the term of the statement; and

2. Notify the employer in writing of any conviction for a violation of a criminal drug statute occurring in the workplace no later than five (5) calendar days after such conviction.

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(e) Notifying CITY in writing within ten (10) calendar days after receiving notice under Subsection (d)(2) from an employee or otherwise receiving actual notice of such conviction. Employer of said convicted employee must provide notice, including conviction title, to the CITY;
(f) Taking one of the following actions, within thirty (30) calendar days of receiving notice under Subsection (d)(2), with respect to any employee who is so convicted:

1. Taking appropriate action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or

2. Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency. (g) Making a good faith effort to continue to maintain a drug-free workplace through implementation of Sections (a), (b), (c), (d), (e), and (f).

42. Permits. The CONTRACTOR shall obtain from the CITY, County, State, or other responsible public agencies all licenses and permits, and pay all fees related thereto, necessary to complete the job.

43. Assignment. No assignment by the CONTRACTOR of this AGREEMENT or any part hereof, or of funds to be received hereunder, will be recognized by the CITY unless such assignment has had prior written approval and consent of the CITY and the Surety.

44. Safety and Site Condition. CONTRACTOR shall perform all operations with due regard for safety and in strict compliance with all applicable laws relating thereto. It shall be CONTRACTOR’s responsibility to keep the site in a clean, neat, and orderly condition. It shall also be CONTRACTOR’s duty to dust-palliate all working areas and access routes, if applicable. All operations shall be conducted by CONTRACTOR so that no fire hazards are created.

45. Utility Location. CITY acknowledges its responsibilities with respect to locating facilities pursuant to California Government Code Section 4215.

46. Trenching. If this AGREEMENT involves digging trenches or other excavations that extend deeper than four feet (4’) below the surface, CONTRACTOR shall promptly, and before the following conditions are disturbed, notify the CITY in writing, of any:
(a) Material that the CONTRACTOR believes may be material that is hazardous waste, as defined in Section 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 provisions of existing law.
(b) Subsurface or latent physical conditions at the site differing from those indicated. (c) Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the AGREEMENT.

The CITY shall promptly investigate the conditions, and if it finds that the conditions do

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materially so differ, or do involve hazardous waste, and cause a decrease or increase in the CONTRACTOR’s cost of, or the time required for, performance of any part of the work shall issue a change order in accordance with the procedures described in this AGREEMENT.

In the event that a dispute arises between the CITY and the CONTRACTOR whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the CONTRACTOR’s cost of, or time required for, performance of any part of the work, the CONTRACTOR shall not be excused from any scheduled completion date provided for by the AGREEMENT but shall proceed with all work to be performed under the AGREEMENT. The CONTRACTOR shall retain any and all rights provided either by this AGREEMENT or by law which pertain to the resolution of disputes and protests between the contracting parties provided that CONTRACTOR complies with Section 22 when asserting such claim.

47. Notices. The parties hereto agree that all formal notices required by this AGREEMENT may be provided to the following persons at the following addresses by sending the same by certified or registered mail as follows:

CITY: City Clerk
Fountain Valley City Hall
10200 Slater Avenue
Fountain Valley, California 92708
CONTRACTOR: DASH Construction Company, Inc.
6300 Canoga Avenue, Suite 530
Woodland Hills, CA 91367
____________________________

48. Gratuities. CONTRACTOR warrants that neither it nor any of its employees, agents, or representatives has offered or given any gratuities to CITY’s employees, agents, or representatives with a view toward securing this AGREEMENT or securing favorable treatment with respect thereto.

49. Conflict of Interest. CONTRACTOR warrants that he has no blood or marriage relationship with, and that he is not in any way associated with, any architect, engineer, or other preparer of the plans and specifications for this project.

50. Copeland "Anti-Kickback" Act. If applicable to this AGREEMENT, CONTRACTOR and its subcontractors shall comply with the provisions of the Copeland “AntiKickback” Act (18 U.S.C. Section 874), as supplemented in Department of Labor regulations, which Act provides that each contractor shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of any public work, to give up any part of the compensation to which he is otherwise entitled.

51. Attorney’s Fees. In any action or proceeding brought by either party against the other party arising out of or in any way connected to this AGREEMENT, or where any provision hereof is validly asserted as a defense, the parties shall bear their own attorney’s fees, costs, and expenses. Nothing in this provision shall excuse CONTRACTOR’s duty to provide CITY with a defense at CONTRACTOR’s cost when CITY receives a complaint, petition, or other pleading from a third party requiring CITY to defend itself.

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52. Assignment of Rights. Pursuant to Section 7103.5 of the Public Contract Code, in entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the contractor or subcontractor offers and agrees to assign to the awarding body 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. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the awarding body tenders final payment to the contractor, without further acknowledgment by the parties.

53. SCAQMD and CARB Compliance. CONTRACTOR agrees to comply with all South Coast Air Quality Management District (SCAQMD) and California Air Resources Board (CARB) requirements, including, but not limited to, compliance with CARB Regulations limiting idling of self-propelled diesel-fueled on-road and off-road vehicles and equipment (25 HP and up) to no more than five (5) consecutive minutes as specified in Title 13 of the California Code of Regulations, section 2449 (d)(2), Idling.

54. Mined Construction Materials. CONTRACTOR shall not purchase mined construction material except from a mining operation that is currently identified in the list published pursuant to subdivision (b) of Section 2717 of the Public Resources Code. Refer to the current 3098 list for qualified mining operations at www.consrv.ca.gov/OMR/ab_3098_list/current_list.

IN WITNESS WHEREOF, the parties hereto have entered into this AGREEMENT the date and year first above written.

ATTEST: CITY OF FOUNTAIN VALLEY
City Clerk Mayor
APPROVED AS TO FORM:

HARPER & BURNS LLP

CONTRACTOR
Name: DASH Construction Company, Inc.

Attorneys for the City
Address: 6300 Canoga Avenue, Suite 530
Woodland Hills, CA 91367
APPROVED AS TO CONTENT:

By: Dariush Shahnavaz, President
______________________________
Director of Public Works

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State of California )
County of _____________________________ )
On __________________________ before me, __________________________________________, Date Here insert Name and Title of the Officer
Personally appeared ________________________________________________________________ Name(s) of Signer(s)
____________________________________________________________________________________, 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 and official seal.

Signature____________________________________
Signature of Notary Public
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 truthfulness, accuracy, or validity of that document.

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PAYMENT BOND
PAGE 1
Bond No.

CITY OF FOUNTAIN VALLEY

PAYMENT BOND
(LABOR AND MATERIAL BOND)
KNOW ALL MEN BY THESE PRESENTS:

THAT, WHEREAS, CITY OF FOUNTAIN VALLEY, a municipal corporation, by minute order of the City Council, adopted on ___________________, has awarded to DASH Construction Company, Inc.
6300 Canoga Avenue, Suite 530
Woodland Hills, CA 91367
hereinafter designated as the “PRINCIPAL,” an AGREEMENT for the work described as follows:

Rehabilitation and Resurfacing of Warner Avenue and Ellis Avenue from Brookhurst Street to Bushard Street and Improvements on Slater Avenue, Project No. 24010. Said AGREEMENT is fully incorporated herein by reference.

WHEREAS, said PRINCIPAL is required by the provisions of said AGREEMENT and of the Civil Code to furnish a bond in connection with said AGREEMENT, as hereinafter set forth.

NOW, THEREFORE, WE, the undersigned CONTRACTOR, as PRINCIPAL, and (Name and Address of Surety)
hereinafter designated as the “SURETY,” duly authorized to transact business under the laws of the State of California, as SURETY, are held and firmly bound unto the City of Fountain Valley, in the penal sum of: _____________________ ($_______), said sum being not less than one hundred percent (100%) of the estimated amount payable under the terms of the AGREEMENT for which payment well and truly be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH that, if said PRINCIPAL or his subcontractors, or the heirs, executors, administrators, successors, or assigns thereof, shall fail to pay any person or party listed in California Civil Code Section 9554(b), including any of the persons named in Section 9100 of the Civil Code of the State of California for any materials, provisions,

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provender, or other supplies used in, upon, for, or about the performance of the work contracted to be done, or for any work or labor performed by any such claimant or any amounts require deducted, withheld, and paid over to the Employment Development Division from the wages of employees of the CONTRACTOR and his subcontractors pursuant to Section 13020 of the Unemployment Insurance Code, with respect to such work and labor, then said SURETY will pay for the same, in an amount not exceeding the sum set forth hereinabove, and in addition, in case suit is brought upon the bond, will pay a reasonable attorney’s fee to be fixed by the court. This bond shall inure to the benefit of any and all persons named in the aforesaid Civil Code Section 9100 so as to give a right of action to them or their assigns in any suit brought upon the bond.

PAYMENT BOND
PAGE 2
Bond No.

Further, the said SURETY, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or modification of the AGREEMENT documents or of the work to be performed thereunder shall in any way affect its obligation on this bond, and it hereby waives notice of any and all such changes, extensions of time, and alterations or modifications of the AGREEMENT documents and/or of the work to be performed thereunder.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this day of , 2024.

DASH Construction Company, Inc.
6300 Canoga Avenue, Suite 530
Woodland Hills, CA 91367

PRINCIPAL
By: Dariush Shahnavaz, President
Company Representative
In accordance with the AGREEMENT for Rehabilitation and Resurfacing of Warner Avenue and Ellis Avenue from Brookhurst Street to Bushard Street and Improvements on Slater Avenue, Project No. 24010, all bonds shall have been issued by an admitted surety insurer, and the CITY reserves the right to object to any such surety, in accordance with Code of Civil Procedure Section 995.660.

By signing below, SURETY certifies that the bonds are issued by admitted surety.

SURETY
By:

Company Representative
APPROVED AS TO FORM:

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HARPER & BURNS LLP
Attorneys for the City
City of Fountain Valley
By /s/

FAITHFUL PERFORMANCE BOND
PAGE 1
Bond No.

CITY OF FOUNTAIN VALLEY

FAITHFUL PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:

WHEREAS, the said PRINCIPAL is required under the terms of said AGREEMENT to furnish a bond for the faithful performance of said AGREEMENT.

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

FAITHFUL PERFORMANCE BOND
PAGE 2
Bond No.

In case suit is brought upon this bond, each party shall bear its own costs and attorney fees.

And the said SURETY, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the AGREEMENT or to the work to be performed thereunder or the specifications accompanying the same shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition to the terms of the AGREEMENT or to the work or to the specifications.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this day of , 2024.

DASH Construction Company, Inc.
6300 Canoga Avenue, Suite 530
Woodland Hills, CA 91367

PRINCIPAL
By: Dariush Shahnavaz, President
Company Representative
Rehabilitation and Resurfacing of Warner Avenue and Ellis Avenue from Brookhurst Street to Bushard Street and Improvements on Slater Avenue, Project No. 24010 all bonds shall have been issued by an admitted surety insurer, and the CITY reserves the right to object to any such surety, in accordance with Code of Civil Procedure Section 995.660.

By signing below, SURETY certifies that the bonds are issued by admitted surety.

SURETY

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By:

Company Representative
APPROVED AS TO FORM:

HARPER & BURNS LLP
Attorneys for the City
City of Fountain Valley
By /s/

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475 Goddard, Suite 200 | Irvine, California 92618 | p. 949.753.7070 | www.ninyoandmoore.com October 19, 2023
Proposal No. 211984000D
Mr. Ryan Damon
Public Works Department
City of Fountain Valley
10200 Slater Avenue
Fountain Valley, California 92708
Subject: Proposal for Materials Testing Services
Rehabilitation and Resurfacing of Warner Avenue and Ellis Avenue Project Number 24010
Fountain Valley, California
Dear Mr. Damon:

In accordance with your request, Ninyo & Moore is pleased to submit this proposal to provide materials testing services during construction of the Rehabilitation and Resurfacing of Warner Avenue and Ellis Avenue located in Fountain Valley, California. Based on our review of the project plans and specifications, we understand that the project will generally consist of asphalt concrete (AC) leveling course and asphalt rubber hot mix (ARHM) overlay at various locations, as well as various concrete improvements. The project estimated quantities include 2,622 tons of AC, 5,260 tons of ARHM, 3,310 linear feet of curb and gutter, 2,650 square feet (SF) of sidewalk, 10 curb ramps, 19 driveway and driveway approaches, 2 concrete bus pads and 6,500 SF of cross gutters.

Our scope of services is anticipated to include AC and ARHM field sampling and testing and concrete field sampling and testing.

SCOPE OF SERVICES
Based on the information outlined above, our current understanding of the project, and our experience with similar projects, we propose the following services:
• Project coordination and management, including review of the project plans and specifications. • Attendance at pre-construction meetings and field meetings, as requested. • Field technician services for observation, sampling, testing and documentation during ARHM and AC pavement placement, including sampling the complete mix, checking temperature, checking layer thickness, and density testing with the nuclear gauge. • Field technician services for observation, sampling and testing of concrete including checking mix design, temperature, slump and fabrication of compressive strength samples.

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Ninyo & Moore | Warner Avenue and Ellis Avenue, Fountain Valley, California | 211984000D | October 19, 2023 2 • Laboratory testing services including but not limited to Hveem stability, unit weight, asphalt content and after extraction gradation on AC and ARHM materials and compressive strength tests on concrete
• Preparation of field observation reports and test data sheets. Our documents will be made available to our client on a daily basis or provided as requested.

ASSUMPTIONS
The following assumptions have been made in the preparation of our scope of services:
• Our services will be scheduled and coordinated by our client’s field inspector or project manager on an as-needed basis.
• Preparation of a Final Compaction Report will not be requested. • Our services are subject to prevailing wage requirements. • Batch plant inspection services will not be requested.

ESTIMATED FEE
We propose to provide our services on a time-and-materials basis in accordance with the attached Schedule of Fees. Our estimated fee for the scope of services described herein is presented in the attached Table 1.

Ninyo & Moore appreciates the opportunity to submit this proposal and looks forward to working with you on this project.

Respectfully submitted,

NINYO & MOORE
Randy L. Reichert
Project Manager
Alfredo “Tino” Rodriguez
Principal, Construction Services

RAR/AR/
Attachments: Table 1 – Breakdown of Estimated Fee
Schedule of Fees

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Field Technician - AC / ARHM Pavement Placement 58 hours @ 110.00$ /hour $ 6,380.00 Field Technician - Concrete Sampling and Testing 8 hours @ 110.00$ /hour $ 880.00 Field Vehicle and Equipment Usage 66 hours @ $ 15.00 /hour $ 990.00 Subtotal $ 8,250.00
Hveem Stability and Unit Weight - AC and ARHM 5 tests @ 225.00$ /test $ 1,125.00 Extraction, % Asphalt incl. Gradation - AC and ARHM 5 tests @ 250.00$ /test $ 1,250.00 Compressive Strength - Concrete 8 tests @ $ 35.00 /test $ 280.00 Subtotal $ 2,655.00
Senior Project Engineer/Geologist/Environmental Scientist 6 hours @ 195.00$ /hour $ 1,170.00 Subtotal $ 1,170.00
TOTAL ESTIMATED FEE $ 12,075.00
Table 1 – Breakdown of Estimated Fee
Project Management and Technical Support
Field Services
Laboratory Testing
Ninyo & Moore | Warner Avenue and Ellis Avenue, Fountain Valley, California | 211984000D | CA14 | October 19, 2023 1

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Ninyo & Moore | Warner Avenue and Ellis Avenue, Fountain Valley, California | 211984000D | October 19, 2023 CA14 Schedule of Fees
Hourly Charges for Personnel
Professional Staff
Principal Engineer/Geologist/Environmental Scientist/Certified Industrial Hygienist ...............................................$ 210 Senior Engineer/Geologist/Environmental Scientist .................................................................................................$ 200 Senior Project Engineer/Geologist/Environmental Scientist.....................................................................................$ 195 Project Engineer/Geologist/Environmental Scientist ................................................................................................$ 185 Senior Staff Engineer/Geologist/Environmental Scientist.........................................................................................$ 170 Staff Engineer/Geologist/Environmental Scientist ....................................................................................................$ 155 GIS Analyst................................................................................................................................................................$ 130 Technical Illustrator/CAD Operator ...........................................................................................................................$ 110 Field Staff
Certified Asbestos/Lead Technician..........................................................................................................................$ 195 Field Operations Manager.........................................................................................................................................$ 130 Nondestructive Examination Technician (UT, MT, LP).............................................................................................$ 125 Supervisory Technician.............................................................................................................................................$ 120 Special Inspector (Concrete, Masonry, Structural Steel, Welding, and Fireproofing)..............................................$ 115 Senior Technician......................................................................................................................................................$ 110 Technician .................................................................................................................................................................$ 110 Administrative Staff
Information Specialist ................................................................................................................................................$ 90 Geotechnical/Environmental/Laboratory Assistant...................................................................................................$ 95 Data Processor..........................................................................................................................................................$ 75 Other Charges
Concrete Coring Equipment (includes technician) ............................................................................................. $ 190/hr Anchor Load Test Equipment (includes technician)........................................................................................... $ 190/hr GPR Equipment .................................................................................................................................................. $ 180/hr Inclinometer......................................................................................................................................................... $ 100/hr Hand Auger Equipment....................................................................................................................................... $ 80/hr Rebar Locator (Pachometer) .............................................................................................................................. $ 25/hr Vapor Emission Kit.............................................................................................................................................. $ 65/kit Nuclear Density Gauge....................................................................................................................................... $ 12/hr X-Ray Fluorescence............................................................................................................................................ $ 70/hr PID/FID................................................................................................................................................................ $ 25/hr Air Sampling Pump ............................................................................................................................................. $ 10/hr Field Vehicle........................................................................................................................................................ $ 15/hr Expert Witness Testimony .................................................................................................................................. $ 450/hr Direct Expenses .................................................................................................................................... Cost plus 15 % Special equipment charges will be provided upon request.

Notes
For field and laboratory technicians and special inspectors, overtime rates at 1.5 times the regular rates will be charged for work performed in excess of 8 hours in one day Monday through Friday and all day on Saturday. Rates at twice the regular rates will be charged for all work in excess of 12 hours in one day, all day Sunday and on holidays.

Field technician and special inspection hours are charged at a 4-hour minimum, and 8-hour minimum for hours exceeding 4 hours.

Invoices are payable upon receipt. A service charge of 1.5 percent per month may be charged on accounts not paid within 30 days.

Our rates will be adjusted in conjunction with the increase in the Prevailing Wage Determination during the life of the project, as applicable.

The terms and conditions are included in Ninyo & Moore’s Work Authorization and Agreement form.

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Ninyo & Moore | 2021 Laboratory Testing
Schedule of Fees for Laboratory Testing

SOILS CONCRETE
Atterberg Limits, D 4318, CT 204..............................................................$ 170 Compression Tests, 6x12 Cylinder, C 39 ...................................................$ 35 California Bearing Ratio (CBR), D 1883....................................................$ 550 Concrete Mix Design Review, Job Spec.....................................................$ 300 Chloride and Sulfate Content, CT 417 & CT 422 .....................................$ 175 Concrete Mix Design, per Trial Batch, 6 cylinder, ACI...............................$ 850 Consolidation, D 2435, CT 219..................................................................$ 300 Concrete Cores, Compression (excludes sampling), C 42 .......................$ 120 Consolidation, Hydro-Collapse only, D 2435............................................$ 150 Drying Shrinkage, C 157..............................................................................$ 400 Consolidation – Time Rate, D 2435, CT 219............................................$ 200 Flexural Test, C 78 .......................................................................................$ 85 Direct Shear – Remolded, D 3080 ............................................................$ 350 Flexural Test, C 293 .....................................................................................$ 85 Direct Shear – Undisturbed, D 3080 .........................................................$ 300 Flexural Test, CT 523...................................................................................$ 95 Durability Index, CT 229.............................................................................$ 175 Gunite/Shotcrete, Panels, 3 cut cores per panel and test, ACI.................$ 275 Expansion Index, D 4829, IBC 18-3..........................................................$ 190 Lightweight Concrete Fill, Compression, C 495 .........................................$ 80 Expansion Potential (Method A), D 4546..................................................$ 170 Petrographic Analysis, C 856 ......................................................................$ 2,000 Geofabric Tensile and Elongation Test, D 4632.......................................$ 200 Restrained Expansion of Shrinkage Compensation ..................................$ 450 Hydraulic Conductivity, D 5084..................................................................$ 350 Splitting Tensile Strength, C 496.................................................................$ 100 Hydrometer Analysis, D 422, CT 203........................................................$ 220 3x6 Grout, (CLSM), C 39 .............................................................................$ 55 Moisture, Ash, & Organic Matter of Peat/Organic Soils ...........................$ 120 2x2x2 Non-Shrink Grout, C 109 ..................................................................$ 55 Moisture Only, D 2216, CT 226 .................................................................$ 35 Moisture and Density, D 2937 ...................................................................$ 45 ASPHALT Permeability, CH, D 2434, CT 220 ............................................................$ 300 Air Voids, T 269 ............................................................................................$ 85 pH and Resistivity, CT 643.........................................................................$ 175 Asphalt Mix Design, Caltrans (incl. Aggregate Quality).............................$ 4,500 Proctor Density D1557, D 698, CT 216, AASHTO T-180........................$ 220 Asphalt Mix Design Review, Job Spec .......................................................$ 180 Proctor Density with Rock Correction D 1557 ..........................................$ 340 Dust Proportioning, CT LP-4........................................................................$ 85 R-value, D 2844, CT 301 ...........................................................................$ 375 Extraction, % Asphalt, including Gradation, D 2172, CT 382....................$ 250 Sand Equivalent, D 2419, CT 217.............................................................$ 125 Extraction, % Asphalt without Gradation, D 2172, CT 382........................$ 150 Sieve Analysis, D 6913, CT 202................................................................$ 145 Film Stripping, CT 302..................................................................................$ 120 Sieve Analysis, 200 Wash, D 1140, CT 202.............................................$ 100 Hveem Stability and Unit Weight D 1560, T 246, CT 366 .........................$ 225 Specific Gravity, D 854...............................................................................$ 125 Marshall Stability, Flow and Unit Weight, T 245.........................................$ 240 Thermal Resistivity (ASTM 5334, IEEE 442)............................................$ 925 Maximum Theoretical Unit Weight, D 2041, CT 309..................................$ 150 Triaxial Shear, C.D, D 4767, T 297 ...........................................................$ 550 Moisture Content, CT 370............................................................................$ 95 Triaxial Shear, C.U., w/pore pressure, D 4767, T 2297 per pt ................$ 450 Moisture Susceptibility and Tensile Stress Ratio, T 238, CT 371 .............$ 1,000 Triaxial Shear, C.U., w/o pore pressure, D 4767, T 2297 per pt.......................$ 350 Slurry Wet Track Abrasion, D 3910.............................................................$ 150 Triaxial Shear, U.U., D 2850......................................................................$ 250 Superpave, Asphalt Mix Verification (incl. Aggregate Quality)..................$ 4,900 Unconfined Compression, D 2166, T 208.................................................$ 180 Superpave, Gyratory Unit Wt., T 312..........................................................$ 100 Superpave, Hamburg Wheel, 20,000 passes, T 324.................................$ 1,000 MASONRY Unit Weight sample or core, D 2726, CT 308.............................................$ 100 Brick Absorption, 24-hour submersion, 5-hr boiling, 7-day, C 67............$ 70 Voids in Mineral Aggregate, (VMA) CT LP-2..............................................$ 90 Brick Compression Test, C 67...................................................................$ 55 Voids filled with Asphalt, (VFA) CT LP-3 ....................................................$ 90 Brick Efflorescence, C 67...........................................................................$ 55 Wax Density, D 1188................................................................................... $ 140 Brick Modulus of Rupture, C 67.................................................................$ 50 Brick Moisture as received, C 67...............................................................$ 45 AGGREGATES Brick Saturation Coefficient, C 67..............................................................$ 60 Clay Lumps and Friable Particles, C 142 ...................................................$ 180 Concrete Block Compression Test, 8x8x16, C 140 .................................$ 70 Cleanness Value, CT 227............................................................................$ 180 Concrete Block Conformance Package, C 90..........................................$ 500 Crushed Particles, CT 205...........................................................................$ 175 Concrete Block Linear Shrinkage, C 426..................................................$ 200 Durability, Coarse or Fine, CT 229..............................................................$ 205 Concrete Block Unit Weight and Absorption, C 140 ................................$ 70 Fine Aggregate Angularity, ASTM C 1252, T 304, CT 234 .......................$ 180 Cores, Compression or Shear Bond, CA Code........................................$ 70 Flat and Elongated Particle, D 4791 ...........................................................$ 220 Masonry Grout, 3x3x6 prism compression, C 39 .....................................$ 45 Lightweight Particles, C 123 ........................................................................$ 180 Masonry Mortar, 2x4 cylinder compression, C 109..................................$ 35 Los Angeles Abrasion, C 131 or C 535.......................................................$ 200 Masonry Prism, half size, compression, C 1019 ......................................$ 120 Material Finer than No. 200 Sieve by Washing, C 117..............................$ 90 Masonry Prism, Full size, compression, C 1019 ......................................$ 200 Organic Impurities, C 40 ..............................................................................$ 90 Potential Alkali Reactivity, Mortar Bar Method, Coarse, C 1260...............$ 1,250 REINFORCING AND STRUCTURAL STEEL Potential Alkali Reactivity, Mortar Bar Method, Fine, C 1260....................$ 950 Chemical Analysis, A 36, A 615.................................................................$ 135 Potential Reactivity of Aggregate (Chemical Method), C 289 ...................$ 475 Fireproofing Density Test, UBC 7-6 ..........................................................$ 90 Sand Equivalent, T 176, CT 217 .................................................................$ 125 Hardness Test, Rockwell, A 370 ...............................................................$ 80 Sieve Analysis, Coarse Aggregate, T 27, C 136........................................$ 120 High Strength Bolt, Nut & Washer Conformance, Sieve Analysis, Fine Aggregate (including wash), T 27, C 136 ................$ 145 per assembly, A 325 .............................................................................$ 150 Sodium Sulfate Soundness, C 88 ...............................................................$ 450 Mechanically Spliced Reinforcing Tensile Test, ACI................................$ 175 Specific Gravity and Absorption, Coarse, C 127, CT 206 .........................$ 115 Pre-Stress Strand (7 wire), A 416..............................................................$ 170 Specific Gravity and Absorption, Fine, C 128, CT 207 ..............................$ 175 Reinforcing Tensile or Bend up to No. 11, A 615 & A 706.......................$ 75 Structural Steel Tensile Test: Up to 200,000 lbs., A 370 .........................$ 90 ROOFING Welded Reinforcing Tensile Test: Up to No. 11 bars, ACI.......................$ 80 Roofing Tile Absorption, (set of 5), C 67.....................................................$ 250 Roofing Tile Strength Test, (set of 5), C 67 ................................................$ 250 Special preparation of standard test specimens will be charged at the technician’s hourly rate.

