Agenda packet — Garden Grove City Council, July 9, 2024 (part 2 of 2)

RECOMMENDATION

It is recommended that the City Council take the following actions:

1. For the Garden Grove Street Lighting District:
 Conduct the public hearing for the proposed annual levy of assessments;  Receive the report of the City Clerk regarding protests received; and  Assuming there is no majority protest, adopt the Resolution confirming the assessment in the Garden Grove Street Lighting District for FY 2024-25

2. For the Garden Grove Street Lighting District No. 99-1:
 Conduct the public hearing for the proposed annual levy of assessments;  Receive the report of the City Clerk regarding protests received; and  Assuming there is no majority protest, adopt the Resolution confirming the assessment in the Garden Grove Street Lighting District No. 99-1 for FY 2024- 25 3. For the Garden Grove Park Maintenance District:
 Conduct the public hearing for the proposed annual levy of assessments;  Receive the report of the City Clerk regarding protests received; and  Assuming there is no majority protest, adopt the Resolution confirming the assessment in the Garden Grove Park Maintenance District for FY 2024-25

By: Alexa Viramontes, Sr. Administrative Analyst

ATTACHMENTS

1. Public Hearing Resolution - Lighting District

2. Public Hearing Resolution - Lighting District No. 99-1

3. Public Hearing Resolution - Park Maintenance District

173

GARDEN GROVE CITY COUNCIL
RESOLUTION NO. ______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GARDEN GROVE MAKING DETERMINATIONS AND CONFIRMING THE DIAGRAM AND ASSESSMENT FOR 2024- 25 FISCAL YEAR FOR THE CITY OF GARDEN GROVE STREET LIGHTING DISTRICT WHEREAS, the City Council of the City of Garden Grove initiated proceedings to order the installation, maintenance, and servicing of certain public street lighting facilities in the City of Garden Grove Street Lighting District (Resolution No. 9864- 24 for FY 2024-25 under the provisions of the Landscaping and Lighting Act of 1972, being Division 15, Part 2 (Sections 22500 et seq.) of the California Streets and Highways Code;
WHEREAS, at its meeting of June 25, 2024, the City Council considered and approved a report prepared by the City Engineer under and pursuant to the California Streets and Highways Code;
WHEREAS, the report contained an estimate of the costs of improvements, a diagram showing the assessment district and the boundaries and dimensions of the subdivisions of the land within the district, and a proposed assessment of the total amount of the costs and expenses of the improvements in relation to special benefits that parcels receive from the improvements;
WHEREAS, the City Council by Resolution No. 9870-24 fixed July 9, 2024, at 6:30 p.m., or as soon thereafter as practicable, in the Community Meeting Center, 11300 Stanford Avenue, Garden Grove, California, as the time and place for the Public Hearing on the question of the levy of the proposed assessment; WHEREAS, the City Clerk has given notice of the passage of the Resolution of Intention, Resolution No. 9870-24 and of the time and place and purpose of the Public Hearing;
WHEREAS, the City Clerk has filed with the City Council an affidavit setting forth the time and manner of the compliance with the requirements of the California Streets and Highways Code;
WHEREAS, at the time and place stated in the notice, the Public Hearing was opened by the City Council and the report was considered, and all persons appearing and desiring to be heard were heard;
WHEREAS, the City Council has examined the evidence presented at the Public Hearing;
WHEREAS, protests were not made by the owners of more than one-half of the area of the property to be assessed for the improvements proposed; and WHEREAS, any and all protests and objections, written and oral, made or filed in the matter of the report or assessments have been overruled and denied. 174
NOW, THEREFORE, the City Council of the City of Garden Grove does hereby resolve, determine, and order as follows:

SECTION 1. The Public Hearing has been duly held, and notices thereof given as set forth in the recitals of this Resolution, and each and every step in the proceedings has been duly taken. The City Council is satisfied with the correctness of the report, including the assessment and diagram, the proceedings, and all matters relating thereto; and all protests, objections, or appeals have been heard and the same are hereby overruled and denied.

SECTION 2. Based upon its review of the report, and other reports and information presented to it, the City Council hereby finds and determines that: (i) the land within the District will be benefited by the improvements described in the report; (ii) the District includes all of the lands so benefited; (iii) the net amount to be assessed upon the lands within the District for FY 2024-25, in accordance with the report described above, is apportioned by a formula and method that fairly distributes the net amount among all assessable lots or parcels in proportion to the estimated benefits to be received by each such lot or parcel from the improvements; and (iv) no assessment imposed on any parcel exceeds the reasonable cost of the proportional special benefit conferred on that parcel.