Ninyo & Moore is accredited to perform the AASHTO equivalent of many ASTM test procedures.

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CITY OF FOUNTAIN VALLEY

CITY COUNCIL

COUNCIL ACTION REQUEST
To: Honorable Mayor and Agenda Date: February 20, 2024
Members of the City Council
SUBJECT: Fountain Valley Sports Park Restroom Repairs

1. Approve the Construction Contract for Capital Improvements City of Fountain Valley Sourcewell ezIQC Contract Horizons Construction Company Int’l Inc. for the Fountain Valley Sports Park Restroom Repairs in the Not-to-Exceed Amount of $151,359.16.

2. Approve offsetting Budget Amendments of $128,027 to revenue and expense.

Three-Year Strategic Goals
☒ Enhance the culture and environment of “A Nice Place to Live.” ☐ Achieve fiscal stability by evaluating processes, and attract and retain revenue producing businesses/opportunities
☐ Attract and retain quality staff through best practices and trends ☐ Maintain, build, and modernize infrastructure to support growth and future needs of the City ☐ Not applicable
EXECUTIVE SUMMARY:

In July 2023, a city-owned restroom within the Fountain Valley Sports Park sustained significant fire damage. Since that time, City staff has been corresponding and negotiating with the insurance company (McLarens) to confirm the reimbursement amount for the repairs and other associated costs. A value for the repairs has been established, reimbursement of rental expenses for portable restroom facilities is still being negotiated.

To minimize delay in restoring the restroom for public use, City staff recommends the City Council approve the Horizons Construction Company Int’l Inc. (Horizons) ezIQC construction contract for repairs to the fire damaged portions of the Fountain Valley Sports Park restroom in the amount of $151,359.16 and approve the accompanying financial actions.

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Fountain Valley Sports Park Restroom Repairs
February 20, 2024

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DISCUSSION:

On July 6, 2023, a city-owned restroom, located in the Fountain Valley Sports Park, sustained significant fire damage that has since left it inoperable. The City contacted McLarens, its insurance provider, to file a claim to address the needed repairs. McLarens responded with a request that the City provide a formal scope and cost estimate for the repairs before they could proceed with reimbursement for the damages incurred. The Public Works Department attempted but was unable to obtain quotes from contractors to repair the restroom. This was because all the contractors contacted had little interest in spending staff time to prepare a quote, which had no guarantee that the work would be awarded to them. Public Works informed McLarens of their inability to obtain contractor cost estimates. McLarens then recommended that the City work with ATI Restoration (ATI) to define the scope of work and obtain a cost estimate for the needed repairs. ATI is a disaster recovery services firm that specializes in restoration, environmental and reconstruction services. ATI determined that the cost to repair the Fountain Valley Sports Park restroom would total $153,026.95. The cost estimate was submitted to McLarens. The insurance provider utilized ATI’s documentation to establish the reimbursement amount for the fire damage. The reimbursement to the City will be in the amount of $128,026.95, after the $25,000 insurance deductible is applied. City staff remains in negotiations with McLarens over reimbursement of rental fees for portable restroom facilities.

Since McLarens is not hiring ATI directly, the contract award process is governed by the California Public Contract Code (PCC). The standard approach by the City for a project like this is to prepare a set of construction plans; publicly advertise the project for bids once the plans are completed; then award the project to the lowest bidder. This traditional procurement method can be a lengthy process, which will likely extend the time that the restroom is out of service and negatively impact the Sports Park user groups and other park visitors. Therefore, City staff is recommending an alternative approach to complete this project through an innovative method that’s intended to reduce the overall construction time yet satisfy and adhere to the City’s adopted purchasing policies.

Staff are proposing to utilize Sourcewell, a public agency with legal authority to serve as a contracting agency for other public agencies to complete construction. Joint Powers Agency Government Code §6500 authorizes public agencies, such as City of Fountain Valley, to participate through purchasing agreements like those established by Sourcewell. Since the City of Fountian Valley is a Sourcewell member, it can utilize and benefit from their streamlined national and regional cooperative purchasing networks to bring speed and efficiency to the construction procurement process.

The specific Sourcewell construction procurement process that is being proposed is ezIQC.

This process may also be referred to as Indefinite Delivery-Indefinite Quantity (IDIQ), Job Order Contracting (JOC), Indefinite Quantity Construction (IQC), or Indefinite Delivery Construction Contracts (IDCC). ezIQC can save the City a significant amount of time. It streamlines the procedure for traditional construction procurement projects by providing local, competitively bid prices upfront. This eliminates the need for staff to bid each small-scale project, which on average could take at least six to eight months from preparation of plans and specifications to project completion. The ezIQC solution provides a list of highly qualified specialty contractors from which City staff can select to complete projects. The process is

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Fountain Valley Sports Park Restroom Repairs
February 20, 2024

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based on a catalog of pre-priced tasks for all types of construction, from repairs to renovations and even new construction. Based upon ezIQC’s approved list of contractors with building project expertise, City staff recommends Horizons Construction Company Int’l Inc. to complete the restroom repairs.

The Fountain Valley Sports Park Restroom Repairs includes, but is not limited to:
• Replace all damaged wood beams, sheathing, shiplap, and soffit; surface prep, prime, and repaint all wood.
• Paint the interior of the restroom entirely.
• Repair concrete masonry unit (CMU) wall by removing existing doweling into existing concrete footing or slab and doweling into adjacent CMU wall. • Grind existing concrete to slope for floor drainage.
• Place concrete underlayment and place epoxy flooring. • Close any opening at the bottom of the external wall and other locations as needed. • Remove and replace damaged toilet partitions.
• Install new toilet partitions and toilet accessories. • Demolish, remove, and replace main door in women’s restroom. • Remove existing light fixtures and install new light fixtures. • Remove and replace the existing water heater.
• Remove, repair, and replace damaged metal roofing as needed at the restroom building. • Remove, repair, and replace damaged sheet metal trim along the building. • Clean up and haul away demolished roofing debris.
• Includes manufacturer's warranty and a 1-year contractor warranty.

FISCAL REVIEW:

The revised FY 2023-24 budget for proposed Project No. 24045 is not currently sufficient, offsetting appropriations are needed to fund this Project. The Public Works Department requests an increase of $128,027 to the Government Building Fund’s Recovery of Expense revenue account to record receipt of the insurance reimbursement. In addition, an offsetting budget increase of $128,027 is needed in the Government Building Maintenance & Repair expense account to cover the construction contract. The resulting net impact to the City is $25,000, which is attributed to the insurance deductible.

FY 2023-2024 Funding Sources for Fountain Valley Sports Park Restroom Repairs McLarens Insurance Reimbursement for Restroom
Damages
$128,026.95
Building M & R (as Amended at Mid-Year, 1/16/2024) $35,000.00 Total $163,026.95
Cost of Fountain Valley Sports Park Restroom Repairs
Horizons Construction Contract $151,359.16
Total $151,359.16

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Fountain Valley Sports Park Restroom Repairs
February 20, 2024

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Sourcewell’s ezIQC Award Process
On November 22, 2021, the Notice of Solicitation for Invitation for Bids (IFB) #CA-123021 was published and Sourcewell opened an IFB on behalf of its participating entities to create Indefinite Delivery-Indefinite Quantity (IDIQ) construction contracts that may be used by those participating entities for projects related to construction or the repair, alteration, modernization, or renovation of buildings, structures, or other real property. On December 30, 2021, the IFB was due. Under the IFB, bidders submitted their bids electronically through the Sourcewell Procurement Portal and presented price adjustments (i.e. adjustment factors) that were applied to the Construction Task Catalog unit prices. The adjustment factors are either an increase to the present unit prices (i.e. 1.1000) or a decrease from the preset unit prices (i.e.

0.9800). Awarded contractors of the IDIQ construction contracts must pay an administrative fee in exchange for the administration of the contracts by Sourcewell and Sourcewell’s contract administrator, Gordian. The bidder must include the administrative fee in calculating the contractor’s adjustment factors.

During the bidding process, Sourcewell held a pre-bid conference via webcast on December 8, 2021. Questions regarding the IFB were required to be submitted through the Sourcewell Procurement Portal by December 21, 2021.

In terms of the evaluation of the IDIQ construction contracts, only responsive bids were evaluated. A responsive bid must have been submitted on time and materially satisfy all mandatory requirements identified in the IFB #CA-123021. Sourcewell then awarded each contract to the lowest, responsive, responsible bidders based on the combined adjustment factor as calculated by Sourcewell within each region.

PUBLIC NOTIFICATION:

Not applicable.

ENVIRONMENTAL IMPACT REVIEW:

Not applicable.

ATTORNEY REVIEW:

The City Attorney has reviewed and approved the Construction Contract for Capital Improvements City of Fountain Valley Sourcewell ezIQC Contract Horizons Construction Company Int’l Inc.

ALTERNATIVES:

Alternative No. 1:

1. Accept the Construction Contract for Capital Improvements City of Fountain Valley Sourcewell ezIQC Contract Horizons Construction Company Int’l Inc. for the Fountain Valley Sports Park Restroom Repairs in the not-to-exceed amount of $151,359.16.

2. Approve the offsetting Budget Amendments of $128,027 to revenue and expense.

Alternative No. 2:

1. Do not accept the Construction Contract for Capital Improvement City of Fountain Valley Sourcewell ezIQC Contract Horizons Construction Company Int’l Inc. for the Fountain

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Fountain Valley Sports Park Restroom Repairs
February 20, 2024

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Valley Sports Park Restroom Repairs and proceed with the traditional plan, bid, build process.

2. Do not approve the offsetting Budget Amendments of $128,027 to revenue and expense.

This is not the recommended alternative as this would delay the much-needed Fountain Valley Sports Park restroom repairs. Moreover, selecting this alternative would necessitate the City to separately bid the Fountain Valley Sports Park restroom repairs project, which would substantially increase the time it takes before critical restroom repairs are initiated and completed.

RECOMMENDATION:

Staff recommends that the City Council:

2. Approve the offsetting Budget Amendments of $128,027 to revenue and expense, as authorized by the Finance Department.

Co-Prepared by: Ryan Damon, Assistant Engineer &
Terri Phan, Management Aide
Reviewed by: Temo Galvez, P.E., Deputy Public Works Director/City Engineer Approved by: Scott Smith, P.E., Director of Public Works Fiscal Review by: Ryan Smith, Finance Director / City Treasurer Approved by: Maggie Le, City Manager
Attachment 1: Construction Contract for Capital Improvements City of Fountain Valley Sourcewell ezIQC Contract Horizons Construction Company Int’l Inc.

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1 CONSTRUCTION CONTRACT FOR CAPITAL IMPROVEMENTS

CITY OF FOUNTAIN VALLEY SOURCEWELL EZIQC CONTRACT
HORIZONS CONSTRUCTION COMPANY INT’L INC.

This Contract made and entered into this 20th day, of February, 2024, by and between the CITY OF FOUNTAIN VALLEY, a municipal corporation of the State of California, hereinafter referred to as “CITY” and Horizons Construction Company Int’l Inc., hereinafter referred to as “CONTRACTOR.”
W I T N E S S E T H:

That the CITY and the CONTRACTOR, for the consideration hereinafter named, mutually agree as follows:

A. The complete Contract includes all of the Contract Documents, which are incorporated herein by this reference, to wit:

1. Construction Contract for Capital Improvements
City of Fountain Valley Sourcewell EZIQC Contract
Horizons Construction Company Int'l Inc.

2. Sourcewell Contract number CA-R8-GB01-123021-HCC

3. Sourcewell Addenda

4. EZIQC Work Order & Detailed Scope Documents

5. Sourcewell Invitation for Bids (IFB)
The Contract Documents are complementary, and that which is required by one shall be as binding as if required by all.

B. Term: This Contract shall continue through January 31, 2025.

C. CONTRACTOR shall provide and furnish all labor, materials, necessary tools, expendable equipment, and all utility and transportation services required for the following work of improvement as specified in the EZIQC Work Order.

D. CONTRACTOR agrees to perform all the said work and furnish all the said materials at his own cost and expense that are necessary to construct and complete in strict conformance with Contract Documents and to the satisfaction of the City Representative.

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2 E. CITY agrees to pay and CONTRACTOR agrees to accept in full payment for performance of this work for improvement as described in the EZIQC Work Order.

The total compensation for the Scope of Services set forth herein shall not exceed $151,359.16, including all amounts payable to Contractor for its overhead, payroll, profit, and all costs of whatever nature, including without limitation all costs for subcontracts, materials, equipment, supplies, and costs arising from or due to termination of this Agreement. Dependent upon the amount of work required, the City may authorize work up to the budgeted amount, which will be adjusted annually as funding becomes available. CITY agrees to make progress payments and final payments in accordance with the method set forth in the General Conditions.

F. CONTRACTOR agrees to commence construction of the work provided for herein within thirty (30) Calendar Days after the date specified in the Notice to Proceed, and to continue diligently in strict conformance with Contract Documents and without interruption, and to complete the construction thereof within time set forth in the EZIQC Work Order.

G. Time is of the essence of this Contract, and it is agreed that it would be impracticable or extremely difficult to ascertain the extent of actual loss or damage(s) which the CITY will sustain by reason of any delay in the performance of this Contract. It is, therefore, agreed that CONTRACTOR will pay as liquidated damages to the CITY four hundred dollars & 00/100 ($400.00) per day. If liquidated damages are not paid, as assessed by the CITY, the CITY may deduct the amount thereof from any money due or that may become due the CONTRACTOR under this Contract in addition to any other remedy available to CITY. By executing this Contract, Contractor agrees that the amount of liquidated damages is reasonable and shall not constitute a penalty.

H. In accordance with State of California Senate Bill No. 854, CONTRACTOR will maintain and will require all subcontractors to maintain valid and current Department of Industrial Relations (DIR) Public Works Contractor registration during the term of this project. CONTRACTOR shall notify the CITY in writing immediately, and in no case more than twenty-four (24) hours, after receiving any information that CONTRACTOR’S or any of its SUBCONTRACTOR’S DIR registration status has been suspended, revoked, expired, or otherwise changed.

I. CONTRACTOR will pay, and will require subcontractors to pay, all employees on said Contract a salary or wage at least equal to the prevailing salary or wage established for such work as set forth in the wage determinations and wage standards applicable to this work, a copy of which is on file in the office of the City Clerk of the City of Fountain Valley. Federal prevailing wage rates apply for federally funded projects. Travel and subsistence pay shall be paid in accordance with Labor Code § 1773.1.

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3 J. CONTRACTOR shall be subject to the penalties in accordance with Labor Code of §1775 for each worker paid (either by him or by any subcontractors under him) less than the prevailing rate described above on the work provided for in this Contract.

K. CONTRACTOR and subcontractors shall comply with Labor Code §1810 and §1811 which stipulates that eight hours labor constitutes a legal day’s work, and §1812 which stipulates that the CONTRACTOR and subcontractors shall keep an accurate record showing the name of and actual hours worked each calendar day and each calendar week, by each worker employed by him in connection with the work performed under the terms of the Contract. Failure to comply with these sections of the Labor Code will subject the CONTRACTOR to penalty and forfeiture provisions of the Labor Code §1813.

L. CONTRACTOR will comply with the provisions of Labor Code §1777.5 pertaining to the employment of apprentices to the extent applicable to this Contract.

M. CONTRACTOR, by executing this Contract, hereby certifies:
“I am aware of, and will comply with the Labor Code § 3700 by securing payment for, and maintaining in full force and effect for the duration of the contract, complete Workers’ Compensation Insurance, and shall furnish a Certificate of Insurance to the City before execution of the Contract. The CITY, its officers, or employees, will not be responsible for any claims in law or equity occasioned by failure of the CONTRACTOR to comply with this paragraph.”
CONTRACTOR further agrees to require all subcontractor to carry Workers’ Compensation Insurance as required by the Labor Code of the State of California.

N. CONTRACTOR shall, concurrent with the execution of this Contract, furnish two bonds approved by the CITY, one in the amount of One Hundred Percent (100%) of the Contract Price, to guarantee the faithful performance of the work “Performance Bond”, and one in the amount of One Hundred Percent (100%) of the Contract Price to guarantee payment of all claims for labor and material furnished “Payment Bond”. This Contract shall not become effective until such bonds are supplied to and approved by the CITY.

O. CONTRACTOR shall, prior to commencing work, furnish certificates evidencing compliance with all requirements of the Contract Documents pertaining to insurance.

P. Any amendments to any of the Contract Documents must be in writing executed by the CONTRACTOR and the CITY. Any time an approval, time extension, or consent of the CITY is required under the Contract Documents, such approval, extension, or consent must be in writing in order to be effective.

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4 Q. This Contract contains all of the agreements and understandings of the parties and all previous understandings, negotiations, and contracts are integrated into and superseded by this Contract.

R. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Contract shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Contract which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder.

S. The persons executing this Contract on behalf of the parties hereto warrant they are duly authorized to execute this Contract on behalf of said parties and that, by so executing this Contract, the parties hereto are formally bound to the provisions of this Contract.

T. This Contract shall be binding upon and shall insure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns.

U. In performing its obligations and duties under this Contract, each party shall comply with all applicable local, state, and federal laws, regulations, rules, standards and ordinances.

V. In the event any action is brought between the parties hereto relating to this Contract or the breach thereof, the parties shall each pay their own attorneys fees.

W. This Contract may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.

X. This Contract is to be governed by the laws of the State of California.

Contractor Information
Address for Notices and Payments:
432 W. Meats Ave.

Orange, CA 92865
Attn: Kinan Kotrash
Telephone: 714-728-4276
Email: kinan@[email protected]

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5 (Signatures on following page)

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6 IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first set forth above.

CITY OF FOUNTAIN VALLEY CONTRACTOR
By: By:

Scott Smith Kinan Kotrash
Its: Director of Public Works Its: Vice President
By: By:

Maggie Le
Its: City Manager Its:

Attest:

By:

Rick Miller
Its: City Clerk
APPROVED AS TO FORM:

HARPER & BURNS, LLP
By:

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7 DEFINITIONS
The terms used in the General Conditions and within the Contract Documents have the following meanings assigned to them applicable in both the singular and plural tense.

Certain terms are fully capitalized for no other reason than ease of reading.

Acceptance of a Work Order. Acceptance is when the City determines all the requirements of an individual Work Order have been completed. Execution of the Notice of Completion will signify Acceptance. A copy of the Notice of Completion will be sent to the Contractor after execution by the City. Upon receipt of the Notice of Completion, the Contractor will be relieved of the duty of protecting the work, and the City will initiate a Final Closeout Agreement for final settlement and payment.

Addendum. “Addendum” means written or graphic information (including, without limitation, Drawings or Specifications) issued prior to the Sourcewell Bid Closing Deadline, which modifies or interprets the Bidding Documents by additions, deletions, clarifications or corrections.

Adjustment Factor. The Contractor's competitively bid price adjustment to the unit prices as published in the Construction Task Catalog associated with the applicable Sourcewell bid process. All adjustment factors are expressed as an increase or decrease from the published prices
Admitted Surety. “Admitted Surety” means a surety insurer that is duly certified pursuant to California Insurance Code §995.120 to transact business as a surety in the State of California.

Agency/Board/City – The City of Fountain Valley, a municipal corporation.

Agency Representative – The person or engineering/architectural firm Agency authorizes to represent it during the performance of the Work by the Contractor and until Final Acceptance. The Agency Representative means the Agency Representative or his assistants.

Amendment. “Amendment” means a document, other than a Change Order or Construction Change Directive, approved and signed by the City and Contractor after execution of the Construction Contract, agreeing to alter, amend or modify the Contract Documents.

Applicable Laws. “Applicable Laws” means all statutes, ordinances, rules, regulations, policies and guidelines enacted by Governmental Authorities (including, without limitation, Environmental Laws and Disability Laws), codes adopted or promulgated by Governmental Authorities (including, without limitation, building and health and safety codes), lawful orders of Governmental Authorities and common law, including, but not limited to, principles of equity applied by the courts of the State of California, which are in effect at the time the Work is performed.

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8 Application for Payment. “Application for Payment” means Contractor’s itemized application for Progress Payment or Final Payment prepared, submitted and substantiated in accordance with the requirements of the Contract Documents.

Architect. “Architect” means the design professional retained by City that is primarily responsible for the preparation of the Drawings and Specifications for the Project.

As-Builts. “As-Builts” means the collection of documents assembled and prepared by Contractor (including, without limitation, the As-Built Drawings and Specifications) showing the condition of the Work as actually built.

As-Built Drawings, Record Specifications. “As-Built Drawings” and “Record Specifications” mean the Drawings and Specifications marked by Contractor to show the condition, location and placement of the Work as actually built, including, without limitation, the locations of mechanical, electrical, plumbing or similar portions of the Work that are depicted diagrammatically in the Drawings.

Bid. “Bid” means the completed and signed Bid Form and other Bid Submittals submitted by a Bidder to Sourcewell in response to the Invitation for Bids (IFB) and in accordance with the Sourcewell Instructions to Bidders
Bid Amount. “Bid Amount” means the dollar amount of the Adjustment Factor that is used as the basis for determining which Bidder has submitted the lowest Bid price for purposes of Award pursuant to the Sourcewell’s chosen method of Award set forth in the Sourcewell Contract Documents and Instructions to Bidders.

Bidding Documents. “Bidding Documents” means the following collection of documents prepared and issued by Sourcewell relating to the Sourcewell Contract:

1. Sourcewell Invitation for Bid Documents (IFB);

2. Sourcewell Project Information;

3. Sourcewell Instructions to Bidders;

4. Sourcewell Execution Documents;

5. Sourcewell IQCC Standard Terms and Conditions and Contract General Conditions;

6. Specifications;

7. Indefinite Quantity Construction Task Catalog, Region 8 (General Construction (B) – November 2021);

8. Addenda;

9. Reference Documents;

10. Safety Program; and

11. Those documents, or those portions or provisions of documents, that, although not listed above, are expressly cross-referenced therein or attached thereto, including, without limitation, all documents submitted by Contractor as part of its Sourcewell Bid, Post-Award Submittals, or subsequently awarded Sourcewell IQC Construction Contracts between the City and the Contractor
Calendar Day – The 24-hour day denoted on the calendar.

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9 Calendar Month – The period including the first through the last day of a month.

Change. “Change” means a modification, change, addition, substitution or deletion in the Work or in Contractor’s means, methods, manner, time or sequence of performing the Work arising from any cause or circumstances, including, without limitation, either directly at the request of City or constructively by reason of other circumstances. Use of the term “Change,” in any context, in the Contract Documents shall not be interpreted as implying that Contractor is entitled to a Contract Adjustment on any basis other than as permitted by the terms of the Contract Documents for Compensable Change, Deleted Work or Compensable Delay. Change Order.
“Change Order” means a written instrument, signed in accordance with the requirements of the General Conditions of the Standard Form Sourcewell IQC-Work Order Contract (EZIQC) Between City and Contractor.

Change Order Request. “Change Order Request” means Contractor’s written request for a Contract Adjustment.

City – See Agency.

City Amount. “City Amount” means the component amount calculated on behalf of the City, that is used to determine the total net amount payable to Contractor or the City in the event of a partial or full termination or discontinuance of the Work.

City Consultant. “City Consultant” means a consultant, other than Architect, engaged by the City (or engaged as a subconsultant to the Architect or a City Consultant) to provide professional advice to the City with respect to the design, construction or management of the Project.

City Representative - One person under the employment of the City of Fountain Valley assigned to represent the City, give direction to Contractor and is authorized to issue Field Change Orders.

City Review Date. “City Review Date” means an end date set forth in the Construction Schedule or Submittal Schedule within which the City, Architect or a City Consultant is to provide information, review documents or render decisions, approvals or disapprovals.

City Review Period. “City Review Period” means a period of time set forth in the Construction Schedule or Submittal Schedule within which the City, Architect or a City Consultant is to provide information, review documents or render decisions, approvals or disapprovals
Clarification – Verbal or written interpretation of Contract documents by the Agency Representative to clarify intent, procedures, materials or processes with no change in contract sum or time.

Close-Out Documents. “Close-Out Documents” means all Record Documents, warranties, guarantees, technical information, operations manuals, replacement parts, excess and attic stock and other documents (including, without limitation, electronic versions and hard copies) and things required to be submitted by Contractor under the

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10 Contract Documents as a condition of Final Completion or Final Payment.

Compensable Change. “Compensable Change” means circumstances involving the performance of Extra Work:
that are the result of:
(1) Differing Site Conditions;
(2) amendments or additions to Applicable Laws, which amendments or additions are enacted after the Bid Closing Deadline;
(3) a Change requested by City in accordance with the conditions of authorization applicable to Compensable Changes set forth in Article 2, below; or
(4) other circumstances involving a Change in the Work for which Contractor is given under the Contract Documents a specific and express right to a Contract Adjustment to the Contract Price;
that are not caused, in whole or in part, by an act or omission of Contractor or a Subcontractor, of any Tier, constituting negligence, willful misconduct, or violation of an Applicable Law, or by a failure of Contractor of a Subcontractor, of any Tier, to comply with the Contract Documents;
for which a Contract Adjustment is neither prohibited by nor waived under the terms of the Contract Documents; and
that if performed would require Contractor to incur additional and unforeseeable Allowable Costs that would not have been required to be incurred in the absence of such circumstances.

Compensable Delay. “Compensable Delay” means a Delay to the critical path of activities affecting Contractor’s ability to achieve Substantial Completion of the entirety of the Work within the Contract Time:
that is the result of:
(1) a Compensable Change;
(2) the active negligence of the City, Architect, a City Consultant or a Separate Contractor;
(3) a breach by City of an obligation under the Contract Documents; or (4) other circumstances involving Delay for which Contractor is given under the Contract Documents a specific and express right to a Contract Adjustment adjusting the Contract Price;
that is not caused, in whole or in part, by an act or omission of Contractor or a Subcontractor;
of any Tier, constituting negligence, willful misconduct, or a violation of an Applicable Law, or a failure by Contractor or any Subcontractor, of any Tier, to comply with the Contract Documents; and
for which a Contract Adjustment to the Contract Time is neither prohibited by nor waived under the terms of the Contract Documents.

Construction Change Directive. “Construction Change Directive” means a written instrument signed in accordance with the requirements of Article 2, below, that: (1) directs the performance of a Change that does not involve a Contract Adjustment; (2) establishes a mutually agreed basis for compensation to Contractor for a Compensable Change under circumstances where performance of the Compensable Change needs to proceed in advance of the City performing a full evaluation of the Contractor’s rights relative to a

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11 Contract Adjustment; or (3) directs performance of Work or a Change with respect to which there exists a dispute or question regarding the terms of a Contract Adjustment.

Construction Task Catalog (“CTC”) – This is a comprehensive listing of specific repair, remodeling or construction tasks together with a specific unit of measurement and a published Unit Price.

Contract – see Sourcewell/ezIQC Contract
Contract Amendment - A written order to the Contractor and signed by the agency authorizing an increase or decrease in the contract scope, value and/or time after the effective date of the contract.

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12 Contract Price. “Contract Price” means the dollar amount set forth in the EZIQC Contract as the total compensation payable by the City of Fountain Valley to Contractor for complete performance by Contractor in accordance with the Contract Documents of the Work and other obligations assumed by Contractor under the Contract Documents Contractor’s Representative - Personnel working for Contractor who are authorized to sign and accept Field Change Orders. While work is in progress, there shall be an Englishspeaking foreman on site who has the authority to sign Field Change Orders.

Contract Time. “Contract Time” means the total number of Days set forth in the EZIQC Contract within which Contractor is obligated to achieve Substantial Completion and/or Final Completion of the Work, as extended or shortened by Contract Adjustments.

Contractor. “Contractor” means the person or entity identified by the City as the Sourcewell Bidder receiving Award of a Sourcewell Indefinite Quantity Construction Agreement.

Contractor Amount. “Contractor Amount” means the component amount calculated on behalf of Contractor, that is used to determine the total net amount payable to Contractor or the City in the event of a partial or full termination or discontinuance of the Work Contractor’s Own Expense. “Contractor’s Own Expense” means that Contractor agrees to assume sole responsibility to pay and be responsible for any resulting or associated Loss and Delay, without any Contract Adjustment and without any other form of compensation or reimbursement, of any kind, by the City.

Date of Commencement. “Date of Commencement” means the starting date used for calculation of the Contract Time, and is the date, no earlier than the first working day following issuance of the first Work Order Notice to Proceed, issued by the City.

Day. “Day”, whether capitalized or not, and unless otherwise specifically provided, means calendar day, including weekends and holidays.

Defective Work. “Defective Work” means materials, equipment, labor, workmanship, construction services or other construction work comprising the Work by Contractor or a Subcontractor that (1) is faulty, omitted, incomplete, or deficient, or (2) does not conform to Applicable Laws, the Contract Documents, and/or the requirements of any inspection, reference standard, test, code or approval specified in the Contract Documents.

Delay. “Delay” means any circumstances involving delay, disruption, hindrance or interference.

Deleted Work. “Deleted Work” means Work that is eliminated or its scope or cost reduced pursuant to a Change Order or Unilateral Change Order.

Department of Industrial Relations. “Department of Industrial Relations” means The Department of Industrial Relations of the State of California.

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13 Design Documents. “Design Documents” means all originals, copies and drafts of plans, drawings, tracings, specifications, programs, reports, calculations, presentation materials, models, building information models and other writings or materials containing designs, specifications or engineering information related to the Work or Project prepared by Architect, City Consultants, Contractor, Separate Contractors or Subcontractors including, without limitation, computer aided design materials, electronic data files and paper copies. The term “Design Documents” includes both the written documents and all building and other designs depicted therein.

Design Intent. “Design Intent” means the general intended design objectives of the Design Documents prepared by Architect and City Consultants.

Detailed Scope of Work - The Scope of Work for this Contract is determined by individual Work Orders issued under the Contract. The Detailed Scope of Work is the complete description of services to be provided by Contractor for an individual Work Order. The Scope of Work will include all Work Order specific documentation for a given project.

Documentation may include a narrative description of the work.

Differing Site Condition. “Differing Site Condition” means an unforeseen condition that constitutes a basis for Contract Adjustment.

Disability Laws. “Disability Laws” means applicable federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any Government Authority, which regulate, relate to or impose liability or standards of conduct with respect to, or accessibility for, persons with disabilities, including, without limitation, the Americans with Disabilities Act (42 USCA §§ 12101 et seq.) and the Fair Housing Amendments Act of 1988 (42 USCA §§ 3604 et seq.).

Discovery Date. “Discovery Date”, is generally used in reference to Contractor’s obligation to give written notice of certain facts, conditions or circumstances, means the earlier of the dates that Contractor or any Subcontractor either: (1) discovered such facts, conditions or circumstances; or (2) should have discovered such facts, conditions or circumstances in the exercise of the level of care required by the terms of the Standards of Performance.

Drawings. “Drawings” means graphic and pictorial documents showing the design, location and dimensions of the Project, and generally includes plans, elevations, subparagraphs, details, schedules and diagrams. The term, “Drawings,” is used interchangeably with "Plans”.

Excusable Delay. “Excusable Delay” means a Delay, other than a Compensable Delay, to Contractor’s ability to achieve Substantial Completion or Final Completion of the Work within the Contract Time that is: (1) not caused, in whole or in part, by an act or omission of Contractor or a Subcontractor, of any Tier, constituting negligence, willful misconduct, a violation of an Applicable Law or a failure by Contractor or any Subcontractor, of any

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14 Tier, to comply with the Contract Documents; (2) unforeseeable, unavoidable and beyond the control of Contractor and the Subcontractors, of every Tier; and (3) the result of a Force Majeure Event. Without limitation to the foregoing, neither the bankruptcy, insolvency nor financial inability of Contractor or a Subcontractor, of any Tier, nor any failure by a Subcontractor, of any Tier, to perform any obligation imposed by contract or Applicable Laws shall constitute a ground for Excusable Delay.

Existing Improvements. “Existing Improvements” means all improvements located on the Site as of the acceptance date of the Detailed Scope of Work, whether above or below the surface of the ground, including, but not limited to, existing buildings, utilities, infrastructure improvements and other facilities.

Extra Work. “Extra Work” means labor, materials, equipment, services or other work, not reasonably inferable by Contractor or its Subcontractors from the design and other information set forth in the Bidding Documents, the performance of which requires the expenditure by Contractor of additional and unforeseen Allowable Costs. References to Extra Work shall not be interpreted to mean or imply that Contractor is entitled to a Contract Adjustment unless such Extra Work constitutes a Compensable Change.

Field Change Order. “Field Change Order” means a written order issued by the City authorizing the Contractor to perform work in accordance with a change or changes to the Detailed Scope of Work of an individual Work Order. A Supplemental Work Order prior to the Contractor invoicing for services rendered must supersede a Field Change Order.

Final Closeout Agreement and Release of All Claims. “Final Closeout Agreement and Release of All Claims” means the written agreement between the City and Contractor confirming the date of project Final Completion and to settle all issues relating to job performance, compensation, and/or liquidated damages.

Final Completion, Finally Complete. “Final Completion” and “Finally Complete” mean the point at which the following conditions have occurred with respect to an individual Work Order:
(1) the Work is fully completed, including all minor corrective, or "punch list," items;
(2) all permits, approvals and certificates by Governmental Authorities, such as, but not necessarily limited to, a permanent or temporary certificate of occupancy required to occupy and use the Work have been issued free of any conditions that are the result of an act or omission of Contractor or a Subcontractor, of any Tier, constituting negligence, willful misconduct, a violation of an Applicable Law or a failure by Contractor or any Subcontractor, of any Tier, to comply with the Contract Documents; (3) the Work and the related portions of the Site have been thoroughly cleared of all construction debris and cleaned in accordance with the requirements of the Contract Documents, including, but not necessarily limited to where applicable, the following: removal of temporary protections; removal of marks, stains, fingerprints and other soil and dirt from painted, decorated and natural-finished woodwork and other Work; removal of spots, plaster, soil and paint from ceramic tile, marble and other finished materials; all surfaces, fixtures, cabinet work and equipment are wiped and washed clean and in an undamaged, new condition; all aluminum and other metal

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15 surfaces are cleaned in accordance with recommendations of the manufacturer; and all stone, tile and resilient floors are cleaned thoroughly in accordance with the manufacturer’s recommendations and buff dried by machine to bring the surfaces to sheen;
(4) all conditions set forth in the Contract Documents for Substantial Completion of the Work have been, and continue to be, fully satisfied; (5) all conditions pertaining to the Work and required for the release of the City’s obligations (including, but not limited to, release of City’s bond obligations) to Governmental Authorities (including, but not limited to, matters involving grading, flood control, public works, transportation and traffic) have been satisfied; and
(6) Contractor has delivered to the City all Close-Out Documents.

Final Completion Punch List. “Final Completion Punch List” means the list of minor items of Work to be completed, or that is to be corrected by Contractor for Final Completion.

Final Payment. “Final Payment” means payment by the City to Contractor of the entire unpaid balance of the Work Order Price due to Contractor following Final Completion, less the amount retained per the contract.

General Conditions. “General Conditions” means the herein set-forth general terms and conditions governing performance of the Work.

General Requirements. “General Requirements” means the portion of the Specifications so titled setting forth additional requirements for administration of the Work.

Good Faith Determination. “Good Faith Determination” means a determination made by the City Representative or other authorized representative of the City, which he/she believes in good faith to be a proper exercise of City’s rights and to have a reasonable basis in fact, whether or not such determination is in fact proper, reasonable or correct or adjudged to be so.

Governmental Authority. “Governmental Authority” means the United States, the State of California, the City of Fountain Valley, in which the project is located, any other local, regional, state or federal political subdivision, authority, agency, department, commission, board, bureau, court, judicial or quasi-judicial body, and any legislative or quasi-legislative body, or instrumentality of any of them, which exercises jurisdiction over the Project, Work, Site, Contractor or the City, including, without limitation, any Governmental Authority having jurisdiction to review and approve or reject the Contract Documents or the Work based on compliance or non-compliance with Applicable Laws.

Governmental Authority Review Period. “Governmental Authority Review Period” means a period of time set forth in the Construction Schedule or Submittal Schedule for Governmental Authority review, and/or approval, of the Work.

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16 Guarantee To Repair Period. “Guarantee To Repair Period” means the period of time set for repair or replacement of defective work.

Hazardous Substance. “Hazardous Substance” means either of the following: (1) any chemical, material or other substance defined as or included within the definition of "hazardous substances," "hazardous wastes," "extremely hazardous substances," "toxic substances," "toxic material," "restricted hazardous waste," "special waste," “contamination” or words of similar import under any Environmental Law, including, without limitation, the following: petroleum (including crude oil or any fraction thereof), asbestos, asbestos-containing materials, polychlorinated biphenyls ("PCBs") and PCBcontaining materials, whether or not occurring naturally; or (2) any substance that because of its quantity, concentration or physical or chemical characteristics poses a significant present or potential hazard to human health and safety or to the environment, and which has been determined by any Governmental Authority to be a hazardous waste or hazardous substance.

Holiday. “Holiday” means a day recognized by the City as being a legal holiday.

Inspector of Record. “Inspector of Record” means a person designated by the City to perform inspections on behalf of the City, who may be an employee or an independent consultant to the City.

Installation Subcontractor. “Installation Subcontractor” means a Subcontractor who performs a portion of the Work that includes providing substantial, rather than minor and incidental, services for the installation of temporary or permanent materials, equipment or facilities at the Site.

Joint Scope Meeting. “Joint Scope Meeting” means a meeting during which Contractor and City jointly review a preliminary Work Order scope of work and, together, modify and clarify the scope of work document to contain all Work elements until it is mutually acceptable to all parties.

Work Order. Means a firm, fixed priced, lump sum order issued by the City under the EZIQC Contract to a Contractor with an approved Sourcewell Indefinite Quantity Construction Agreement. The Work Order will set forth a definite project scope of work as compiled from the Construction Task Catalog to-be-performed pursuant to the EZIQC Contract. A Work Order, minimally, consists of plans, shop drawings, permits, specifications and the Scope of Work required to complete the Work. The City, in cooperation with the Gordian Group, will be responsible for the development of the Work Order as well as the observation and acceptance of the Work contained within the Work Order. The City will review the Contractor’s Proposal and if acceptable, shall sign the Work Order and issue a Notice to Proceed for the work described therein. Each Work Order will include a detailed Scope of Work, a firm fixed price proposal from the Contractor, amount of liquidated damages (which will be assessed per project), a time duration for the completion of the Work, subcontractor’s DIR number, and any special conditions that might apply to that specific Work Order. There is

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17 no minimum value associated with an individualWork Order. A project may consist of one or more Work Orders.

Work Order Amount. The dollar amount stated in the Work Order payable by the City to Contractor. The Work Order Amount is a firm-fixed price and may not be increased or decreased. Work may be added to or deleted from a project utilizing an additive or deductive Supplemental Work Order as back up to an authorized City Change Order.

Work Order Proposal. Also sometimes referred to in the Contract Documents as a “Proposal,” is the Contractor’s irrevocable offer to perform all Work associated with a Work Order. It refers to the Contractor’s prepared document quoting a firm fixed-price and schedule for the completion of a specific Scope of Work. The Contractor’s Proposal must be on forms provided by the City and in an electronic version compatible with the City’s systems, including but not limited to, e-Gordian. The Proposal may also contain approved drawings, work schedule, permits, or other such documentation as the City might require for a specific Work Order.

Work Order Time. The duration of time, stated in number of days, as set forth in an individual Work Order. Work Order Time is the stated number of days the Contractor has to perform the tasks set forth in the Work Order. Work Order Time can also mean more or less days than the original number of days stated in the Work Order if the Work Order is modified by a Change Order with a Supplemental Work Order as part of the backup documentation
Key Personnel, Key Persons. “Key Personnel” and “Key Persons” mean those individuals employed by Contractor, below, and any replacements thereto approved by the City, whose personal performance is deemed of the essence to the Contract.

Maximum Contract Amount. The maximum potential dollar value of the Sourcewell Indefinite Quantity Construction Agreement.

Minimum Contract Amount. The Contractor is not guaranteed to receive any Work Orders under the Sourcewell Indefinite Quantity Construction Agreement.

Sourcewell Indefinite Quantity Construction Agreement Contract - A competitively bid, fixed period, fixed unit price and indefinite quantity contract between the Sourcewell and the Contractor that provides for the use of Work Orders for public works or maintenance projects. Work is accomplished under the individually awarded EZIQC Contracts until the end of the term or the maximum Contract amount of the City Agreement is reached, whichever comes first. See also the definitions for “Contract” and “Contract Documents” set forth respectively in this Section.

Non-prepriced tasks. As used herein, means those units of work that are not included in the CTC but within the general scope and intent of this Contract, and may be negotiated into this Contract as needs arise. Such work requirements shall be incorporated into and made a part of this Contract for the Work Order to which they pertain, and may be

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18 incorporated into the CTC, if determined appropriate by the City and Sourcewell, at the base price determined in this Work Order. Non-prepriced work requirements shall be separately identified and submitted in the Work Order Proposal.

Notice of Change. “Notice of Change” means a formal written notice required to be submitted by Contractor, below, notifying the City of circumstances that Contractor believes may give rise to a Contract Amendment.

Notice of Completion. “Notice of Completion” means a “notice of completion” as defined in California Civil Code §9204
Notice of Completion of a Work Order. The Notice of Completion ("NOC") shall be issued by the City at that point in the Work Order when the Contractor has completed all Work required in the Work Order. The time for issuance shall be determined by the City through a final inspection and acceptance of the work described in the Work Order. The NOC shall be signed by City’s Public Works Director or his/her designee.

Notice of Delay. “Notice of Delay” means a formal written notice prepared and submitted by Contractor, below, notifying the City of circumstances that Contractor believes may give rise to a Contract Adjustment to the Contract Time for Excusable Delay or Compensable Delay or a Contract Adjustment to the Contract Price for Compensable Delay.

Notice of Substantial Completion. “Notice of Substantial Completion” means the written notice by the City confirming the date of actual Substantial Completion.

Payment Bond, Performance Bond. “Payment Bond” and “Performance Bond” mean the surety bonds required to be provided by Contractor.

Pre-construction Meeting. “Pre-construction meeting” means for each Work Order, a conference used to clarify schedules, contract specifications, coordination with others, expected completion dates, work procedures, working hours, and any potential misunderstandings in order to assure a smooth work flow and contract completion.

Plans. “Plans” means the graphic and pictorial portions of the Contract Documents prepared by Architect or its Subconsultants showing the design, location and dimensions of the Work, including, without limitation, plans, elevations, details, schedules and diagrams. The term "Plans" is used interchangeably with "Drawings.” Post-Award Submittals. “Post-Award Submittals” mean the documents described in the Contract Documents that the Contractor is required to submit after Contract is awarded.

Prepriced Task. “Prepriced Task” means a task described in, and for which a Unit Price is set forth, in the Construction Task Catalog.

Product Data. “Product Data” means illustrations, standard schedules, charts, instructional brochures, diagrams and other information furnished by Contractor to illustrate a material, product or system for the Work.

Progress Payment. “Progress Payment” means a monthly payment of a portion of the Contract Price prior to Final Completion based on Contractor’s progressed performance

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19 of the Work.

Project. “Project” means the improvements comprising, or necessary, or appurtenant to the use of, the work of improvements described generally in the Work Order documents issued for each Work Order under the Contract, including but not limited to, the Detailed Scope of Work and the Notice to Proceed; and of which the Work may be the entirety of such improvements or only a part.

Project Documents. “Project Documents” means all writings (hard copy and electronic) in the possession of Contractor at the Site or elsewhere that relate in any way to the Project or Work.

Project Team. “Project Team” means the City, Architect, City Consultants, Contractor, Subcontractors, Inspectors of Record and other firms or individuals retained by the City, or retained by others with the City’s approval, participating in the planning, programming, design, construction or inspection of the Work.

Request for Time Extension. “Request for Time Extension” means a formal written request submitted by Contractor setting forth the justification and support for Contractor’s request for a Contract Adjustment to the Contract Time.

Request for Information. “Request for Information” means a written request by Contractor for clarification of what it perceives to be a discrepancy in the Contract Documents (including, without limitation, information in the Contract Documents constituting a Design Discrepancy or a variance between the information in the Bidding Documents or Contract Documents and conditions at the Site or in Existing Improvements).

Samples. “Samples” means physical examples that, when approved by the City and Architect, illustrate materials, equipment or workmanship by which the Work is to be evaluated and judged as part of the Submittal process.

Schedule of Values. “Schedule of Values” means a detailed, itemized breakdown of the Contract Price, which provides for an allocation of the dollar values to each of the various parts of the Work.

Self-Performed Work. “Self-Performed Work” means Work related to a Compensable Change or Deleted Work, that is performed or is to be performed by Contractor’s own laborers, who are employed by Contractor, rather than by the employees of a Subcontractor, using materials and equipment purchased by Contractor directly from a supplier or manufacturer.

Shop Drawing. “Shop Drawing” means a drawing, diagram, schedule and other data specially prepared for the Work by Contractor or a Subcontractor to illustrate some portion of the Work.

Site. “Site” means: (1) the parcel of land owned by the City on which the Project is to be constructed, and such additional parcels as may be purchased by the City for such construction; (2) all areas adjacent to such parcels that may be used by Contractor or the Subcontractors for staging, storage, parking or temporary offices; and (3) all land areas,

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20 both private and public, adjacent to such parcels on which Work is required to be performed under the Contract Documents, Applicable Laws or permits relating to the Project.

Specifications. “Specifications” means the portion of the Contract Documents consisting of the written requirements for materials, equipment, standards and workmanship for the Work and performance of related services.

Standard Specifications. “Standard Specifications” means the Standard Specifications for Public Works Construction (Current Edition)
State Water Resources Control Board. “State Water Resources Control Board” means the State Water Resources Control Board of the State of California.

Storm Water Permit. “Storm Water Permit” means any applicable storm water, urban runoff or statewide general National Pollutant Discharge Elimination System (NPDES) permit issued by the State of California or the United States, pursuant to the provisions of the Clean Water Act (Title 33U.S.C.§§1251 et seq.), and/or Porter Cologne Water Quality Control Act (California Water Code §§13000 et seq.), and including any related regulations issued by the State of California or the United States.

Sub-Bidder. “Sub-Bidder” means a person or entity that submits a bid to an EZIQC Contractor for some portion of the Work that is to be performed by that person or entity, acting as a first-Tier Subcontractor.

Subcontractor. “Subcontractor” means a person or entity that has a contract to perform a portion of the Work, including without limitation, subcontractors, sub-subcontractors, suppliers, equipment operators, manufacturers and vendors, of any and every Tier.

Submittal. “Submittal” means a Shop Drawing, Product Data, Sample, detailed design, exemplar, fabrication and installation drawing, list, graph, operating instruction or other document, that is/are required to be submitted by Contractor under the Contract Documents.

Submittal Schedule. “Submittal Schedule” means the schedule prepared by Contractor showing the timing for submission and review of Submittals during construction.

Substantial Completion, Substantially Complete. “Substantial Completion” and “Substantially Complete” mean the point at which the following conditions have occurred with respect to the entire Work or a portion of the Work designated by City in writing to be Substantially Completed prior to Substantial Completion of the entire Work:

1. such Work is sufficiently and entirely complete in accordance with Contract Documents so that such Work can be fully enjoyed and beneficially occupied and utilized by City for its intended purpose (except for minor items which do not impair City's ability to so occupy and use such Work);

2. all permits, approvals and certificates by Governmental Authorities, such as, but not necessarily limited to, a permanent or temporary certificate of occupancy required to occupy and use such Work have been issued free of any

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21 conditions that are the result of an act or omission of Contractor or a Subcontractor, of any Tier, constituting negligence, willful misconduct, a violation of an Applicable Law or a failure by Contractor or any Subcontractor, of any Tier, to comply with the Contract Documents; and

3. all building systems included in such Work are operational as specified, all designated or required inspections and certifications by Governmental Authorities have been made and posted and instruction of City’s personnel in the operation of the systems has been completed.

Substantial Completion Punch List. “Substantial Completion Punch List” means the list of items of Work to be completed or corrected by Contractor for Substantial Completion.

Substitution. “Substitution” means a material, product or item of material or equipment proposed by the Bidder or Contractor in place of that specified in the Bidding Documents or Contract Documents.

Substitution Request Form. “Substitution Request Form” means the form, so titled, that is included in the Bidding Documents for use by the Bidders when requesting a Substitution.

Supplementary Conditions. “Supplementary Conditions” means those portions of the Specifications that supplement, by addition, modification, or deletion, a specific portion of the General Conditions.

Supplemental General Conditions. “Supplemental General Conditions” means the herein set forth supplemental general terms and conditions governing performance of the Work and titled, Supplemental General Conditions of the Standard Form EZIQC-Work Order Contract Between the City and Contractor.

Supplemental Work Order. A stand-alone Work Order issued in the same manner and including all the characteristics described in “Work Order”, above. The purpose and use of a Supplemental Work Order shall be to provide primary back up for any change to the project by adding or deleting work or time to or from the project for which a Work Order has been issued. Such supplemental work shall be reviewed by the City in advance and shall be approved as compensable under the requirements of the EZIQC Contract and a City change order shall be issued as the primary change order mechanism. Completion and acceptance of Work under a Supplemental Work Order shall follow the same requirements as all Work Orders and all the requirements of the EZIQC Contract.

Surety. “Surety” means Contractor’s surety(ties) issuing the Bid Bond, Performance Bond or Payment Bond.

Technical Specifications. The term "Technical Specifications" means that portion of the Contract Documents consisting of the written requirements for materials, equipment, construction systems, standards and workmanship for the Work.

Tier. “Tier” means the contractual level of a Subcontractor with respect to Contractor. For example, a "first-tier" Subcontractor is under contract with Contractor. A subsubcontractor under contract with a first-tier Subcontractor is in the "second tier," and so on. Use of the phrase “of every Tier”, or similar phraseology, in the Contract Documents

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22 shall not be interpreted as implying that other provisions of the Contract Documents, where such phrase is not used, are intended to be limited in application to only the first Tier or to only certain other Tiers of Subcontractors.

Unexcused Delay. “Unexcused Delay” means any Delay that is not a Compensable Delay or Excusable Delay or that constitutes a Compensable Delay or Excusable Delay for which Contractor is not entitled to a Contract Adjustment to the Contract Time, including, without limitation, the following: (1) Delay caused by an act or omission of Contractor or a Subcontractor, of any Tier, constituting negligence, willful misconduct, a violation of an Applicable Law or a failure by Contractor or any Subcontractor, of any Tier, to comply with the Contract Documents; (2) Delay for which Contractor has failed to provide a timely and complete Notice of Delay or Request for Extension; or (3) Delay associated with any circumstances where the costs or risk associated with such circumstances are designated in the Contract Documents as being at Contractor’s risk or Contractor’s Own Expense.

Unilateral Change Order. “Unilateral Change Order” means a writing signed by the City in accordance with Article 2, below, in which the City unilaterally sets forth its Good Faith Determination of the undisputed portion of an otherwise disputed Contract Adjustment.

Unit Price. As used herein refers to the price published in the Construction Task Catalog (CTC) for a specific repair or remodeling task. The unit prices are fixed for the duration of the EZIQC. Each unit price is comprised of the Labor, Equipment and Materials costs to accomplish that specific task.

Work. “Work” means all labor, materials, equipment, services, permits, licenses, taxes and other things necessary for Contractor to perform its obligations under the Contract Documents, including, without limitation, any Changes requested by the City, in accordance with the Contract Documents and all Applicable Laws. The Work may constitute the whole or a part of the Project. The Scope of Work for this EZIQC is determined by individual Work Orders issued under the Contract. The Scope of Work is the complete description of services to be provided by the Contractor under each individual Work Order. The Scope of Work will include documentation for a given Project.

Documentation includes, but is not limited to, a narrative description of the work.

Work Hours. Normal Work Hours – Any eight-hour shift between the hours of 7am to 5pm weekdays; Other Than Normal Work Hours – 5pm to 7 am weekdays, weekends and holidays.

Worker’s Compensation Certificate. “Worker’s Compensation Certificate” means the statement, completed by Contractor in the form included herein, evidencing the Contractor’s compliance with the worker’s compensation insurance requirements of the Contract Documents and Applicable Laws.

Work Order Completion Time. “Work Order Completion Time” means the duration in calendar days from the date Notice to Proceed to Completion of the Detailed Scope of Work as set forth in the Work Order.

Work Order Construction Schedule. “Construction Schedule” means the detailed, critical path schedule prepared by Contractor in accordance with the requirements of the Contract Documents showing Contractor’s plan for performance of the Work within the

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23 Contract Time.

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24 END OF SECTION

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25 GENERAL CONDITIONS
ARTICLE 1 – SCOPE AND CONTROL OF WORK
1-1 CONTRACT AWARD AND EXECUTION - The City will award and execute the Contract as provided in these Specifications.
1-2 ASSIGNMENT - Do not assign the Contract or any portion of it without the City’s written consent, except that Contractor may assign money due or which will accrue to Contractor under the Contract. If given written notice, the City will recognize the assignment to the extent permitted by law. Any assignment of money is subject to all proper withholdings in the City’s favor and to all deductions, the Contract allows. The City will use all money withheld, assigned or not, to complete the Work if Contractor defaults.

Do not assign Contract performance except with the City’s written consent. The City will not consent to any proposed assignment that would relieve Contractor or your Surety of your Contractual responsibilities, or to any assignment of any of the Contract Work. 1-3 SUBCONTRACTS.
1-3.1 General. Comply with Chapter 4 of the Public Contract Code including Sections 4100 through 4113.

A. List the name and location of the place of business of each subcontractor who will perform work or labor or provide service to Contractor in constructing the Work or improvement, or a subcontractor licensed by the State of California who, under subcontract to you, specially fabricates and installs a portion of the Work or improvement according to detailed drawings in the Plans and Specifications, in an amount exceeding one-half of one (1) percent of Contractor’s total bid.

B. The portion of the Work each such subcontractor will do under this act. List only one subcontractor for each portion as defined in your bid.

If you fail to specify a subcontractor or specify more than one subcontractor for the same portion of the Contract Work to be performed in excess of one-half of one (1) percent of your total Bid, you must be qualified to and must perform that portion yourself unless the Code provides otherwise.

Pursuant to § 4107, if your Bid is accepted you may not substitute any person as a subcontractor in place of a subcontractor listed in your Bid except for the causes and by the procedures in § 4107.5, which provide procedures to correct a clerical error in listing a subcontractor.

Section 4110 provides that violating any of the provisions of Chapter 4 violates the Contract and the City may, after a public hearing, either cancel the Contract or assess you a penalty not exceeding ten (10) percent of the subcontract involved.

If you subcontract any part of Contract, you are as fully responsible to the City for the acts and omissions of your subcontractors as you are for the acts and omissions of your

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26 direct employees. Nothing contained in the Contract Documents creates any contractual relationship between any subcontractor and the City. Bind every subcontractor to the terms of the Contract Documents applicable to its work.

Do not employ debarred contractors on the Work pursuant to the provisions of Labor Code § 1777.1. The Labor Commissioner publishes and distributes a list of contractors ineligible to work as a subcontractor on a Public Works project. This list is available from the Department of Industrial Relations web site
http://www.dir.ca.gov/dlse/debar.html.

The U.S. General Services Administration maintains a list of individuals, firms and organizations debarred, suspended or who have voluntarily excluded themselves from Federal Procurement and Non-Procurement Programs, which is available from the website https://sam.gov/content/home.

In accordance with California Senate Bill No. 96 – Amendments to California Prevailing Wage Law, you and each of your subcontractors must maintain a valid, current Department of Industrial Relations Public Works Contractor registration during the term of this project.

Before including a subcontractor’s name on the bid, verify that each one is properly licensed and not debarred from performing the designated work.

The City will withhold payment for noncompliant subcontracted work from progress payments due, or to become due, until the noncompliance is corrected. The City may terminate the Contract if you fail to comply.

If the City Representative finds any subcontractor, or person you employ, is incompetentor is acting improperly, then at the City Representative’s request, dismiss them from the job immediately and do not employ them on the Work again.

File a copy of each subcontract with the City before the subcontractor begins work.

Each subcontract must reference the Contract with the City and its terms and all of its parts are made part of that subcontract as applicable to the work it covers. Each subcontract must allow you to annul it at the City’s order if in the City's opinion the subcontractor fails to comply with Contract requirements. 1-3.2 (NOT USED)
1-3.3 Status of Subcontractors. The City will not conduct business with an individual, firm or organization, and you shall not employ or otherwise use at any tier, any subcontractor, supplier, or equipment vendor on the City’s debarment list, the Department of Industrial Relations debarment list, or the U.S. General Services Administration “List of Parties Excluded from Federal Procurement and Non Procurement Programs.”

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27 1-4 CONTRACT BONDS. Before executing the Contract, file surety bonds with the City for its approval in the amounts and for the purposes noted below. Bonds issued by a surety who is listed in the latest version of U.S. Department of Treasury Circular 570, who is authorized to issue bonds in California, and whose bonding limitation shown in that circular is sufficient to provide bonds in the amount required by the Contract, is approved unless the City specifically rejects them. Attach all of the documents listed in the Code of Civil Procedure, § 995.660 (a) to bonds from all other sureties and pay all bond premiums, costs and incidentals.

You and the Surety sign each bond and incorporate the Contract by reference. Notarize the Surety’s authorized agent’s signature.

Provide two sufficient surety bonds. The “Payment Bond” must be for 100 percent of the Contract Price to satisfy claims of material suppliers, and mechanics and laborers you employ on the Work. Maintain the bond in full force until the City accepts the Work and all claims for materials and labor are paid, and otherwise comply with the Civil Code.

The “Performance Bond” must be for 100 percent of the Contract Price to guaranty faithful performance of all work within the time prescribed, and in a manner satisfactory to the City, and that all materials and workmanship are free from original or developed defects. The bond must remain in effect until the end of all warranty periods in the Contract Documents.

Should any bond become insufficient, renew the bond within ten (10) days after notice from the City.

If at any time the City finds any surety unsatisfactory, City will notify you and no additional payments will be due or made under the Contract until a new surety qualifies and the City accepts it.

Changes in the Work or extensions of time made pursuant to the Contract do not release you or the surety from your and its obligations, and the Surety must waive notice of these changes or extensions.
1-5 THE CONTRACT DOCUMENTS.
1-5.1 General. Keep at the Work site a copy of the Plans and Specifications for the City Representative to access at all times. Supplement the Plans with those working drawings and shop drawings necessary to adequately control the Work.

If, either before beginning or during the work, you find any discrepancies between the Specifications and the Plans or between either of them and the physical conditions at the Work site, or find any error or omission in any of the Plans or in any survey, promptly notify the City of the discrepancy, error or omission. Promptly notify the City in writing if you observe any plans or specifications at variance with any applicable law, ordinance, regulation, order or decree.

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28 The City, on receiving the notice of any discrepancies, will investigate the circumstances and give you appropriate instructions. Until then, any work you do after discovering an error, discrepancy or conflict directly or indirectly affected by the error, discrepancy or conflict, is at your risk and you bear all costs arising from it.

The City will provide, free of charge, three (3) copies of Plans and Specifications for you and one (1) copy of Plans and Specifications for each subcontractor listed in your Proposal. The City can provide additional copies of the Plans or Specifications at your expense. Keep one set of Plans and Specifications in good order and available to the City Representative at the Work site.

Titled sections of the Contract Documents, including, without limitation, the Specifications, are for convenience only and do not dictate the trade or craft involved.

Where "as shown," "as indicated," "as detailed," or words of similar meaning are used, they refer to the Drawings accompanying the Specifications unless stated otherwise.

Where "provide," "furnish," "install," "complete," or words of similar meaning are used, they mean to put in place for the intended use or operation. Where "as directed," "as required," "as permitted," "as authorized," "as accepted," "as selected," or words of similar meaning are used, the City Representative’s direction, requirement, permission, authorization, approval, acceptance or selection is intended unless stated otherwise.

The Contract Documents are written in an abbreviated form, and may not include complete sentences. Omission of words or phrases like "Contractor shall," "shall be," etc., are intentional. Nevertheless, the requirements of the Contract Documents are mandatory. Omitted words or phrases are supplied by inference.

Words in the singular include the plural whenever applicable or the context indicates or requires.

In the interest of brevity, the Contract Documents frequently omit modifying words like "all" and "any" and articles like "the" and "an," but the fact that a modifier or an article is absent from one statement and appears in another does not affect the interpretation of either statement.
1-5.2 Contract Documents are Complementary and Inclusive. The Plans, Specifications and other Contract Documents govern the Work. The Contract Documents are complementary and cooperative. Anything in the Specifications not shown on the Plans or shown on the Plans and not in the Specifications, are as though shown on or in both.
1-5.3 Conformance with Laws. As applicable, unless modified elsewhere in the Specifications, Contract Work must conform to the current editions of: Uniform Building, Plumbing, Mechanical Codes, Uniform Fire Code, National Electrical Code, City of Fountain Valley Public Works Standard Plans, and Federal and State Standards.

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29 Perform all work according to the current editions and City of Fountain Valley Amendments to, the California Building Code, the California Electrical Code, the California Plumbing Code with key amendments, California Green Building Standards Code, Building Energy Efficiency Standards, California Playground Safety Regulations, City of Fountain Valley Codes & Ordinances, City of Fountain Valley Public Works Standard Plans, Americans with Disabilities Act (ADA), Chapter 11B Title 24 of the California Code of Regulations, California Public Contract Laws, the Specifications, Attachments, and Construction Plans and all their applicable requirements.

Check and review the Contract Documents, from a construction standpoint, for conformity and compliance with all laws, ordinances, codes, rules and regulations of all governmental authorities and public utilities affecting the construction and operation of the physical portion of the Project, all quasi-governmental and other regulations affecting the construction and operation of the physical portion of the project and other special requirements, if any, designated in the Contract Documents. If you see any violation of any law, ordinance, code, rule or regulation, or inconsistency with any restrictions or special requirements in the Contract Documents, give notice to the City Representative and correct the violation or inconsistency in the prescribed manner before beginning that portion of the Work. Unless specifically stated otherwise in the Contract Documents, Contract Document provisions take precedence in resolving any violation and inconsistency between provisions of the Contract Documents and provisions of any laws, ordinances, codes, rules and regulations applicable to the Work unless applying the provisions of the Contract Documents would directly violate those laws, ordinances, codes, rules and regulations. If the requirements of this article or the City Representative’s written interpretation or clarifications do not resolve the violation or inconsistency, the City Representative’s decisions and directives regarding the Work are final.
1-5.4 Intent of Plans and Specifications. The Plans and Specifications describe the Work. The Specifications describe Work not indicated on the Plans like quality of materials, workmanship and execution; the Plans generally describe Work dimensions, elevations and general layout. The Specifications do not specify every item of Work shown on the Plans nor do the Plans show all Work described or specified in the Specifications even if the items could have been included. Provide all aspects of the Work on the Plans or in the Specifications or that are reasonably inferable from them necessary to complete the Work, whether or not the aspects of the Work are expressly covered in the Plans or the Specifications. You are responsible for insuring the Work is sound, quality construction and for including all direct and indirect costs and expenses to cover all items indicated, described or implied in the Work. 1-5.5 Ambiguity, Conflicts, Difference or Discrepancy. In the event of an ambiguity, conflict, difference or discrepancy among the various Contract Documents, the more stringent, higher quality, greater quantity and higher-level work controls. If discrepancies in the Contract Documents are not corrected by Addenda during the bid period, you warrant that the scope and amount of your bid include all materials, supplies,

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30 equipment, services, facilities, apparatuses and methods of construction to provide the higher cost, quantity and quality.
1-5.6 Priority of Addenda. Addenda take precedence over all other Contract Documents at the time of bid. Subsequent Addenda issued govern over prior Addenda only to the extent specified, where applicable and according to Title 24, California Code of Regulations.
1-5.7 Standard Technical Specifications of Societies, Institutions, Associations, etc. Any reference to standard technical specifications of any society, institute, association or governmental authority refers to that organization's standard technical specifications in effect on the date you submit your bid for the Work. If applicable standard technical specifications are revised before completing any part of the Work, you may, if acceptable to the City Representative, perform that Work according to the revised standard technical specifications. The standard technical specifications, except as modified in the Contract Documents, are as though printed in the Contract Documents. Before beginning any portion of the Work, check and review the Contract Documents from a construction standpoint for conformance and compliance with the provisions of all standard technical specifications, listed or otherwise. If you note a conflict, ambiguity or discrepancy between the provisions of the Contract Documents and standard technical specifications, notify the City Representative and ensure the conflict, ambiguity or discrepancy, is corrected as prescribed before beginning that portion of the Work. Unless stated otherwise in the Contract Documents, provisions of the Contract Documents take precedence in resolving any conflict, ambiguity or discrepancy between the provisions of the Contract Documents and standard technical specifications. If the requirements of this article or the written interpretation or the City Representative’s clarifications do not resolve the conflict, ambiguity or discrepancy, the City Representative’s decisions and directives are final for proceeding with the Work. If you believe a City Representative’s order establishes a basis for an adjustment in the Contract Amount, Milestones and Contract Time, then pursuant to Article 2, submit a Request for Change Order within ten (10) days after the Construction Directive is issued.
1-5.8 Rules of Contract Interpretation. Provide the more stringent, higher quality material and work and greater quantities for the Work in the case of a conflict between the various sections of the Contract Documents, including the Plans and Specifications.

Where applicable, City-approved requirements on any item submitted as a Deferred Approval according to Title 24, California Code of Regulations, take precedence over any previously issued Addenda, Plan or Specification.

Except as provided in this section, in a conflict between the Plans, the following govern:

A. Specific notes govern over all other notes;
B. General notes, when identified as such, are incorporated in other portions of the Plans;
C. Schedules, when identified as such, are complementary with other notes and other portions of the Plans, including those identified as general notes; D. Larger scale Drawings govern over smaller scale Drawings;

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31 E. Calculated, derived or numerical dimensions govern over scaled dimensions; do not perform or allow Work to be performed based on dimensions obtained by scaling the Drawings.
1-5.9 Ownership and Use of the Contract Documents. Neither you, your Subcontractors, nor your material or equipment suppliers, own or claim a copyright in the Plans, Specifications and other Contract Documents or use them on other jobs. 1-5.10 Document Retention Policy. Maintain at your sole expense for a period of ten (10) years after the Notice of Completion is recorded, a full set of project records including plans, specifications, correspondences, submittals, record documents and all other project documentation in hard copy or electronic form. If the City or its designated agent or representative makes a written request for the documents, produce or make them available for review and photocopying or electronic reproduction within ten (10) days of receiving the City’s written request.
1-5.11 Request for Information (RFI) Procedures. This Section contains procedures Contractor shall follow when discovering any apparent conflicts, omissions, or errors in Contract Documents or when having any question about interpretation.

A. PROCEDURES

1. Submit requests for clarification or additional information in writing to City Representative using Request for Information (RFI) form provided by City Representative or a similar, City Representative-approved form.

2. Number RFIs sequentially. Add a sequential alphabetical suffix after the RFI number for each resubmission. For example, first RFI is 001, second is 002 and first resubmittal of RFI 002 is 002A.

3. Limit each RFI to one subject.

4. Submit an RFI if one of the following occurs:
a. Contractor discovers an unforeseen condition or a circumstance not described in Contract Documents.
b. Contractor discovers an apparent conflict or discrepancy between portions of Contract Documents that appears inconsistent or not reasonably inferred from intent of Contract Documents.
c. Contractor discovers what appears to be an omission from Contract Documents that cannot be reasonably inferred from intent of Contract Documents.

5. Submit a RFI or clarification when discovered. Submit RFIs promptly so as not to delay Contract schedule and allow City Representative full response time described below.

6. Do not submit a RFI:
a. As a request for substitution;
b. As a submittal;
c. Under pretense of a Contract Document discrepancy or omission without thoroughly reviewing documents;
d. In a manner suggesting specific portions of Contract Documents are assumed excluded, or by taking an isolated portion of Contract Documents in part rather than in whole;
e. In untimely manner without properly coordinating and scheduling Work of related trades.

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32 f. If Contractor submits a RFI contrary to any of above, Contractor shall pay cost of any review and City Representative shall deduct that cost from Contract sum.

B. RESPONSE TIME

6. City Representative, whose decision is final, shall resolve these questions and direct Contractor within a reasonable time. In most cases, City Representative will respond within ten days. In cases involving complex issues or emergencies, parties may agree in writing to lengthen or shorten response time as appropriate.

7. If Contractor proceeds with affected work before receiving City Representative’s response within timeframe described above, City Representative may require Contractor to remove or replace any portion of Work not done according to City Representative’s interpretations, clarifications, instructions, or decisions and Contractor is responsible for all resulting losses.

If Contractor and City Representative cannot agree on the scope of Contract requirements, Contractor shall follow procedures set forth in General Conditions.
1-5.12 Order of Precedence. Conflicts that cannot be resolved in accordance with the rules of interpretation set forth, shall be interpreted in accordance with the following order of precedence (the first being the highest order of precedence):

In the event of conflicting provisions within the Sourcewell/ezIQC Contract, the following order of precedence with item “a” representing the highest precedence, for resolution of the conflict shall apply:

1. Applicable Laws (provided, however, and notwithstanding, where the Contract Documents or manufacturer’s recommendations or specifications require standards higher than those of Applicable Laws, the Contract Documents or manufacturer’s recommendations or specifications shall control);

2. The Construction Documents

3. Drawings, subject to the following: (1) large scale plans and details take precedence over small scale Drawings in all cases; (2) full scale Drawings have precedence over both large and small scale Drawings in all cases; (3) detailed Plans and/or Drawings shall have precedence over general Plans and/or Drawings; (4) architectural and structural Drawings take precedence over electrical and mechanical Drawings in regard to location and arrangement of fixtures, outlets, and equipment; and (5) electrical and mechanical Drawings take precedence in describing and specifying equipment and in describing the diagrammatic requirements;

4. Work Order or Supplemental Work Orders;

5. Addenda;

6. Sourcewell EZIQC Contract #CA-R8-GB01-123021-HCC

7. Sourcewell Invitation for Bid number #CA-123021

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33 8. Standard and reference specifications which include industry norms, such as, but not limited to, ANSI and ASTM; and

9. Reference Documents.
1-6 SUBMITTALS.
1-6.1 General. Provide submittals as specified or when the City Representative requests. Do not furnish or fabricate materials or perform any work requiring submittals before the City Representative reviews and accepts them. Neither the City Representative’s review nor acceptance of submittals relieves you of responsibility for errors, omissions or deviations from the Contract Documents unless you specifically called them to the City Representative’s attention in the letter of transmittal. You are responsible for the accuracy of the submittals. Allow a minimum of twenty (20) Working Days to review submittals unless otherwise stated in the Specifications. Include a transmittal letter with each submittal. Include payment for submittals in the contract unit price for various bid items. The review period begins again after each submittal or resubmittal.

In providing submittals, you certify they are complete in all respects and that all materials, equipment, and other work included conforms to the Contract Documents.

Where the manufacturer, fabricator, subconsultant or designee, designs or engineers an item, an engineer registered by the State of California, executing the design within the scope of his registration, must sign the drawings and supporting calculations.

Unless the City Representative accepts it, only you may submit data. Data that, in the City Representative’s opinion, are incomplete or which you have not checked or which are illegible or do not comply with Contract requirements will be returned to you for resubmittal in the proper form. The City may make this determination at any time during the review period.

Submit data in a format similar to the arrangement of the applicable section(s) of the Specifications unless otherwise specified. The City will return for resubmittal, without review, any submittal that does not follow the format specified and does not conform to the requirements listed below:

1. Data includes drawings and descriptive information in sufficient detail to show the kind, size, arrangement and operation of component materials and devices, the external connections, anchorages and supports required, performance characteristics, dimensions needed for installation and correlation with other materials and equipment, and all additional information required in the detailed section(s) of the Contract Documents. Identify field dimensions and show their relation to adjacent or critical features, work or products.

2. Calculations, when the Specifications require them, to support the adequacy of the design to meet specified performance ratings or requirements.

3. Each drawing or data sheet clearly marked with the name of the project, your name and references to applicable Specification paragraphs and Plan sheets.

Collate submittals containing multiple drawings or data sheets prior to submittal.

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34 4. Where data sheets, catalog cuts or drawings show more than the item under consideration, cross out all but the applicable information. Submit only relevant pages; mark each copy of standard printed data to identify pertinent products referenced to Specification Section and Article number. Show reference standards, performance characteristics and capacities, wiring and piping diagrams and controls, component parts, finishes, dimensions and required clearances.

5. Include drawings showing wiring and pipe layouts on data submitted. Describe the proposed changes in a cover letter and show the essential details of the changes in the data submitted.

6. Present data clearly and thoroughly. Title each drawing with the project name and number; identify each element of the drawings by reference to a sheet number and detail, schedule or room number of the Contract Documents.

7. Provide manufacturer's preparation, assembly and installation instructions.

8. Submit a full range of manufacturer's standard finishes except when more stringent requirements are specified, indicating colors, textures, and patterns for the City Representative’s selection.

9. Submit samples to illustrate functional characteristics of products, including parts and attachments. Label each sample with identification required for the transmittal letter. The Specification section lists approved samples for the Work.

10.Provide field samples of finishes for the Work at a location acceptable to the City Representative as required by the individual Specifications section. Install each sample complete and finished. You may retain in the completed work, finishes in place that the City Representative has accepted.

A letter of transmittal listing the submittal contents must accompany submittals.

Drawings must show the name of the project, your name and, if any, the names of suppliers, manufacturers and subcontractors. Submit shop drawings with enough time for the City’s review and in an orderly sequence according to the progress schedule to avoid delay in doing the Work. The City will return for resubmittal the following: drawings not submitted on either 11”x17” or 24”x36” sheets, submittals not accompanied by conforming transmittals, and transmittals sent with an incomplete form.

Use a separate letter of transmittal for each specific item or class of materials or equipment that requires a submittal. Transmitting shop drawings on various items using a single letter of transmittal is permissible only when the items taken together constitute a manufacturer’s “package,” or are so functionally related that expediency indicates review of the group or package as a whole.

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35 The City will return any submittal sent (1) without a transmittal letter, (2) with an incomplete form, or (3) by facsimile.

Assign a unique sequential number to each submittal package clearly written in the space provided on the transmittal letter. Use this number in all correspondence(s) to the City when referencing a particular submittal. Do not assign the same submittal number to different submittal packages.

On resubmittals, use the original submittal number followed by the revision number, i.e., the first resubmittal of submittal #1 is numbered 1R1, the second 1R2, etc. The City will return improperly numbered submittals and resubmittals without review. Indicate on the transmittal letter that either no exceptions to the Contract Documents are taken or deviations are submitted. List all deviations indicated on the transmittal letter. You are solely responsible for any omitted deviations. If any deviations are omitted, the City will return the submittal and the engineering data without review for resubmittal. You bear any consequences from the resulting delay(s).

The City Representative’s review of your submittals covers only general conformity to the Contract Documents. The City Representative’s acceptance of drawings returned marked NO EXCEPTION TAKEN or RESUBMITTAL NOT REQUIRED
(CORRECTIONS ARE NOTED) does not constitute a blanket approval of dimensions, qualities and details of the materials, equipment, device or item shown and does not relieve you of any responsibility for errors, omission or deviations from conforming to the Contract Documents. The City reserves the right to reject any previously accepted equipment, material and construction method that deviates from the Contract Documents. When the City returns drawings and data marked CORRECT AND RESUBMIT, make the corrections noted as the City Representative instructs, then resubmit in the same manner as the original submittal.

If the City Representative rejects the submittal, you are responsible for any subsequent time delays at no additional compensation from the City. Subject to these requirements, drawings and data, after final processing by the City Representative, become part of the Contract Documents and the work they show or describe is performed in conformity with them unless the City Representative requires otherwise. In the event of conflict between accepted submittals and other Contract Documents, the most stringent requirements apply unless the City has agreed in writing to less stringent requirements in response to a deviation listed on a submittal letter of transmittal.

Do not begin any part of the Work requiring a submittal until the City Representative has reviewed it and returned it to you with a notation indicating that resubmittal is not required.

The City Representative’s review is only of general conformance with the design of the project and general compliance with the Contract Documents. It does not relieve you of full responsibility for providing Contract-required materials, equipment and work, properly fitting and constructing the Work, providing accurate and complete submittals,

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36 selecting construction fabricating processes and techniques and performing the Work safely.
1-7 WORK TO BE DONE. Perform all work necessary to complete the Contract in a satisfactory manner. Unless otherwise provided, furnish all materials, equipment, tools, labor and incidentals necessary to complete the Work. Leave the Work area in a neat condition. Perform any work not shown in the Plans or Specifications but necessary to complete the Work according to law and government codes and regulations as if in the Plans and Specifications.

Remove and dispose of all structures, debris or other obstructions of any character necessary to accommodate the Work. Where the obstructions are improvements the City is not legally required to remove, you must remove, maintain and permanently replace them at your expense.
1-8 SUBSURFACE DATA. Soil and test hole data, groundwater elevations and soil analyses shown on the Plans or included in the Specifications apply only at the location of the test holes and to the depths indicated. Soil test reports for test holes already drilled are available for inspection at the City Representative’s office. You may perform additional subsurface exploration at your own expense. The indicated groundwater elevation is that which existed on the date specified in the data. It is your responsibility to determine and allow for the groundwater elevation on the date you perform the Work.

A difference in groundwater elevation between that shown in soil boring logs and that actually encountered during construction is not a basis for Extra Work per 2-3. 1-9 RIGHTS OF WAY.

The City has provided rights-of-way, easements, agreements, licenses or rights of entry (collectively, right of way) for the Work. The City may also have acquired temporary right of way to construct one or more portions of the Work. If the City did acquire temporary right of way, the documents or their contractual terms and obligations are included in the Contract Documents. Comply with all the terms and obligations related to the physical use of the temporary right of way and the eventual return of the property to the owner. Schedule Work that may include landscape establishment, maintenance periods and final acceptance within the temporary right of way to start and finish within the time allotted in each temporary right of way agreement. If, through no fault of the City, there is a work delay, you are responsible for all costs the City incurs to extend use of the temporary right of way.
1-10 REFERENCE POINTS AND ELEVATIONS.
1-10.1 General. When required by the Work, the City will furnish, at its expense, an engineering survey of the project site giving, as applicable, benchmark elevation points, property lines and corners. Lay out the Work and preserve all established benchmark elevation points, property lines and corners and do not demolish, relocate or change the location of any benchmark elevation point, property line or corner without the City Representative’s prior written approval. If any benchmark elevation point, property line or corner is lost, destroyed or relocated, notify the City Representative before replacing

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37 and relocating it. At your expense, engage the services of a State of California licensed surveyor to replace and relocate benchmark elevation points, property lines or corners lost, destroyed or relocated.
1-10.2 Conformity with the Contract Documents. The Work must conform to the lines, grades, dimensions, tolerances and material and equipment requirements shown on the Contract Documents, and Work Order. Although the City Representative may consider measurement, sampling and testing in determining conformity, the City Representative is the sole judge of whether the work or materials deviate from the Contract Documents and that decision is final.

If the Plans do not show specific lines, grades and dimensions, those the City Representative furnishes govern.
1-11 CITY REPRESENTATIVE’S AUTHORITY. The City Representative is authorized to enforce compliance with the Plans and Specifications. Promptly comply with the City Representative’s instructions. The City Representative’s decision is final and binding on all questions relating to quantities, acceptability of material, equipment or work, execution, progress or sequence of work and interpretation of the Plans, Specifications or other Contract Documents. This precedes any payment under the Contract unless the City Representative orders otherwise.

Subject to the provisions of Government Code § 8546.7, this Contract and all related documents are subject to the examination and audit of the State Auditor at the request of the City or as part of any audit of the City, for a period of three (3) years after final payment under the Contract.

At the City’s request, prepare and give the City any reports concerning your performance under this Contract. The City may also, at any time, with 72 hours advance written notice, audit your books, records and documents related to your performance and your compliance with all Contract terms and conditions.

All drawings, documents, and other materials you prepare in performing this Contract are:

A. City property. At the City’s request or upon termination of the Contract, deliver them to the City at your cost; and
B. Confidential. Do not make them available to any individual or entity without the City’s prior written consent.
1-12 INSPECTION.
1-12.1 General. The City Representative will inspect the Work and the inspection will include monitoring and enforcing compliance of materials, equipment, installations, workmanship and methods to requirements of the Contract Documents.

The City Representative must, at all times, have safe access to the Work during construction and must be given every reasonable means to ascertain the progress, workmanship and character of materials and equipment used in the Work.

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38 If you change project work hours and require City inspection services during those hours, give the City Representative at least two Working Days written notice to arrange them.

The City Representative will inspect all installations to be backfilled or covered, before backfilling. Give the City Representative a minimum of two Working Days advance notice before backfilling or covering any part of the Work.

Work performed or materials concealed without the required notice specified above is subject to any tests or exposure necessary to prove to the City Representative’s satisfaction that all materials used and work done conform to the Contract Documents.

Furnish and pay for all labor and equipment necessary to expose, test and replace, at no cost to the City, any materials or work damaged by exposure or testing.

At your expense, make good defective work including any unsuitable materials and equipment the City Representative inspected and whose payment has been included in an estimate for payment.

Inspection of the Work does not relieve you of your obligation to fulfill all Contract requirements.

Send all Work-related inspection submittals and correspondence between you and the City to the City Representative.

Follow directions and procedures for code inspections mandated by building permits. The City will charge contractors for additional inspection fees for the third re-inspection on any item and every re-inspection thereafter. 1-12.2 Inspection Requirements. Notify the City Representative a minimum of two Working Days before inspection is required.

Unless stated elsewhere in the Specifications, the City will inspect the Work between 7a.m. and 4:00 p.m., Monday through Friday, excluding City holidays. Pay for any inspections required by your actions outside these hours at the prevailing rate of one and one-half (1 ½) times the regular hourly wage rate plus twenty-one (21) percent for overhead costs.

A. Submit a request to the City Representative for approval a minimum of five (5) Calendar Days, before inspections are required as a result of your actions on Saturdays, Sundays or City and federal holidays. Pay for these inspections at the prevailing rate of 1 1/2 times for Saturdays and 2 times the regular hourly wage rate for Sundays or City and federal holidays plus associated overhead costs.

B. For purposes of this section, the City observes the following holidays:

1. New Year's Day

2. Martin Luther King Jr. Day

3. Presidents’ Day

4. Memorial Day

5. Independence Day

6. Labor Day

7. Veteran’s Day

8. Thanksgiving Day

9. Day after Thanksgiving

10. Christmas Day

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39 A construction calendar showing the days each of these holidays are observed is available from the City Representative.

C. Telephone the City Representative at least two (2) Working Days before starting construction or resuming construction after suspension of the Work for any reason.

Before beginning any work on the Contract, submit a complete City of Fountain Valley Encroachment Permit form.

D. In addition to any inspection required by Codes and Ordinances or Contract Documents, notify the City Representative a minimum of two (2) Working Days before permanently concealing any materials or work. The following list is typical but not inclusive of such required inspections:

1. Foundation/subgrade material, footing and slab beds

2. Reinforcing for concrete, masonry and plaster

3. Contact surface of concrete forms

4. Concrete and masonry surfaces

5. Piping and conduit

6. Finish grade prior to paving, seeding or planting

2. All soil mixes prior to installation

3. All chemicals and amendments prior to installation or application

4. Framing

5. Insulation

6. Waterproofing
1-13 SPECIAL NOTICES. Any notice that is to be served according to this section, whether provided in the Specifications or directed by the City Representative, must be in writing, dated and signed by you or the City Representative. These notices are not effective unless served as follows:

A. Notice to the City: by personal delivery or by deposit in the United States mail, in a sealed envelope addressed to the City, postage paid and registered.

B. Notice from the City to you: by personal delivery to you or to your authorized representative or by deposit in the United States mail, in a sealed envelope addressed to you at your regular place of business or any other address established to conduct the work under this Contract, postage paid and registered.

C. Notice to the surety or to any other person: by personal delivery, or by deposit in the United States mail, in a sealed envelope addressed to the surety or person at the address of the surety or person given to the noticing party, postage paid and registered.
1-14 CORRESPONDENCE. Unless the City Representative specifies or requests otherwise, do not send routine correspondence, including submittals, by facsimile (fax) machines. The City will allow internet email for urgent matters such as notification of a change of conditions. Unless otherwise allowed by the City Representative, direct all internet email to the City Representative. The City Representative will give you his/her

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40 internet email address at the pre-construction meeting. Internet email received after 2 p.m. is considered received the following Working Day. Follow up all internet email with a paper copy mailed to the City Representative on the same day you send the internet email. The City Representative will not accept any illegible internet email correspondence.
1-15 CONTRACT COORDINATION. Coordinate scheduling, submittals and the Work to assure an efficient and orderly sequence of installing construction elements that will accommodate later installations.

Hold coordination meetings and pre-installation conferences with City Representatives and subcontractors in addition to the weekly progress meetings required by the City, to assure coordination of the Work.

If the City exercises partial Acceptance or beneficial occupancy of the premises, coordinate site access to complete work or to correct defective work and work not strictly conforming to the Contract Documents to minimize disruption of the City's activities.
1-16 REVIEW OF DOCUMENTS, SITE AND EXISTING IMPROVEMENTS 1-16.1 Contractor’s Duty of Review. Contractor’s submission of its Bid and execution of the Sourcewell Indefinite Quantity Construction Agreement constitutes its representation, acknowledgement and agreement that it had sufficient time, access and opportunity prior to the Bid Closing Deadline to conduct a careful and thorough examination, to its satisfaction, of:
1-16.1.1 the Bidding Documents, Contract Documents, Reference Documents and other information provided by Sourcewell to Contractor prior to the Bid Closing Deadline concerning the application and use of the Construction Task Catalog & Specifications (CTC & Specs) in determining the Contractor’s ability to successfully perform work under this EZIQC Contract, including but not limited to proper use of detailed line items in the CTC and calculation of associated pricing commensurate with the Contractor’s means and methods, in determining the bid factors.
1-16.1.2 the visible conditions at the Site associated with this EZIQC Contract and associated Work Order and its surroundings, visible conditions of Existing Improvements and their existing uses by City or the public, routes of ingress and egress, and local conditions in the vicinity of the Site (including, without limitation, sources and availability of labor, materials and equipment);
1-16.1.3 the status of any construction at the Site associated with this EZIQC Contract and associated Work Order concurrently under construction; and 1-16.1.4 all information concerning visible and concealed conditions above and below the surface of the ground at the Site associated with this EZIQC Contract and associated Work Order and in Existing Improvements (including, without limitation, surveys, reports, data, as-built drawings of Existing Improvements and utility sources, capacities and

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41 locations) that was either (1) provided by City to Contractor or other Bidders (including, but not limited to, the Bidding Documents and Reference Documents).

ARTICLE 2 – CHANGES IN THE WORK
2-1 CHANGES REQUESTED BY THE CONTRACTOR.
2-1.1 General - The City Representative may grant changes to the Plans and Specifications that you request in writing, which do not materially affect the Work and which are not detrimental to the Work or to the City’s interests. This does not grant you the right to demand that the City Representative accept your changes.

To request a change, submit a written Request for Change Order to the City Representative that contains:

A. Description(s) of the proposed change(s);
B. Statement(s) of the reason(s) for the change(s);
C. Reference to applicable Specifications sections and specific plans that support your request(s);
D. Statement of the effect on the Contract Price and Contract Time; E. Statement of the effect on the work of separate subcontractors; F. Documentation supporting any change in Contract Price or Contract Time, if appropriate.
2-2 CHANGES REQUESTED BY THE CITY.
2-2.1General. The City may issue a written Change Order that includes the dollar value of the change or establishes the payment method and any adjustment in the Contract Time to modify the Work including, but not limited to, the Plans, Specifications, character, quantity or time of the Work. A Supplemental Work Order may be issued in association with an existing approved Work Order, under this EZIQC Contract, to address deleted work or compensable changes.
2-2.2 Contract Adjustments. Contract Adjustments to the Work Order Contract shall only be permitted as follows: (1) the Contract Price shall only be adjusted by means of a Request for Change Order; and (2) the Work Order Contract Time shall be adjusted by means of a Request for Change Order. All Contract Adjustments to the Contract Price shall conform, without limitation, to the requirements of this Article 2. All Contract Adjustments to the Contract Time shall conform, without limitation, to the applicable requirements of this Article 2.
2-2.3 Work Order Adjustments. Adjustments to projects for which a Work Order hasbeen issued under the Sourcewell Contract shall only be permitted as follows: (1) a Supplemental Work Order shall be issued to offset the original Work Order amount by adding or deleting scope and the agreed price in accordance with the contract. A Supplemental Work Order will adjust the project cost by providing the primary back-up documentation to an approved City Request for Change Order; and (2) A Supplemental Work Order may also be used to offset the Work Order Time by adding or deleting days by providing primary back-up documentation to an approved City Request for Change Order. All Work Order Adjustments shall conform to the requirements of each project for which Sourcewell-EZIQC Contracting program is being used and to the Contract Documents, without limitation, as well as to the requirements of this Article 2.

All Work Order Adjustments to Time shall conform, without limitation, to the applicable requirements of this Article 2.
2-2.4 Written Authorization. Any Change performed by Contractor pursuant to any

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42 direction other than a duly authorized and executed Supplemental Work Order, Change Order, Unilateral Change Order or Construction Change Directive shall be at Contractor’s Own Expense.
2-2.5 Change Orders. The City Representative may order minor changes in the Work not involving an increase or decrease in the Contract Price, or a change in the time for completion but that are consistent with the purposes for which the work is being constructed. If you believe any order for minor changes in the Work involves changes in the Contract Price or time of completion, stop work on the minor changes ordered and immediately after receiving the order, notify the City Representative in writing of your estimate of the change in the Contract Price and time of completion.

A Supplemental Work Order is a written instrument, prepared by the Contractor, using the e-Gordian software associated with the Sourcewell-EZIQC Program, stating:

5.3.2.1 a Compensable Change or Deleted Scope of Work;

5.3.2.2 a Compensable Delay or Excusable Delay;

5.3.2.3 the amount of the Work Order Adjustment, if any, to the Work Order Price; and/or

5.3.2.4 the extent of the Work Order Adjustment, if any, to the Work Order Time.
2-2.6 UNILATERAL SUPPLEMENTAL WORK ORDER
2-2.6.1 Unilateral Supplemental Work Order. A Unilateral Supplemental Work Order shall be the primary back-up documentation to a Unilateral Change Order issued by the City. The purpose of the Unilateral Supplemental Work Order is to provide the City with a flexible procedure by which it may respond expeditiously to its needs. By virtue of this clause, the City is entitled to order Work and to bind the Contractor to performance of the Work as needed for the term of this EZIQC Contract.
2-2.6.2 Purpose. The purpose of a Unilateral Supplemental Work Order is to establish the City’s estimate of a disputed Contract Adjustment.
2-2.6.3 Good Faith Determination. The City's determination in a Unilateral Supplemental Work Order of a Contract Adjustment shall be based upon a Good Faith Determination by City of the Contract Adjustment that is appropriate under the circumstances and consistent with the terms of the Contract Documents. 2-2.6.4 Claim by Contractor. If Contractor disputes any portion of the City’s Good Faith Determination of a Contract Adjustment that is set forth in a Unilateral Supplemental Work Order, Contractor shall file, within thirty (30) Days after issuance of the Unilateral Supplemental Work Order by City, a Claim. The amount of the Contract Adjustment requested in the Claim shall not exceed the difference between the amount (either in terms of dollar amount or number of Days) of the Contract Adjustment requested by Contractor and the amount (either in terms of dollar amount or number of Days) of the Contract Adjustment granted in the Unilateral Supplemental Work Order. Contractor shall

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43 have no reserved right, and hereby waives any such right that may exist under Applicable Laws, to seek in such Claim a Contract Adjustment or recovery that is based upon any amount (either in terms of dollar amount or number of Days) that is in excess of such difference.

The City will not pay for changes in the Work or in the time of completion unless the changes are covered by a City-approved, written Request for Change Order before you begin the changed work.

Once both parties execute a Request for Change Order, it is final and you waive your right to seek additional compensation for the work covered or by any project impacts.

All Request for Change Orders constitute full payment for the work they cover, including all direct and indirect overhead expenses.

Despite any other provisions in the Contract Documents, the City’s Request for Change Order does not constitute the City’s waiver of, or preclude the City from asserting, any claim respecting it, including but not limited to, a claim of breach of contract or a claim that the issued Request for Change Order covers work included in the scope of Work in the Contract Documents for which you were not entitled to additional funds and time extension.

A Request for Change Order is approved when the City signs it and a purchase order is issued. A Supplemental Work Order, as back-up to all Request for Change Orders, and a City Request for Change Order shall be executed by the City and Contractor. A Unilateral Change Order shall be executed by the City.

Supplemental Work Orders, Request for Change Orders, Unilateral Change Orders and Construction Change Directives shall be executed using forms furnished by City or, if requested by the City, using forms furnished by Contractor that are approved by the City.

The City Representative may approve and issue a Contract Change Order at any time.

If you disagree with any terms or conditions in an approved Contract Change Order, you did not execute, proceed with the Change Order work according to 2-5 of the Specifications and submit a written protest to the City Representative within fifteen (15) days after receiving the approved Contract Change Order. The protest must include the points of disagreement and cite the Specification references, quantities, and costs involved. If you do not submit a written protest, you will be paid per the approved Contract Change Order and that payment constitutes full compensation for all work included in or required by it. The City considers unprotested approved Contract Change Orders as executed Contract Change Orders.

The City Representative may also initiate changes by sending you a Request for Quotation that includes a detailed description of the change, products, location of the change and supplementary or revised Plans and Specifications. This request is not an instruction to execute the changes or to stop work in progress.

Support each quotation for a lump-sum proposal and for each unit price not previously established, with sufficient substantiating data to allow the City Representative to evaluate the quotation.

On request, provide additional data to support time and cost computations, labor, equipment, product requirements, a recommended purchase source and unit cost and quantities required, taxes, insurance as well as credit for work deleted from the Contract, similarly documented, and justification for any change in Contract Time.

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44 Support each claim for additional costs and for work done on a time-and-material/force account basis with the documentation required for a lump-sum proposal, plus the following:

A. Name of the City Representative who ordered the work and the date of the order; B. Dates and times work was performed and by whom;
C. Time record, summary of hours worked and hourly rates paid; D. Receipts and invoices for equipment used showing dates and times of use, products used, quantities and subcontracts.

In lieu of a Request for Quotation, the City Representative may issue a written Field Order for you to proceed with a change subsequently included in a Contract Change Order. Field Orders describe changes in the Work, both additions and deletions, and include a copy of revised Contract Documents defining details of the change and designate how any change in the Contract Price and the Contract Time is determined.

The City Representative will sign and date the Field Order as authorization for you to proceed with the changes. You may sign and date the Field Order to indicate agreement with its terms. Do the work ordered before you receive an approved Contract Change Order.
2-2.7 Agreed Prices. If mutual agreement cannot be reached, the City Representative may direct you to proceed, on the basis of Extra Work per 2-3, except as otherwise specified in 2-2.2.2 and 2-2.2.3. Agreed prices must be negotiated before beginning the changed work.
2-2.8 Eliminated Items. If any Bid item is eliminated, payment will be for your actual costs incurred in connection with the eliminated item before written notification from the City Representative stating its elimination. If you order material conforming to the Plans and Specifications to use in the eliminated item before the date the City Representative notifies you of its elimination and that order cannot be canceled, you will be paid for the actual cost of the material which then becomes the City’s property. The City will pay you for additional actual handling costs. If the material can be returned, you must return it and the City will reimburse you for the actual cost to do so as well as any handling charges. Actual costs as used here are computed based on Extra Work per 2-3. 2-2.9 Acceleration Clause.

B. The City reserves the right to accelerate the Work. If the City directs acceleration, its directive will be in writing. Keep cost and other project records related to the acceleration directive apart from normal project costs and records and provide a daily written record of the acceleration cost to the City.

C. If you believe that the City’s action or inaction constitutes an acceleration directive, immediately notify the City in writing. In your written notification, detail the circumstances of the acceleration directive. Do not accelerate your work efforts until the City responds. If the City directs or requires acceleration, maintain all cost records referred to above and provide them to the City daily.

D. To recover additional costs due to acceleration, document the additional expenses you incurred and paid. The only recoverable labor costs are overtime or shift premium costs, or the cost of additional laborers brought to the Site to perform the accelerated work. The only recoverable equipment costs are the cost of added equipment mobilized to the Site to perform the accelerated work.

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45 a. EXTRA WORK.
2-3.1 General. The City Representative will classify new or unforeseen work not covered by Contract Unit Prices as Extra Work.

All costs set forth in A through J, below, are part of your overhead and profit and as included in the Contract Amount and covered in 2-3.2.6. Do not include any of the following in the Cost of the Work:

A. Payroll costs and other compensation of your project manager, superintendents, project engineers, officers, executives, principals, owners, general managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks and other personnel you employ at the Project site or in your principal or a branch office for general administration of the Work;
B. Costs and expenses of your principal office, branch offices and office located at the Project site;
C. Any part of your capital expenses, including interest on your capital employed for the Work and charges against you for delinquent payments; D. Cost of premiums for all bonds and for all insurance whether or not the Contract Documents require you to purchase and maintain them excepting the cost of premiums in 2-3.2.6;
E. Costs due to negligence, act or failure to act by you, any subcontractor, or anyone else directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, correcting defective Work, disposal of materials or equipment furnished in error and repair and replacement of any property damage;
F. Consumable materials, such as drill bits, abrasive discs, gloves, rags, rope, welding tips, etc.;
G. Tools and equipment with an original costs of less than $1,000; H. Other overhead or general expense costs of any kind and the cost of any item not specifically set forth in 2-3.2.6;
I. Consequential expenses including bonding capacity impairment, lost opportunity, labor, wage or cost escalations, legal expenses or changes in taxes; J. All costs in 2-3.1 apply to any claims of subcontractors and suppliers, regardless of tier.
2-3.2 Payment.
2-3.2.1 General. When City and Contractor cannot agree on the price for extra work, the City will pay for the extra work based on the accumulation of costs provided here. 2-3.2.2 Basis for Establishing Costs.

A. Labor - The cost of labor is the actual cost for the wages of workers performing the Extra Work, plus employer paid payroll taxes, workers’ compensation insurance, liability insurance, health and welfare, pension, vacation, apprenticeship funds and other direct costs resulting from federal, state, or local laws, as well as assessments or benefits required by lawful collective bargaining agreements.

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46 Do not use a labor classification that would increase the Extra Work cost unless you establish the need for it. Report labor costs for equipment operators and helpers only when the costs are not included in the invoice for the equipment rental. The labor cost for foremen must be only for time spent on the Extra Work.

B. Materials - Report the cost of materials at the invoice or lowest current price at which the materials are locally available and delivered to the Work site in the quantities required plus sales tax, freight and delivery. The City reserves the right to approve materials and supply sources or to supply materials to you if necessary for the progress of the Work. The City will not apply a markup to any material it provides. 2-3.2.3 Tools and Equipment Rental. To determine equipment rental rate costs, use the rates listed for the equipment in the State of California, Department of Transportation (Caltrans) publication “Equipment Rental Rates and Labor Surcharge,” available from Caltrans at https://dot.ca.gov/programs/construction/equipment-rentalrates-and-labor-surcharge in effect on the date the work is performed, regardless of ownership and any rental or other agreement you enter into to use the equipment. If the City Representative decides it is necessary to use equipment not listed in that publication, the City Representative will establish a suitable rental rate. You may furnish any cost data that might assist the City Representative to establish the rental rate. Rental time is not reimbursable while the equipment is inoperative due to breakdowns.

Operators of rented equipment will be paid as provided in 2-3.2.2.

The rental rates paid include the cost of fuel, oil, lubrication, supplies, small tools, necessary attachments, repairs and maintenance of any kind, depreciation, storage, insurance necessary equipment loading, transportation costs and all incidentals.

Equipment used intermittently that could, when not in use, be returned to its rental source at less expense to the City than holding it at the Work site, must be returned unless you elect to keep it at the Work site at no expense to the City.

All equipment must be acceptable to the City Representative, in good working condition and suitable for the purpose for which it is used.

The reported rental time for equipment already at the Work site is the duration of its use on the Extra Work. This time begins when the equipment is first used on the Extra Work plus the time required to move it from its previous site and back or to a closer site 2-3.2.4 Other Items. The City may authorize other items required on the Extra Work including labor, services, material and equipment. These items must be different from those required for the Work and be of a type not ordinarily available from you or subcontractors.
2-3.2.5 Invoices. Submit vendors’ invoices for material, equipment rental and other expenditures with the daily report per 2-3.3. If you do not substantiate the daily report with invoices or other documentation, the City will establish the cost of the item involved at the lowest price that was current at the time of the report. 2-3.3 Contractor Daily Reports. When we cannot agree on the cost of the Extra Work, submit a daily report to the City Representative on City-approved forms that includes

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47 applicable delivery tickets listing all labor, materials and equipment involved for that day and other authorized services and expenditures. If you do not submit the daily report by the close of the next working day, you waive any rights for that day. The City will try to reconcile the report daily, which you and the City Representative will sign. If there is a disagreement, then each party will enter relevant notes to explain the points in question.

Each party keeps a signed copy of the report. Submit reports by subcontractors or others to the City.

Notify the City Representative at the beginning of each day when Extra Work is in progress. The City will not pay for work it has not verified.

The report shall:

A. List the names of workers, classifications and hours worked B. Describe and list quantities of materials used
C. List the equipment type, size, identification number and hours of operation including loading and transportation, if applicable
D. Describe other services and expenditures the City requires. 2-3.4 Price Reduction for Defective Cost or Pricing Data.

A. If the City determines that any price, including profit or fee, negotiated in connection with any Request for Change Order or claim settlement under this Contract, or any cost reimbursable under this Contract, was increased because:

1. You furnished cost or pricing data that was not accurate, complete and current as certified in your Certificate of Current Cost or Pricing Date;

2. A subcontractor, supplier, materialman or prospective subcontractor at any tier furnished cost or pricing data to support a subcontract in your cost estimate that was not accurate, complete and current on the date certified in your Certificate of Current Cost or Pricing Data; or,

3. You or a subcontractor, supplier, materialman or prospective subcontractor at any tier furnished data not within numbers 1 or 2 above, which was not accurate.

B. The City will reduce the price and modify the Contract in writing, if necessary, to reflect the reduction. Any reduction in the Contract price because of a prospective subcontractor’s defective subcontract data, when the subcontract was not awarded to that subcontractor, is limited to the amount plus applicable overhead and profit, by which the actual subcontract or actual Contract cost if there was no subcontract, was less than the prospective subcontract cost estimate you submitted, provided that the actual subcontract price was not affected by the defective cost or pricing data.

C. Provide the following certification on all Request for Change Order cost quotations or requests or all requests for equitable adjustment exceeding $5,000.

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48 CERTIFICATE OF CURRENT COST AND PRICING DATA
This is to certify that, to the best of my knowledge and belief, cost or pricing data submitted in writing, or specifically identified in writing if actual submission of the data is impractical, to the City to support (proposal quotation, request for equitable adjustment, or other submissions involved, appropriately identified) are accurate, complete and current as of (date).

Contract No.

Request for Change Order No.

Company:

Name:

Title:

Date:

Signature:
b. CHANGED CONDITIONS. Notify the City Representative of the following Work site conditions, “changed conditions,” in writing, when discovered and before disturbed:
i.Subsurface or latent physical conditions differing
materially from those represented in the Contract
Documents;
ii.Unknown physical conditions differing materially from those ordinarily encountered and generally recognized as inherent in work of the character being performed; and
iii.Remove to a Class I, Class II or Class III disposal site according to provisions of existing law, material differing from that in the Contract Documents you believe may be hazardous waste as defined in § 25117 of the Health and Safety Code
The City Representative will investigate conditions that appear to be changed conditions. If the City Representative determines that conditions are changed conditions and will materially affect costs, the City Representative will issue a Request for Change Order, utilizing the City’s Change Order Request Form, adjusting compensation for that portion of the Work according to 2-2.6, and you may submit a written request for a time extension according to 5-6, which the City Representative may grant.

If the City Representative determines that the conditions do not justify a compensation adjustment, then you will be notified in writing. The notice will also advise you of your obligation to notify the City Representative in writing if you disagree.

If you disagree with the City Representative’s decision, submit a written notice of potential claim to the City Representative before beginning the disputed work. This dispute does not excuse you from any scheduled completion date in the Contract and you must proceed with all Contract Work. However, you retain all rights provided either

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49 by the Contract or by law pertaining to dispute and protest resolution between the contracting parties. Proceed according to 2-5.

Failing to give notice of changed conditions when discovered and before being disturbed constitutes a waiver of all claims connected to them. c. DISPUTED WORK. If we are unable to reach agreement, the City may direct you to proceed with the Disputed Work and will pay you pursuant to 2-2, 2-3, mediation or arbitration if the City and Contractor agree to it, or as fixed in a court of law.

Keep and furnish records of Disputed Work to the City Representative according to 2-3 but do not construe this as proceeding under 2-3.

ARTICLE 3 – CONTROL OF MATERIALS
3-1 MATERIALS AND WORKMANSHIP.
3-1.1 General. Furnish all materials required to complete the Work, except materials the Specifications designate as City-furnished materials.

All materials, parts, and equipment you furnish for the Work must be new, high grade and defect free. Do not use used materials, parts and equipment unless allowed in the Specifications.

The quality of materials and workmanship are subject to the City Representative’s approval. The City Representative will reject materials and workmanship that do not conform to the requirements of the Specifications. At the City Representative’s direction, immediately remove defective work or material, whether in place or not, from the Work site at your expense.

If you fail to replace defective or damaged work or materials after reasonable notice, the City Representative may have the work or materials replaced and deduct the replacement expense from money owed you.
3-1.1.1 Contractor Equipment and Plants. Operate only equipment and plants suitable to produce the quality of work and materials required on the project. Maintain the equipment and plants in good repair during the Work. Do not use obsolete or badly worn equipment and plants; do not exceed the Manufacturer’s ratings.

Design and construct plants according to the general practice for the equipment and with enough capacity to ensure a material production rate adequate to ensure completion within the time limit(s) specified in the Contract Documents, if any.

When ordered by the City Representative, remove unsuitable equipment from the Work site and do not use the unsatisfactory plants and equipment. 3-1.1.2 Adoption or Revision Date for Standards, Codes and Tests. Whenever a standard, code, specification, or test is referred to and the designation representing the adoption date or the latest revision is omitted, use the latest revision of the standard, code, specification or test in effect on the day the Notice Inviting Bids is dated.

Submit, according to Public Contract Code § 3400, data substantiating requests for substitution of “equal” items within thirty-five (35) days of Contract award or before 10 percent of the Contract Working Days have expired, whichever is less. This time is included in the number of Working Days allowed to complete the Work. The City Representative’s decision regarding substitution acceptability is final.

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50 Materials, equipment and supplies provided must, at no charge to the City, fully conform to all applicable local, state and federal safety laws, rules and regulations and orders and provide only those materials, equipment, and supplies even though omitted in the Contract Documents, of the particular material, equipment or supply specified. 3-1.2 Protection of Work and Materials. Provide and maintain storage facilities and employ measures that preserve the specified quality of materials used in the Work.

Stored materials must be reasonably accessible for inspection. Adequately protect new and existing work and all equipment for the duration of the Contract.

Do not, without the City’s written consent, assign, sell, mortgage, pledge or remove installed or delivered equipment or materials necessary to complete the Work. 3-1.3 Inspection Requirements. The City Representative may inspect and test materials for the Work. Supply without charge, any samples that may be required.

Give the City Representative a list of your sources of materials, including locations where the materials will be available for inspection a minimum of twenty (20) Calendar Days before they are used. The City Representative may inspect, sample or test materials at the supply source or at other locations, but the inspection, sampling or testing will not happen until you assure the City Representative of both your cooperation and assistance and that of the materials supplier. Ensure that the City Representative has free access at all times to the material(s) inspected, sampled or tested. These inspections and tests, if made other than where the material will be incorporated in the Work, do not guarantee acceptance of the material or the continued acceptance of material presumed similar to what the City inspected and tested The City’s inspection and testing do not relieve you or your suppliers of responsibility for quality control.

Deliver the manufacturers' warranties, guarantees, instruction sheets and parts lists furnished with certain materials incorporated in the Work, to the City Representative before the Contract Work is accepted.

You may examine reports and records of inspections made and tests performed when they are available at the Work site.
3-1.3.1 General. The City Representative may inspect material production or product manufacture at the supply source but not before you assure the City Representative of the cooperation and assistance of both you and the material producer. The City Representative must have free entry at all times to the parts of the plant that concern the manufacture or production of the materials. Furnish free of charge, adequate facilities to make the necessary inspection. The City assumes no obligation to inspect materials at the supply source.

Unless otherwise stated in the Specifications, inspection is required at the source for asphalt concrete pavement mixtures, structural concrete, metal fabrication, metal casting, welding, concrete pipe manufacture, protective coating application and similar shop or plant operations. The Specifications list additional materials and fabricated items that require inspection at the source.

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51 Steel pipe in sizes less than 18 inches and vitrified clay and cast iron pipe in all sizes, are acceptable when certified as compliant with the Specifications, subject to sampling and testing by the City. Standard items of equipment such as electric motors, conveyors, elevators, plumbing fixtures, etc., are inspected only at the Work site.

Special items of equipment like designed electrical panel boards, large pumps, sewage plant equipment, etc., are inspected only at the performance testing source. Inspection at the source for other items is provided in the Specifications. 3-1.3.2 Inspection of Materials Not Locally Produced. When you intend to purchase materials, fabricated products or equipment from sources more than 50 miles beyond the City’s geographical limits, engage at your expense an inspector or accredited testing laboratory, approved by the City Representative, to inspect the materials, equipment or process before producing any material or equipment. The inspector or representative of the testing laboratory must evaluate the materials to confirm they comply with the requirements of the Plans and Specifications. Forward the required reports to the City Representative. The approved agent must conduct a proper inspection before any materials ship or are processed, fabricated, or treated. The agent’s approval does not relieve you of your responsibility for complying with the requirements of the Contract Documents.
3-1.3.3 Inspection by the City. The City will provide all inspection and testing laboratory services within 50 miles of its geographical limits. 3-1.4 Test of Materials. Before incorporation into the Work and at no cost to the City, submit samples of materials the City Representative may require and deliver the materials for testing to the place and at the time the City Representative designates.

The City Representative may direct, unless otherwise specified, all initial testing and two additional retests, at no expense to you. The Specifications identify testing you provide and for which you pay.

To allow enough time to perform the tests, notify the City Representative in writing at least twenty (20) Working Days before you intend to use the materials. The notice must name the proposed supplier and the material source.

If you send the notice of intent to use before the materials are available for testing or inspection, or so far in advance that the materials on hand at the time will be replaced by a new lot before it’s used on the Work, re-notify the City Representative when representative samples are available.

The City Representative or a designated representative will make the inspection and testing but if made at any point other than at the point of incorporation in the Work, they do not guarantee acceptance of the materials nor of continued acceptance of materials presumed similar to those inspected and tested.

Test materials according to commonly recognized procedures of technical organizations and any special procedures prescribed in the Contract Documents. Material sampling and testing will occur when, during the process of the Work, the City Representative deems desirable; cooperate in obtaining the samples.

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52 3-1.4.1 Testing Laboratory. Use and pay for the services of an independent testing laboratory, subject to the City’s approval, to perform other testing and inspection services required by the Contract Documents.

Before starting Work, submit the name, address and telephone number of your testing laboratory as well as the names of a full-time registered engineer and a responsible officer.

Using testing laboratories does not relieve you of your obligation to perform the Work according to the Contract Documents.

Laboratory field technicians employed by the City have no authority to release, revoke, alter or enlarge on the requirements of Contract Documents or to approve, accept or stop any portion of the Work.

You must:
i.Cooperate with laboratory personnel, provide access to work and arrange access to manufacturer's operations.
ii.Provide preliminary representative material samples to the laboratory in the required quantities.
iii.Furnish copies of mill test reports.
iv.Provide casual labor and facilities for access to work being tested, obtain and handle samples at the site, facilitate inspections and tests and provide facilities for the laboratory's exclusive use to store and cure test samples.
v.Coordinate testing requests through the City
Representative. Notify the City Representative at least three (3) Working Days before operations to allow for
assignment of personnel and scheduling of tests.
vi.Pay for additional laboratory inspections, sampling and testing required for your convenience and when initial tests indicate that work does not comply with Contract Documents.
vii.When required by the Contract Documents, submit the manufacturer’s certificate, executed by a responsible officer, certifying that the product(s) meet or exceed specified requirements. Provide the certification in duplicate.
3-1.5 Certificate of Compliance. Give an original, wet signed Certificate of Compliance to the City Representative before using any material or assembled material required by the Specifications or the City Representative.

The City Representative may waive Specifications materials testing requirements and accept the manufacturer’s written certificate of compliance that the supplied materials meet those requirements. The City Representative may require inclusion of materials test data with the submittal.

Materials used based on a Certificate of Compliance may be sampled and tested at any time. Submitting a Certificate of Compliance does not relieve you of responsibility for incorporating material into the Work that conforms to the requirements of the Contract Documents. The City Representative may reject any material not conforming to the requirements whether in place or not.

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53 3-1.6 Trade Names or Equals. You may supply any of the materials specified or offer an equivalent. The City Representative will determine whether the material offered is equivalent to that specified. Allow adequate time for the City Representative to make this determination.

A materials list is not intended to be comprehensive or in order of preference. You may offer any material, process or equipment you consider equivalent to that indicated. At your expense, furnish data about items you offer as equivalent to those specified as provided in the Contract Documents.

If the City Representative requires it, test the material to confirm that its quality, strength, physical, chemical or other characteristics including durability, finish, efficiency, dimensions, service and suitability will allow it to fulfill its intended function.

The City Representative must approve the test methods. Report the test results promptly to the City Representative who will evaluate them and determine whether the substitute item is equivalent.

The City Representative’s findings are final. Do not install and use a substitute item until the City Representative approves it.

If your substitute is not found equal to the specified material you must furnish and install the specified material. No circumstances resulting from the provisions of this section affect the Contract completion time.

Submit a products list as follows:

A. Within the time stated in the Specifications, send the City Representative the number of copies you need plus four (4) of a list of major products you propose installing that includes the manufacturer’s name. Arrange the products by specification section number, title and article number.

B. For products specified only by reference standards, give manufacturer, trade name, model or catalog designation and reference standards.

C. The City Representative will reply in a writing that states whether there is a reasonable objection to the listed items. Failure to object to a listed item does not constitute a waiver of Contract Documents requirements.

The following limitations apply to substitutions:

A. The City will only consider requests for substitutions of products during the time specified in the Contract Documents. The City will consider subsequent requests only in the case of product unavailability or other conditions beyond your control.

Material delivery schedules do not justify a substitution.

B. The City will not consider substitutions indicated on shop drawings or product data submittals without a separate formal request, or if requested directly by a subcontractor or supplier or if acceptance will require a substantial revision of the Contract Documents.

C. Do not order or install substitute products without the City Representative’s written acceptance.

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54 D. The City Representative will only consider one request for substitution for each product line. If a substitution is not accepted, provide the specified product.

E. The City Representative will determine the acceptability of substitutions.

Requests for substitutions shall conform to the following:

A. Submit each request for substitution separately and document each request with complete data to substantiate its compliance with requirements of Contract Documents.

B. Identify the product by Specifications section and article numbers. Provide the manufacturer's name and address, trade name or product and model or catalog number, list fabricators and suppliers as appropriate.

C. Include an itemized comparison of the proposed substitution with the specified product, listing variations and referencing Specifications section and article numbers.

D. Provide cost data comparing the proposed substitution with the specified product and the net change to the Contract Price.

E. List the availability of maintenance services and replacement materials.

F. Discuss the substitution’s effect on the construction schedule and any changes required in other work or products.

A request for substitution is your representation that you have investigated the proposed product and have determined it is equal to or superior in all respects to the specified product and that you provide the same warranty for the substitution as for the specified product. Coordinate installing the accepted substitute, making any changes necessary for the Work to be complete in all respects. Certify that the cost data you present is complete and includes all related costs under this Contract and waive claims for additional costs related to the substitution that may later become apparent. Submit the number of copies you need plus four (4) of the request for substitution. For accepted products, submit shop drawings, product data and samples and tests conducted in accordance with 1-6.
3-1.7 Weighing and Metering Equipment. Use only scales and metering equipment inspected for accuracy and certified within the past 12 months by the State of California Bureau of Weights and Measures, by the County Director or Sealer of Weights and Measures, or by a scale mechanic registered with or licensed by the county for proportioning materials.

The accuracy of a scale, except as stated here, must meet the standards of the Business and Professions Code and the Code of Regulations pertaining to weighing devices. Give the City Representative a Certificate of Compliance for approval prior to operation. Renew the Certificate of Compliance whenever the City Representative requires, at no cost to the City.

Arrange scales, whose figures must be clearly legible, for easy reading from the operator’s platform or area. The scales must indicate the true net weight without applying any factor. Scales must be accurate to within one (1) percent when tested with the plant shut down. Weighing equipment must be insulated against vibration or movement by other operating equipment in the plant area so that the weight error with the entire plant running does not exceed two (2) percent for any setting or one and one half (1.5) percent for any batch.

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55 3-1.8 Calibration of Testing Equipment. Testing equipment including, but not limited to, pressure gauges, metering devices, hydraulic systems, force (load) measuring instruments and strain-measuring devices must be calibrated by a testing method acceptable to the City Representative at intervals not exceeding 12 months and after the equipment has been repaired, modified or relocated. Provide calibration certificates when the City Representative requests them.
3-1.9 City-Furnished Materials. City-furnished materials listed in the Specifications are available to you free of charge.

Give the City Representative a written request for City-furnished material at least fifteen (15) Working Days before the date you intend to use it, which includes the quantity and type of each material.

The Specifications designate locations where City-furnished materials will be available to you free of charge. Haul those materials to the Work site at your expense, including any loading and unloading that may be involved. If the Specifications do not designate locations, the City will furnish the materials to you free of charge at the Work site. In either case, all handling and placing costs of City-furnished material are included in the price for the contract item involved.

You are responsible for City-furnished materials given to you and must pay all demurrage and storage charges. Once you take possession of City-furnished materials, replace at your cost any that are lost or damaged from any cause. You are liable to the City for the cost of replacing City-furnished materials and the City may deduct those costs from any monies due or that become due to you. All City-furnished materials not used on the Work, remains the City’s property and you must arrange with the City Representative to return it to the City at your expense.

ARTICLE 4 – UTILITIES
4-1 GENERAL. For purposes of this Article 4, definitions of the terms referenced below are as follows:

An “unidentified” underground main or trunk line utility is one not indicated at all on the Plans; a “misidentified” underground main or trunk line utility is one not indicated on the Plans with reasonable accuracy (a “misidentification”). An underground main or trunk line utility is one indicated on the Plans with reasonable accuracy unless its actual location is substantially and materially different from that indicated on the Plans.

The term “rearrangement” of utilities means relocating, altering, reinstalling and reconstructing utilities, including removing existing related utilities there, necessary to accommodate the Work. Whenever in this Article 4, one or more of these rearrangement activities is referenced, the reference includes all other activities required to accommodate the Work.

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56 4-2 LOCATION.
4-2.1 General. The Plans or the Specifications include known utilities and their respective owners. Where the Plans show underground utilities, assume every property parcel will be served by a service connection for each type of utility.

Pursuant to Government Code § 4216, contact the appropriate regional notification center (Underground Service Alert of Southern California [USA] at 1-800-422-4133) for an inquiry identification number at least two (2) but not more than fourteen (14) Working Days before beginning any excavation required for the Work. Caltrans and some other agencies are not required to be a member of a regional notification center. Contact nonmember agencies directly and ask them to locate and mark their subsurface installations. Pursuant to Government Code § 4216.2., coordinate any proposed excavation within ten (10) feet of a high priority subsurface installation with the operator.

Before starting the Work, physically locate subsurface installations within 24 inches of any side of excavations required for the Work. Determine the horizontal and vertical location, alignment, depth, material type and size of each subsurface installation.

Excavate according to Government Code § 4216.4, and provide the subsurface installation location data to the City Representative within the time stated in the Specifications.

Notify the City Representative in writing immediately after identifying potential physical conflicts between existing subsurface installations and the Work. Include in the written notification:

A. Location date;
B. Location method;
C. Type, size, and material of subsurface installation; D. Horizontal location;
E. Elevation (or depth from existing pavement or ground surface) of the top and bottom of the subsurface installation; and
F. Presumed owner.

Complete excavation, backfill and placement of temporary resurfacing on the same day.

Place permanent resurfacing within five (5) Working Days unless otherwise required by the Specifications or directed by the City Representative.

A list of utility companies with facilities located in or near the construction area is in the Specifications. The City Representative tried to determine exiting utility substructures at the Work site by reviewing the records of owners of known utilities in the area and consulting with them, and used their information to show on the Plans their utility substructures (except for service connections) that may affect the Work.

Utility information provided on the Plans and in the Specifications has not been verified and may not be accurate or complete. Except as expressly provided in this Article 4, do not rely on the utility information. The City assumes no responsibility for its accuracy or completeness. Changed conditions within the scope of 2-4 do not include utilities.

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57 Determine the exact location, both horizontal and vertical, type and size of all existing utilities including service connections, before beginning work that could damage the utilities or otherwise affect or be affected by the utilities or interfere with their service.

Where the Plans show underground main distribution conduits like water, gas, sewer, electric power, telephone or cable television, assume that every adjacent property parcel will be served by a service connection for each type of utility shown. Investigate, research, survey and pothole as you believe necessary to make the determinations and immediately notify the City Representative of any utility discovered in a different location than indicated on the Plans or not indicated on the Plans at all.

Your cost to locate any unidentified or misidentified underground main or trunk line utility, will be paid for as an addition to the Work, according to Article 2. You are not entitled to this additional compensation if the existence and location of the utility, with reasonable accuracy, was or should have been known to you on the date Bids were due or could have been inferred at that time from the presence of visible facilities such as buildings, meters, junction boxes or identifying markers. The cost to locate all other utilities is included in prices in the Bid for other items of the Work.

Information about underground and internal utilities and appurtenances you are required to record in the Record Documents as specified in 6-14 must include, but not be limited to, the accurate location of underground utilities determined pursuant to 4-2 that remain in place as well as utilities either you or the utility owners rearrange.

Ask the City of Fountain Valley Public Works Department Engineering Division at 714- 593-4433, to locate any existing traffic signal conductors and interconnect within the construction area before performing Work that may affect, or be affected, by the existing facilities.

Except as expressly provided in this Article 4 regarding unidentified or misidentified underground main or trunk line utilities, a utility company’s failure to accurately mark its facilities does not justify a time extension or additional compensation from the City.

Obtain photographs of all markings made by your forces as well as all USA markings and submit to the City Representative within two (2) Working days. All photographs must show the markings in relation to one or more identifiable landmarks that will remain in place after completion of the Work and of any utility removal and rearrangement work in the vicinity.

Governmental agencies and utility owners reserve the right to enter at any time, any street, alley, right of way or easement to maintain and repair their property. 4-2.2 Payment. Include payment for your cost to locate utilities in the various items of work; the City will not pay additional compensation for this cost. 4-3 PROTECTION. Do not interrupt the service or disturb the support of any utility without authority from the utility owner or direction from the City Representative.

Maintain valves, switches, vaults and meters as readily accessible for emergency shutoff.

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58 Unless otherwise provided on the Plans or in the Specifications, furnish and place necessary protection and support where required to ensure support of utilities potentially impacted by the Work.

The City will pay any additional cost you incur to protect and support an unidentified underground main or trunk line utility or from misidentifying an underground main or trunk line as an addition to the Work according to Article 2. You are not entitled to this additional payment if the utility’s existence and location or with reasonable accuracy should have been known to you on the date Bids were due or could otherwise have been inferred at that time from the presence of visible facilities such as buildings, meters, junction boxes or identifying markers. Include the cost to protect and support all other utilities in prices in the Bid for other items of the Work.

Immediately notify the City Representative and the utility owner if any utility is disturbed or damaged during the Work. If the City Representative directs you to, restore, repair or replace the disturbed or damaged utility.

The City will pay your cost to restore, repair or replace any unidentified or misidentified underground main or trunk line utility, that is disturbed or damaged by the Work that does not result from your failure to perform your obligations under the Contract Documents including without limitation, § 4-2, or to exercise reasonable care as an addition to the Work according to Article 2. Except where this paragraph allows additional compensation, either you or the utility owner must restore, repair or replace at your expense, all utilities you disturb or damage in the course of the Work.

To the full extent allowed by law, all obligations listed in 6-3.2 apply, if any claims or liabilities as defined there, are asserted or claimed by any person or entity resulting from any disturbance or damage to utilities your act or omission caused, whether or not the utilities are accurately marked on the Plans or in the field by the utility owner, and whether or not there is concurrent active or passive negligence by the City and City Personnel, but excluding any claims or liabilities arising from the sole active negligence or willful misconduct of City or City Personnel.

When placing concrete around or contiguous to any non-metallic utility installation, you must at your expense:

A. Furnish and install a 2-inch cushion of expansion joint material or other similar resilient material; or
B. Provide a sleeve or other opening which will result in a 2-inch minimum-clear annular space between the concrete and the utility; or
C. Provide other acceptable means to prevent embedment in or bonding to the concrete.

Where concrete is used for backfill or for a structure which would result in embedment or partial embedment of a metallic utility installation, or where the coating, bedding or other cathodic protection system is exposed or damaged by your operations, notify the

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59 City Representative and contact the affected utility owner about how to maintain or restore the integrity of the system, and implement the procedures at your expense. 4-4 REMOVAL. Remove all interfering portions of utilities shown on the Plans as "abandoned" or “to be abandoned in place.” Before starting removal operations, ask the City whether the abandonment is complete, and include the removal and disposal costs in your Bid for the items of work requiring the removals. 4-5 RELOCATION. When feasible, the owners responsible for utilities within the area affected by the Work will complete necessary installations, relocations, repairs, or replacements before you begin the Work. When the Plans or Specifications indicate that others will relocate, alter or construct a utility installation, the City will negotiate with the owners and have the utility work done at no cost to you. Protect relocated utilities in their new position and include the cost to protect in the Bid for the items of work requiring the relocation.

If you find utilities that interfere with the Work after the Contract is awarded, the respective utility owners will rearrange them, or the City Representative may order you to perform the rearrangement as an addition to the Work per Article 2. Alternatively, the City Representative may order changes in the Work to avoid the interference per Article

2. The utility owner must be satisfied with your work on its utility and your work must comply with the Contract Document requirements.

When the Plans or Specifications require you to rearrange a utility as part of the Work, all costs for the work are considered included in the Bid for the items of work requiring it.

If an underground main or trunk line utility you are to rearrange is misidentified in the Plans, then any additional cost you incur for the work as a result, is treated as an addition to the Work according to Article 2 unless its location, with reasonable accuracy, was or should have been known to you on the date Bids were due or could have been inferred then by visible facilities like buildings, meters, junction boxes or identifying markers.

Except as provided in this paragraph, you are not entitled to any additional compensation because of inaccuracies in the Plans regarding utility rearrangements included in the Work.

If you request temporary or permanent utility rearrangement for your convenience, then it is your responsibility to make all arrangements necessary for the work and to bear all related costs. You are not entitled to any additional compensation because of the utilities or work.

The provisions of this paragraph are subject to the provisions of the previous paragraph.

Where the Plans or Specifications require you to rearrange any service connections, this work is included in your Bid for the items of work necessitating the work.

Where necessary, the utility owner will relocate service connections within the limits of the Work or within temporary construction or slope easements. When the City Representative directs, arrange to relocate service connections between the meter and

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60 the property line or between a meter and the limits of temporary construction or slope easements. Payment to relocate the service connections are according to 2-2 or 2-3.

Payment includes restoring all existing improvements that are affected. You and the utility owner may agree to disconnect and reconnect interfering service connections.

The City will not be a party to that agreement.
4-6 DELAYS. The construction schedule developed in accordance with 5-1 allows adequate time for you or the utility owner to protect, remove and rearrange utilities. If the utility owner performs the work, the construction schedule will allow for the time the utility owner requires for it. Notify the City Representative in writing of any subsequent changes in the construction schedule that will affect the time available to protect, remove, or rearrange utilities and get the City Representative's approval of the changes.

You are not entitled to any extensions of the Contract Time or compensation for damages incurred by delays attributable to utilities at the Work site except as provided in 5-6.1, or as provided below. Delays described below are not delays for which the City is responsible within the meaning of 5-6.3.

A. Subject to 5-6.2 and 5-6.4, you are entitled to an extension of the Contract Time for any delay in the Work directly attributable to an unidentified underground main or trunk line utility or the misidentification of an underground main or trunk line utility in the Plans. You are entitled to an extension of the Contract Time for any delay in the Work that is directly attributable to an unidentified underground main or trunk line utility, unless the utility's location, with reasonable accuracy, was, or should have been known to you or could have been inferred from visible facilities like buildings, meters, junction boxes or identifying markers on the date Bids were due. If you are entitled to a time extension, then you are also entitled to compensation for equipment idle time because of the delay, determined by the City Representative the same way determinations are made for equipment used in performing Extra Work according to Article 2. You are not entitled to any other compensation or damages because of the delay.

B. You may be given a time extension, but no additional compensation for unforeseen delays attributable to a utility owner’s failure to complete utility rearrangement work within the time scheduled for the work in the construction schedule, or to complete utility rearrangement work that the Contract Documents indicate will be completed before your construction operations begin.

You are not entitled to a time extension nor additional compensation for delays or losses described here that:

A. Result from your actions or omissions or which could have been avoided by any reasonable means, like the judicious handling of forces, equipment or plant; or B. Arise in connection with utilities rearranged for your convenience. The City Representative will determine what damages you could have avoided.

Immediately notify the City Representative of any delays to your operations described here. Delays described here are not right of way delays described within the scope of 1-9.
4-7 CONTRACTOR RESPONSIBILITIES. You must:

A. Cooperate with and provide Work site access to utility personnel.

B. Coordinate Contract Work with affected utilities. Remove all USA markings after

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61 completing the work requiring them before the City accepts and approves the Work C. . Asphalt concrete pavement not overlaid or slurry sealed as part of the project bid items that is damaged by trenching, potholing or otherwise, must be slurry sealed after the pavement section is repaired. “Perpendicular” street cuts must be slurry sealed ten (10) feet each side of the cut and “longitudinal” cuts must be slurry sealed from pavement lane to pavement lane line for the entire damaged area or as directed by the City Representative. Type II slurry must be used on non-arterial streets and on arterial streets. Replace damaged traffic striping, legends and markers. Avoid “patchwork” application of slurry by joining closely grouped areas of slurry applications. Compensation for this requirement is included in the prices paid for related items of work and no additional compensation is allowed. 4-8 PERMANENT UTILITIES. Contact and coordinate with utility owners all requirements for installing and connecting permanent utilities necessary for the Work including but not limited to, natural gas, electricity, water, sewer and telephone. Include all costs for this work, as well as costs to operate permanent utilities before the City accepts the Work, in Bid prices for the related items of work.

ARTICLE 5 – PROSECUTION, PROGRESS AND ACCEPTANCE OF THE WORK 5-1 CONSTRUCTION SCHEDULE AND COMMENCEMENT OF WORK. Begin the Work on the date in the Notice to Proceed and diligently complete it in the time provided in the Contract.

Notify the City Representative of your intent to begin work at least two (2) Working Days before starting any work.

Give the City Representative, within ten (10) days after executing the Contract, a construction progress schedule using the critical path method that shows the proposed dates for beginning and completing each line item of the Work and the amount you anticipate each monthly payment will be due to you based on the progress schedule. 5-1.1 Preparation.

As part of the Proposal for each Work Order, the Contractor shall submit a preliminary schedule. The Contractor shall prepare and submit a Final Construction Schedule for the Work, both in hard copy and electronically, for the City’s approval upon the City’s acceptance of the Detailed Scope of Work and Work Order Proposal for each Work Order under the EZIQC Program. The Construction Schedule shall in all respects conform to and be consistent with the time requirements set forth in each Work Order.

Begin the Work on the date in the Notice to Proceed and diligently complete it in the time provided in the Work Order.

Notify the City Representative of your intent to begin work at least two (2) Working Days before starting any work.

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62 Give the City Representative, within ten (10) days after executing the Contract, a construction progress schedule using the critical path method that shows the proposed dates for beginning and completing each item of the Work and the amount you anticipate each monthly payment will be due to you based on the progress schedule.

Activities shown in the Construction Schedule shall be in sufficient detail to demonstrate a practical plan to complete the design, engineering, fabrication and construction within the Contract Time and shall, at a minimum, include the following:

Format of the schedule is as follows:

A. Prepare schedules as horizontal bar charts with a separate bar for each portion of work or operation according to the approved schedule of values that identifies the first workday of each week. Allow space to update.

B. Sequence of Listings: Chronological order at the start of each item of work.

C. Sheet Size: Multiple of 11x17 inches.

D. Provide a two week look-ahead schedule updated weekly.

In addition, Contractor shall regularly prepare and submit to the City short term, three (3) week “look-ahead” schedules generated from the Construction Schedule approved by City. Except to the extent permitted by Contract Adjustment to the Contract Time and approved by City in a duly executed Supplemental Work Order and associated City Request for Change, in no event shall the Contractor’s updates or “look ahead” schedules alter the dates for Substantial Completion or Final Completion set forth in the Construction Schedule approved by City.

Content of the schedules must:

A. Show the complete sequence of construction by activity, with dates for beginning and completing each construction element. Include any special sequencing specified in the Contract Documents.

B. Show lane closure notifications and dates.

C. Provide sub-schedules to define major and significant portions of the entire schedule.

D. Show the accumulated completion percent for each item and the total percent of Work completed as of first day of each month.

E. Provide a separate schedule showing dates for product procurement and delivery, shop drawing submittals and equipment installation as well as decision dates for finish selection, if applicable.

F. Show delivery dates for City-furnished products, if applicable.

G. Show the critical path.

Revisions to schedules must:

A. Indicate the progress of each activity to the submittal date and the projected completion date of each activity.

B. Identify activities modified since the previous submittal, major changes in scope and other identifiable changes.

C. Provide a written report describing any problem areas, anticipated delays and their impact(s) on the schedule and include the corrective action(s) taken or proposed and its/their effect(s).

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63 D. Revise periodically as the City Representative directs. Failing to comply with a City Representative’s directive is grounds for delaying the progress payment.

E. Show the revised critical path.

Required submittals:

A. Submit initial schedules within ten (10) days of executing the Contract. If requested, resubmit required revisions within seven (7) days of the request.

B. Submit an update schedule on or before the first day of each month beginning one month after the initial schedule as outlined in A, above. If requested, resubmit required revisions within seven (7) days of the request.

C. Submit four (4) copies of schedules to the City Representative.

D. Submit with a transmittal letter.

In addition:

A. Distribute copies of current schedules to the job site file, subcontractors, suppliers and other concerned parties.

B. Instruct recipients to report promptly, in writing, problems they anticipate will result from schedule projections.

Include the cost to conform to these requirements in the various items of work at no additional compensation.
5-2 PROSECUTION OF THE WORK. Diligently perform the Work to completion. If the City Representative determines you are not timely with performing the Work you must, upon the City Representative’s order, immediately take steps to remedy the situation.

Include all costs to perform the Work as specified in the Contract Price. If you fail to take the necessary steps to comply fully with the City Representative’s orders, the City Representative may suspend the Work completely or in part, until you do. If Work issuspended through no fault of the City, then you are responsible for all expenses and losses you incur during the suspension. If you do not properly provide for public safety, traffic and protection of the Work during periods of suspension, the City may elect to do so and deduct its costs from monies due you. These actions do not relieve you of liability.
5-2.1 Time of Completion and Forfeiture Due to Delay. Complete the Work called for under the Contract within the time set forth in the Contract Documents.

You agree, according to Government Code § 53069.85, to forfeit the per day amount required by the Contract for each day of delay. The City will deduct that amount from any payments due or that become due to you.

The City has endeavored to identify all areas of the site which may contain hazardous waste as defined by Health and Safety Code § 25117, and unless otherwise noted, hazardous waste in these areas has been mitigated. However, the parties acknowledge the possibility that additional hazardous waste exists not previously identified. If, during the course of your work, you encounter hazardous waste, promptly notify the City through its Environmental Services Administrator. If the material is “hazardous waste” pursuant to Health and Safety Code § 25117, the City may have you perform the mitigation work or may have it done under a separate contract. If you perform the mitigation work, the City will pay its cost as an addition to the work according to Article 2.

To the maximum extent permitted by law, the City is not liable for any damages other than for an appropriate

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64 time extension for delays caused by the hazardous waste conditions contemplated here.

The City will not penalize you for delays in completing the work due to unforeseeable causes that are beyond your control, and without your fault or negligence, including but not limited to acts of nature or of the public enemy, acts of the government, acts of the City, acts of another contractor in performing a contract with the City, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and unusually severe weather. These delays, except for acts of the City, do not entitle you to additional compensation. Your sole remedy is a time extension granted according to this section.

Within five (5) Calendar Days from the beginning of the delay, notify the City Representative in writing of the cause of the delay. The City Representative will establish the facts and the extent of the delay(s) and extend the time to complete the Work if, in his/her judgment, the findings of fact justify an extension. The City Representative’s findings are final.
5-2.2 Order of Work Requirements. When required by the Specifications or the Plans, follow the sequence of operations and restrictions required there.

Perform the Work to conform to the construction staging in the Specifications. Subject to the Engineer’s approval, non-conflicting work in subsequent stages may proceed concurrently with work in preceding stages if you maintain satisfactory progress in the preceding stages. The Engineer’s approval of any modifications you request to the order of work or staging of the work are not grounds for a Change Order request or a time extension request. If you deviate from the specified order of work or the staging plans, you do so at your own risk and assume all time impacts and cost associated with them.
5-3 SUSPENSION OF THE WORK.
5-3.1 General. The City Representative may suspend the Work in whole or in part for any time the City Representative finds in the City’s best interest, for its convenience or due to your failure to carry out orders given or to perform any provision of the Contract.

Immediately comply with the City Representative’s written order to suspend the Work completely or in part and resume work only when the City Representative orders or approves so in writing.

The City is not liable for these suspensions except as specified in 5-6.3., which provides that delays resulting from suspensions the City Representative ordered because you failed to carry out orders given or to perform any provision of the Contract are not delays for which the City is responsible.

If the City Representative orders a work suspension as provided here, do at your expense, all the work necessary to provide a safe, smooth unobstructed passageway through construction for the public during the suspension period as provided in 6-9 and as stated in the Specifications. If you do not perform the work specified above, the City will perform the work and, if the suspension is due to your failure to carry out orders

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65 given or to perform any provision of the Contract, the City will deduct the cost from monies due or that become due to you.

If the City Representative orders a work suspension according to this section, the days on which the suspension order is in effect are Working Days if those days are Working Ways within the meaning of the definition in 5-7.2.

Suspending the Work does not relieve you of your responsibilities in the Contract Documents.

You may resume the Work after you provide:

A. A revised schedule showing each task yet to be accomplished and the timeline to perform each one to completion
B. Work force projections attached to each task listed by workweek C. Cost expenditures attached to each task summarized by workweek D. Lien releases from each subcontractor, supplier and vendor from whom you requested materials, equipment or any other service acknowledging the payments received
E. An Income and Expense Statement projecting how you will finance the rest of the project
5-3.2 Archaeological and Paleontological Discoveries. If you discover items of archaeological or paleontological interest, immediately stop excavation in the area and do not continue until ordered to do so by the City Representative. When resumed, excavation operations within the area of discovery are at the City Representative’s direction.

Discoveries that you may encounter include, but are not be limited to, dwelling sites, stone implements or other artifacts, animal bones, human bones and fossils.

You are entitled to an extension of time and compensation in accordance with 5-6. 5-4 TERMINATION OF THE CONTRACT FOR DEFAULT.
5-4.1 General. If, before the Work is accepted, you:

A. Become insolvent, assign your assets for the benefit of your creditors, are unable to pay your debts as they become due or are otherwise financially unable to complete the Work;
B. Abandon the work by failing to report to the work site and diligently performing the Work to completion;
C. Disregard written instructions from the City Representative or materially violate provisions of the Contract Documents;
D. Fail to perform the Work according to the schedule approved by the City Representative;
E. Disregard laws or regulations of any public body having jurisdiction or commit continuous or repeated violation of regulatory or statutory safety requirements, the City will consider you in default of the Contract.

Transmit notices and other written communications regarding default between you, the City and the surety according to 1-13.

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66 In the event the City terminates this Contract for grounds later determined not to justify a termination for breach, the termination becomes a Termination of the Contract for Convenience pursuant to 5-5.
5-4.2 Notice to Cure. The City will issue a written notice to cure the default to you and to your surety. Begin satisfactory corrective actions within five (5) Working Days after receiving the notice.
5-4.3 Notice of Termination for Default. If you fail to begin satisfactory corrective action within five (5) Working Days after receiving the notice to cure or to diligently continue satisfactory and timely correction of the default, then the City will find you in default of the Contract and the City:

A. Will terminate your right to perform under the Contract by issuing a written notice of termination for default to you and to your Surety;
B. May use any materials, equipment, tools or other facilities you furnished to secure and maintain the Work site; and
C. May furnish labor, equipment and materials the City finds necessary to secure and maintain the Work site.

The provisions of this subsection are in addition to all other legal rights and remedies available to the City.
5-4.4 Surety Responsibilities. When receiving written notice of termination for default, the surety must immediately assume all your rights, obligations and liabilities under the Contract. If the surety fails to protect and maintain the Work site, the City may do so and may recover all costs incurred. The Surety must notify the City that it is assuming all your rights, obligations and liabilities under the Contract. The City will pay all money that is due, or would become due to you, to the Surety as the Work progresses, subject to the terms of the Contact.

Within 15 Working Days of receiving the written notice of termination for default, the Surety must give the City a written plan detailing the course of action it intends to take to remedy the default. The City will review the plan and notify the Surety if the plan is satisfactory. If the Surety does not submit a satisfactory plan, or if the Surety fails to maintain progress according to the plan the City accepts, the City may exclude, with 48 hours written notice, the Surety from the premises, take possession of all material and equipment and complete the Work in any way the City decides is appropriate. The City will charge its cost to complete the Work against the Surety and may deduct any monies due, or which would become due, the Surety. If the amounts due under the Contract are insufficient for completion, the Surety must pay the City, within 30 days after the City submits an invoice, all costs in excess of the remaining Contract Price. 5-4.5 Payment. The City will pay the Surety to complete the Work according to 8-3 minus the value of damages your acts and/or omissions caused the City. 5-5 TERMINATION OF THE CONTRACT FOR CONVENIENCE. The City reserves the right to terminate the Contract at any time if the City Representative determines termination is in the City’s best interest.

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67 If the City elects to terminate the Contract, the following govern the termination and your total compensation:

A. The City Representative will issue a signed written notice, terminating the Contract. Upon termination, you are relieved of further responsibility for damage to the Work excluding materials as specified in 3-1.2, 6-14 of the Specifications and, except as otherwise directed in writing by the City Representative, you must:

1. Stop all work under the Contract except any you are specifically directed to complete;

2. Perform work the City Representative believes necessary to secure the project for termination;

3. Remove equipment and plant from the Work site;

4. Protect materials from damage;

5. Notify all subcontractors and suppliers that the Contract is terminated and that their contracts or orders are not to be performed unless the City Representative authorizes it in writing.

6. Provide the City Representative an inventory of all materials previously produced, purchased or ordered from suppliers for use in the Work and not yet used in the Work including their storage location and other information the City Representative may request.

7. Dispose of materials not yet used in the Work as directed by the City Representative. Provide the City good title to all materials the City purchased, including materials partially paid for as provided in 8-3.2, and with bills of sale or other documents of title for those materials.

8. Subject to the City Representative’s prior written approval, settle all outstanding liabilities and all claims arising out of subcontracts or orders for terminated materials.

To the extent directed by the City Representative, assign all your right, title and interest under subcontracts or orders for materials terminated to the City.

9. Give the City Representative documentation you are required to furnish under the Contract including, on projects where federal funds are involved, all documentation required under the federal requirements in the Contract.

10.Take other actions directed by the City Representative.

B. Accepting the Contract as specified here does not relieve you of responsibility for damage to materials. You remain responsible for damage to materials after the Notice of Termination is issued, except as follows:

1. Your responsibility for damage to materials partially paid for as provided in 9-3.2 and for materials the City furnished for but not used in the Work ends when the City Representative certifies that those materials are stored in the manner and at the locations the City Representative has directed.

2. Your responsibility for damage to materials the City purchased after receiving the Notice of Termination ends when the City has taken title and delivery of the materials.

When the City Representative determines that you have completed the Work under the Contract you were directed to complete before termination and any other work that may have been ordered to secure the project for termination, the City Representative will formally accept the Contract and immediately after the City Representative’s acceptance, you are not required to perform any further work.

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68 C. Terminating the Contract does not relieve the surety of its obligation for any just claims arising out of the work performed.

D. Where the City terminates the Contract for its convenience and was not your fault, the City Representative determines your total compensation based on the following:

1. The reasonable cost to you, without profit, for all work performed under the Contract including mobilization, demobilization and work done to secure the project for termination. In determining reasonable cost, the City Representative will deduct the cost of materials you keep, amounts realized by the sale of materials and for other appropriate credits against the cost of the Work. When, in the City Representative’s opinion, the cost of a Contract item of work is excessively high due to costs incurred to remedy or replace defective or rejected work, the reasonable cost allowed will be the estimated reasonable cost of performing the work in compliance with the requirements of the Plans and Specifications. The City will not allow the excessive actual cost.

2. Your reasonable allowance for profit on the cost of work performed as determined under part 1, above, if you establish to the City Representative’s satisfaction that it is reasonably probable you would have made a profit had the Contract been completed. In no event will the profit allowed exceed four (4%) percent of the cost.

3. Your reasonable cost to handle material returned to the vendor, delivered to the City or otherwise disposed of as directed by the City Representative.

4. A reasonable allowance for your administrative costs to determine the amount payable due to termination of the Contract.

All your records and your subcontractors’ records necessary to determine compensation in conformance with provisions in 5-5, must be open to inspection or audit by City representatives at all times after the Notice of Termination is issued and for a period of 3 years following.

After the City accepts the Work, the City Representative may make payments on interim estimates before issuing the final estimate in conformance with the provisions in 8-3.2 and 8-4 when, in the City Representative's opinion, the amount paid, together with all amounts previously paid or allowed, do not result in total compensation exceeding that to which you are entitled. All payments, including payment on the final estimate, are subject to deductions for prior payments and amounts, if any, retained under the provisions of the Contract.

PHYSICALLY INCLUDE THE SPECIFICATIONS IN 5-5 IN ALL SUBCONTRACTS. 5-6 DELAYS AND EXTENSIONS OF TIME.
5-6.1 General. Delays caused by unforeseen events beyond your control entitle you to an extension of the Contract Time as provided here, but you are not entitled to damages or additional payment due to these delays except as specified in 5-6.3. Unforeseen events may include war, government regulations, labor disputes, strikes, fires, floods, adverse weather or elements necessitating work stoppage, inability to obtain materials, labor or equipment, required extra work or other specific events as further described in the Specifications.

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69 The City will not grant you an extension of time for a delay because you are not able to obtain materials unless you give the City Representative documentary proof. Provide the proof in a timely manner in accordance with the sequence of your operations and the approved construction schedule.

If events beyond your control cause delays other than those mentioned above, the City Representative may decide an extension of time is in the best interests of the City. You are not entitled to damages or additional payment due to these delays except as otherwise specified in 5-6.3.

If the cause of delays beyond your control is due solely to the City’s action or inaction, the delays will entitle you to an extension of time per 5-6.2. 5-6.2 Extension of Time. The City may, from time-to-time, extend the time fixed to complete the Work. All applications for time extensions must be in writing and filed with the City before the original time fixed in the Contract expires or is as previously extended.

The City may extend the time after the time originally fixed in the Contract expires or as subsequently extended, and the extension granted begins on the expiration date. No time extension releases the sureties on any bond required under the Contract or affects forfeitures due to delay.

The City will not grant time extensions for delays not on the critical path. 5-6.3 Payment for Delays. Pursuant to § 7102 of the Public Contract Code, the City will compensate you for damages incurred due to delays for which the City is responsible.

The City Representative will determine the actual costs. The City is not liable for damages you could have avoided by any reasonable means, such as judicious handling of forces, equipment, or plant. The City Representative will determine damages you could have avoided.
5-6.4 Written Notice and Report. If you desire payment for a delay specified in 5-6.3 or an extension of time, file a written request and report of cause with the City Representative within ten (10) Calendar Days after the delay begins. Make your request for payment or extension at least ten (10) Calendar Days before the specified completion date. If you fail to file these items within the times specified, the City may refuse your request.
5-7 TIME OF COMPLETION.
5-7.1 General. Complete the Work within the time specified in the Contract or the Specifications. Complete each portion of the Work within the time specified in the Contract or the Specifications for that portion. Unless otherwise specified in the Contract or the Specifications, express the Contract Time of completion in Working Days. 5-7.2 Working Day. A Working Day is any day within the period between the date the Contract Time as specified in 5-1 starts, and the date the City Representative accepts the Work, other than:

A. Saturday
B. Sunday
C. Any day the City designates a holiday

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70 D. Any other day designated as a holiday in a Master Labor Agreement you enter into or that was entered into on your behalf as an eligible member of a contractor association,
E. Any day you are prevented for cause from working at the beginning of the workday as specified in 5-6.1, or
F. Any day you are prevented, for cause, from working during the first 5 hours with at least 60 percent of the normal work force as specified in 5-6.1. 5-7.3 Contract Time Accounting. The City Representative will make a daily determination of each Working Day that is to be charged against the Contract Time and will discuss this determination with you. You will get a Weekly Statement of Working Days showing the allowable number of Working Days of Contract time, as adjusted, at the beginning of the reporting period. The statement will also indicate the number of Working Days charged during the reporting period and the number of Contract Working Days remaining. If you do not agree with the statement, file a written protest within fifteen (15) days after receiving it that sets out the facts of the protest. Otherwise, the City assumes you accept the statement as is.
5-8 COMPLETION, ACCEPTANCE, AND WARRANTY.
5-8.1 Completion. When you consider the Work, or a designated portion of the Work, if specified in the Contract Documents is complete, submit a written request for inspection to the City Representative. By submitting the request, you certify that:

A. You have reviewed the Contract Documents.

B. Work is complete according to Contract Documents and is ready for inspection.

C. Equipment and systems have been tested, adjusted/balanced and are fully operational.

Submit your request a minimum of five (5) Working Days before the requested inspection date. Allow sufficient time during the Contract to complete inspections and make any corrections. Each day beyond the time prescribed to complete the Contract is subject to assessment of liquidated damages according to 5-9.

If the City Representative's inspection finds the Work is not complete, the City Representative will notify you in a writing that lists the deficiencies observed. Remedy the listed deficiencies immediately and send a request for final inspection. If you do not remedy the deficiencies, the City may order, at its option, re-inspection(s) of the work to identify any additional deficiencies. The City’s costs for the re-inspection(s) are subject to 5-8.2.

When the City confirms the Work is complete and Final Closeout Agreement and Release of All Claims as referred to in 5-8.3 provided, the City Representative will notify you of the date of completion on the Notice of Completion. 5-8.2 Acceptance. Acceptance occurs after all the requirements in the Contract Documents are met. If, in the City Representative’s judgment, you have fully performed the Contract, the City Representative will recommend accepting your performance of the Contract.

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71 5-8.3 Warranty. Warrant the Work against defective materials and workmanship for a period of one (1) year. The warranty period starts on the date the City Representative determines the Work is complete.

The warranty period for specific items covered under manufacturers' or suppliers’ warranties begins on the date the items are put into service at the direction of or as approved by the City Representative in writing.

Assign to the City in writing, warranties, express or implied, from subcontractors, manufacturers or suppliers of any tier, for the materials furnished and work performed.

Deliver the warranties to the City Representative before your performance of the Contract is accepted.

After notice from the City Representative and within the time specified in the notice, replace or repair defective materials and workmanship to the City Representative’s satisfaction. If you do not make the replacement or repairs within the time specified, the City may perform the work at your expense. If you do not reimburse the City for its actual costs, your surety is liable for them.
5-8.4 Re-inspections. If completion of the Work requires re-inspection(s) by the City because you did not make corrections after the initial inspection, the City may deduct the cost(s) for re-inspection(s) from your final payment. If the City Representative observes more than ten (10) deficiencies, re-inspection is required.

Inspections initiated at the City’s request are not subject to provisions of this Section. 5-8.5 Closeout Submittals.

Submit:

A. Project Record Documents clearly marked with all changes to the Plans within thirty (30) Calendar Days of Final Acceptance
B. Operation and Maintenance Data
C. Warranties and Bonds
D. Spare Parts and Maintenance Materials, as specified
E. Evidence of Payment and Release of Stop Payment Notices F. Other data and materials the Contract Documents may require 5-9 LIQUIDATED DAMAGES. Liquidated damages are as specified in the Contract. 5-10 USE OF IMPROVEMENT DURING CONSTRUCTION. The City reserves the right to take over and use all or a part of any completed facility or appurtenance. It will notify you in writing before taking this action. The City’s action relieves you of responsibility for injury or damage to the completed portions of the improvement(s) resulting from the public’s use, or from the action of the elements, or from any other cause except your operations or negligence. You need not re-clean portions of the improvement before field acceptance except for cleanup necessary by your operations. Nothing in this subsection relieves you from full responsibility for correcting defective work or materials.

If the City takes over and uses all or part of a completed facility or appurtenance, it assumes responsibility and liability for injury to persons or property caused by the use,

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72 except for any injury to persons or property caused by any willful or negligent act or omission by you, your subcontractor, their officers, employees, or agents.

ARTICLE 6 – RESPONSIBILITIES OF THE CONTRACTOR
6-1 CONTRACTOR’S EQUIPMENT AND FACILITIES.
6-1.1 General. Furnish and maintain in good condition all equipment and facilities required to properly execute and inspect the Work. Provide and maintain enclosed toilets for employees doing the Work to use. Regularly pump out and maintain these accommodations in a neat and sanitary condition.

Render your machinery and equipment inoperable at all times except during construction. You are responsible for construction means, controls, techniques, sequences, procedures and construction safety.
6-1.1.1 Equipment. Stencil or stamp at a clearly visible location on each piece of equipment an identifying number, except hand tools, and:

A. On compacting equipment, its make, model number and empty gross weight that is either the manufacturer's rated weight or the scale weight.

B. On meters and on the load-receiving element and indicators of each scale, the make, model, serial number and manufacturer's rated capacity.

Give the City Representative a list describing each piece of equipment and its identifying number before beginning the Work.

Upon request, submit manufacturer's information that designates portable vehicle scale capacities.

Your measuring devices must be tested and approved under California Test 109 in the City's presence or by any of the following:

A. County Sealer of Weights and Measures
B. Certified Scale Service City
C. Division of Measurement Standards Official

6.2 LABOR.
6-2.1 General. You, your agents and employees, are bound by, and must comply with applicable provisions of the Labor Code and federal, state, and local labor laws.

Immediately remove and do not reemploy on the Work, any worker the City Representative finds to be incompetent, intemperate, troublesome, disorderly or otherwise objectionable, or who fails to perform the Work properly and acceptably. 6-2.2 Prevailing Wages. Pursuant to §1773.2 of the Labor Code, the current prevailing rate of per diem wages at the time of the Bid as determined by the Director of the Department of Industrial Relations are on file at the office of the City Representative.

Post a copy of these rates at the Work site. Pursuant to §1774 of the Labor Code, you and any subcontractors must pay not less than the specified prevailing rates of wages to workers employed under the Contract. On a federally funded Contract, you and any subcontractors must not pay less than the higher of these rates or the rates determined by the United States Department of Labor. Pursuant to §1775 of the Labor Code, you

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73 and any subcontractors forfeit, as a penalty to the City, the prescribed amounts per calendar day, or portion of it, for each worker paid less than the prevailing wage rates. 6-2.3 Payroll Records. Keep certified payroll records pursuant to §1776 of the Labor Code. You and all of your subcontractors must give the City and the Labor Commissioner (Division of Labor Standards Enforcement), certified payroll records every Friday for the work performed during the preceding week until the Notice of Completion is filed and recorded.
6-2.4 Hours of Labor. Pursuant to §1810 of the Labor Code, eight (8) hours of labor constitute a legal day's work. Pursuant to §1813 of the Labor Code, you and any subcontractors forfeit, as a penalty to the City, the prescribed amount per calendar day for each worker required or permitted to work more than eight (8) hours in any one (1) Calendar Day and forty (40) hours in any one (1) Calendar Week without being compensated according to §1815.
6-3 INSURANCE.
6-3.1 General. Provide and maintain insurance naming the City as an insured and additional insured with you regardless of any inconsistent statement in the policy or any subsequent endorsement whether liability is attributable to you or to the City. The insurance provisions do not limit your indemnity obligations contained in the Contract.

Except as specified in 5-10, save, keep and hold harmless the City, their officers, employees and agents from all damages, costs or expenses in law or in equity that arise to a person or property because of or while performing the Work, or which may be caused by a negligent act or omission by you, your employees, or your subcontractor.

The City is not liable for any accident, loss or damage to the Work before completion except as specified in 5-10.

With the exception of workers' compensation insurance, an insurance company authorized by the Insurance Commissioner to transact business in the State of California must issue the policies you provide. The insurance company must have a policyholder rating of “A” or higher and a financial class VIII or higher as established by A.M. Best or a higher rating established by Moody’s or Standard & Poor's.

Notify the City according to 1-13 within five (5) days of the date your insurance carrier notifies you of any changes to or cancellation of the policy.

All policies must be endorsed to state that coverage may not be suspended, voided, cancelled, reduced in coverage or in limits, non-renewed or materially changed for any

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74 reason, without thirty (30) days prior written notice from the insurer to the City by U.S. mail or by personal delivery, except for nonpayment of premiums, in which case ten (10) days prior notice must be provided.

In lieu of this endorsement, either:

A. Submit a letter, signed by the insurance agent or broker, certifying that he/she will notify the City if coverage is suspended, voided, cancelled, reduced in coverage or in limits, non-renewed or materially changed for any reason without thirty (30) days prior written notice from the insurer to the City by U.S. mail or by personal delivery, except for nonpayment of premiums, in which case ten (10) days prior notice will be provided; or B. Submit evidence of payment in full of the insurance premium for the life of the policy.

The City project title or description MUST be included in the “Description of Operations” box on the certificate.

Certificate Holder:

City of Fountain Valley
10200 Slater Avenue
Fountain Valley, CA 92708
The cost to defend any claims against the City must not erode or take away from the specified limits of liability.

There will be no separate payment for insurance; include it in the Contract Price.

Without limiting your indemnification obligations, do not begin work until you obtain and maintain, at your sole cost and for the duration of this Contract, insurance coverage as provided below, against all claims for injuries against persons or damages to property that may arise from or in connection with performing the Work by you, your agents, representatives, employees and subcontractors. If you subcontract any portion of the Work in compliance with 1-3 of the Specifications, the contract between you and that subcontractor must require the subcontractor to maintain the same insurance policies you are required to maintain pursuant to 6-3.

Insurance policies are not compliant if they include any limiting provision or endorsement you have not submitted for approval in accordance with 6-3.

Your insurance must be “occurrence” rather than “claims made” insurance except for Professional Liability insurance, which may be for claims made and must apply separately to each insured against whom claim is made or suit is brought, except respecting the limits of the insurer's liability.

The insurance coverage required for General Liability, Automobile Liability and Contractor’s Pollution Liability must contain the following provisions or provide the following by endorsement:

Name as additional insured the City of Fountain Valley, its elected officials, officers, employees, volunteers, boards and representatives, shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Contract.

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75 Additional Insured Endorsements shall not:

A. Be limited to “Ongoing Operations”
B. Exclude “Contractual Liability”
C.Restrict coverage to your “Sole” liability
D.Contain any other exclusion contrary to the Contract
This insurance must be primary and any other insurance, deductible or self-insurance available to the insured added by endorsement must be in excess of and not contribute to this insurance.

Immediately report all claims to your insurance carrier and acknowledge receipt within thirty (30) Calendar Days.

No officer, employee, or agent of the City, the City Representative, the City Representative or their consultants are personally responsible for any liability arising under or because of the Contract.

To the maximum extent permitted by law, hold harmless, indemnify, and defend the City of Fountain Valley, its representatives, and each of its officers, employees, and agents, from and against all actions, suits, claims, demands, judgments, attorney's fees, costs, damages to persons or property, losses, penalties, obligations, expenses or liabilities (here “claims” or “liabilities”), that may be asserted or claimed by any person or entity arising from the willful or negligent acts, errors or omissions of you, your employees, agents, representatives or subcontractors in performing any tasks or services for or on behalf of the City, whether or not there is concurrent active or passive negligence on the part of the City and City Personnel, but excluding claims or liabilities arising from the active negligence or willful misconduct of the City or City Personnel.

Additionally:

A. Defend any action or actions filed in connection with these claims or liabilities and pay all costs and expenses including attorney's fees.

B. Promptly pay any judgment rendered against the City or any City Personnel for these claims or liabilities.

C. Promptly pay the City, if the City and any City Personnel is made a party to an action or proceeding for damages or other claims arising out of or in connection with your negligent performance or failure to perform your work or activities; all costs and expenses the City and City Personnel incurred in the action, and reasonable attorney's fees and expert witness fees. The City may retain money due to you under the Contract as the City considers necessary until disposition of the actions or claims.

You must declare and the City must approve any deductibles or self-insured retentions before the City executes this Contract. Before beginning work, give the City, according to 6-3, written confirmation of the deductible for each insurance coverage required by this Contract or of no deductible.
6-3.2 General Liability Insurance. The policy must insure the City, its officers, employees and agents acting within the scope of their duties on the Work against any claims arising out of or in connection with the Work except as specified in 5-10. This policy must provide coverage for on-going and completed operations. The insurance certificate submitted to the City must state that your insurance is primary and that any other insurance held by the City is non-contributory.

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76 General Liability, including premises, operations and mobile equipment, products and completed operations, broad form property damage including completed operations, explosion, collapse and underground hazards, contractual liability, personal injury, and independent contractors’ liability: with a minimum limit of One Million Dollars ($1,000,000) per occurrence and a minimum limit of Two Million Dollars ($2,000,000) general aggregate, for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability, and Two Million Dollars ($2,000,000) completed operations aggregate.

Procure and submit evidence of insurance for Products-Completed Operations in accordance with 6-3 for at least three (3) years from the time all Work under this Contract is completed.

The policy or policies must be endorsed to provide that the insurer waives all rights of subrogation against the City and its respective elected officials, officers, employees, agents and representatives for losses paid under the terms of the policy or policies and which arise from work performed by the named insured for the City. 6-3.3 Workers’ Compensation Insurance. Pursuant to §3700 of the Labor Code, obtain, pay for and maintain in full force for the duration of the Contract, workers’ compensation insurance. The insurance company must have a policy rating equal to or better than that of the California State Compensation Insurance Fund. The City, its officers, employees and agents, are not responsible for any claims in law or in equity occasioned by your failure to comply with this requirement.

The policy or policies must be endorsed to provide that the insurer waives all rights of subrogation against the City and its respective elected officials, officers, employees

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77 agents and representatives for losses paid under the term of the policy or policies and which arise from work performed by the named insured for the City.

Workers’ Compensation and Employer's Liability Insurance: CONTRACTOR shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000) for CONTRACTOR’s employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, CONTRACTOR shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor’s employees.

CONTRACTOR shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.

If you have no employees requiring you to provide Workers’ Compensation Insurance, certify that to City in writing before the City executes this Contract. The City and City Personnel are not responsible for any claims in law or in equity occasioned by your failure to comply with this section or with the provisions of law relating to Workers’ Compensation.
6-3.4 Auto Liability Insurance. CONTRACTOR shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the CONTRACTOR arising out of or in connection with Work to be performed under this AGREEMENT, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
6-3.5 Contractor’s Pollution Liability.

Environmental Impairment Liability Insurance shall be written on a Contractor’s Pollution Liability form or other form acceptable to CITY providing coverage for liability arising out of sudden, accidental and gradual pollution and remediation. The policy limit shall be no less than $1,000,000 dollars per claim and in the aggregate. All activities contemplated in this AGREEMENT shall be specifically scheduled on the policy as “covered operations.” The policy shall provide coverage for the hauling of waste from the PROJECT site to the final disposal location, including non-owned disposal sites.

Products/completed operations coverage shall extend a minimum of three years after PROJECT completion. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors, the Policy must include work performed “by or on behalf” of the insured. Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage.

Policy shall specifically provide for a duty to defend on the part of the insurer. The CITY, its officials, officers, agents, and employees, shall be included as insureds under the policy.

Before beginning work, give the City the names and locations of disposal facilities for the City’s approval.

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78 6-3.6
Umbrella or excess liability insurance. CONTRACTOR shall obtain and maintain an umbrella or excess liability insurance policy with limits of not less than $4,000,000 that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer’s liability. Such policy or policies shall include the following terms and conditions:
• A drop down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectable in whole or in part for any reason;
• Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; and • Policies shall “follow form” to the underlying primary policies. • Insureds under primary policies shall also be insureds under the umbrella or excess policies.
6-3.7 Builder’s risk insurance. Upon commencement of construction and with approval of CITY, CONTRACTOR shall obtain and maintain builder’s risk insurance as specified below.

The named insureds shall be CONTRACTOR, all Subcontractors (excluding those solely responsible for design Work) of any tier, suppliers, and CITY and its officers, officials, employees,and agents. CONTRACTOR shall not be required to maintain property insurance for any portion of the Project following transfer of control thereof to CITY.

Policy shall be provided for replacement value on an "all risk" basis. There shall be no coinsurance penalty provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, Nonconforming Work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the PROJECT; (4) transit coverage, including ocean marine coverage (unless insured by the supplier), with sub-limits sufficient to insure the full replacement value of any key equipment item; and (5) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site. Such insurance shall be on a form acceptable to CITY to ensure adequacy of terms and sublimits. 6-4 PERMITS AND LICENSES. Except as provided in the Specifications, obtain all permits and licenses, pay all charges and fees and give all notices necessary and incidental to the lawful performance of the Work. Get these permits and licenses in enough time to prevent Work delays. Keep a copy of all permits at the Site. Give the City copies of permits and licenses one (1) Working Day after obtaining them. Comply with all rules and regulations included in the permits. If you do not conform to these rules and regulations, the City may perform work necessary to conform to them and deduct the cost of the work from any monies due or to become due to you.

You and all subcontractors must obtain within five (5) Calendar Days of executing the Contract, a current City of Fountain Valley Business License and maintain it for the term of the Contract.

If the City obtained permits, licenses or other authorizations applicable to the Work, obtain a rider, pay all fees and comply with the provisions of those permits, licenses and other authorizations.

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79 6-5 CONTRACTOR’S REPRESENTATIVE. Prior to commencing services, Contractor workers are required to successfully pass a California Department of Justice and/or Federal Bureau of Investigation (FBI) Live Scan Fingerprinting background check (“Live Scan”) performed by the City of Fountain Valley Police Department. The Contractor shall be responsible for obtaining the Live Scan for its workers prior to performing work and shall bear the cost thereof. The cost of this procedure shall be included in the Work Order for Reimbursable Fees.

The Contractor shall coordinate with the Fountain Valley Police Department for the scheduling of the Live Scan. On the day of the Live Scan, the worker must obtain an application form from the City of Fountain Valley Human Resources Division. Upon completion of the application form, the worker will be directed to the Police Department, where the Live Scan will be performed. The worker must possess a photo ID such as a Driver’s License at the time of the Live Scan. Also at the time of the Live Scan, payment must be made to the Police Department via cash or check made payable to “The City of Fountain Valley.” The cost of the Live Scan varies per individual. Credit cards are accepted. The Police Department will provide the City’s Human Resources Division with the results of the Live Scan. Human Resources staff will then notify the Contractor and City Representative of the results. The cost of this procedure shall be included in the Work Order for Reimbursable Fees.

Before starting the Work, designate in writing a representative with complete authority to act for you. You may designate an alternate representative as well. This authorized representative must be present at the Work site at all times while Work is in progress.

When Work is not in progress and during periods when Work is suspended, make arrangements acceptable to the City Representative for any emergency work that may

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Fountain Valley City CouncilFebruary 20, 2024

Fountain Valley City Council
February 20, 2024