SECTION 3. The City Council finds that the assessment is in compliance with the provisions of the Landscaping and Lighting Act of 1972 and Article XIIID of the California Constitution and that the City Council has complied with all laws pertaining to the levy of an annual assessment.

SECTION 4. The City Council hereby confirms the diagram and assessment for the District for FY 2024-25. The adoption of this Resolution constitutes the levy of an assessment against the lots and parcels of land in the District for the Fiscal Year commencing July 1, 2024, and ending June 30, 2025, as set forth in the report.

SECTION 5. The City Council hereby orders the proposed improvements to be made in accordance with the report and these proceedings.

SECTION 6. The City Engineer is hereby authorized to update the report and assessments to the most current available parcel listings as provided by the Orange County Auditor’s Office.

SECTION 7. The City Clerk is hereby directed to file and record the diagram and assessment, or a certified copy thereof, with the Orange County Auditor for collection of the assessment on the tax roll.
175

GARDEN GROVE CITY COUNCIL
RESOLUTION NO. ______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GARDEN GROVE MAKING DETERMINATIONS AND CONFIRMING THE DIAGRAM AND ASSESSMENT FOR 2024- 25 FISCAL YEAR FOR THE CITY OF GARDEN GROVE STREET LIGHTING DISTRICT NO. 99-1
WHEREAS, the City Council of the City of Garden Grove initiated proceedings to order the installation, maintenance, and servicing of certain public street lighting facilities in the City of Garden Grove Street Lighting District No. 99-1 (Resolution No. 9865-24 for FY 2024-25 under the provisions of the Landscaping and Lighting Act of 1972, being Division 15, Part 2 (Sections 22500 et seq.) of the California Streets and Highways Code;
WHEREAS, at its meeting of June 25, 2024, the City Council considered and approved a report prepared by the City Engineer under and pursuant to the California Streets and Highways Code;
WHEREAS, the report contained an estimate of the costs of improvements, a diagram showing the assessment district and the boundaries and dimensions of the subdivisions of the land within the district, and a proposed assessment of the total amount of the costs and expenses of the improvements in relation to special benefits that parcels receive from the improvements;
WHEREAS, the City Council by Resolution No. 9871-24 fixed July 9, 2024, at 6:30 p.m., or as soon thereafter as practicable, in the Community Meeting Center, 11300 Stanford Avenue, Garden Grove, California, as the time and place for the Public Hearing on the question of the levy of the proposed assessment; WHEREAS, the City Clerk has given notice of the passage of the Resolution of Intention, Resolution No. 9871-24 and of the time and place and purpose of the Public Hearing;
WHEREAS, the City Clerk has filed with the City Council an affidavit setting forth the time and manner of the compliance with the requirements of the California Streets and Highways Code;
WHEREAS, at the time and place stated in the notice, the Public Hearing was opened by the City Council and the report was considered, and all persons appearing and desiring to be heard were heard;
WHEREAS, the City Council has examined the evidence presented at the Public Hearing;
WHEREAS, protests were not made by the owners of more than one-half of the area of the property to be assessed for the improvements proposed; and 176
WHEREAS, any and all protests and objections, written and oral, made or filed in the matter of the report or assessments have been overruled and denied.

NOW, THEREFORE, the City Council of the City of Garden Grove does hereby resolve, determine, and order as follows:

SECTION 5. The City Council hereby orders the proposed improvements to be made in accordance with the report and these proceedings.

SECTION 6. The City Engineer is hereby authorized to update the report and assessments to the most current available parcel listings as provided by the Orange County Auditor’s Office.

GARDEN GROVE CITY COUNCIL
RESOLUTION NO. ______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GARDEN GROVE MAKING

DETERMINATIONS FOR THE CITY OF GARDEN GROVE PARK MAINTENANCE DISTRICT AND CONFIRMING THE DIAGRAM AND ASSESSMENT FOR 2024-25

FISCAL YEAR
WHEREAS, the City Council of the City of Garden Grove initiated proceedings to order the maintenance of public parks in the City of Garden Grove (Resolution No. 9866-24 for FY 2024-25 under the provisions of the Landscaping and Lighting Act of 1972, being Division 15, Part 2 (Sections 22500 et seq.) of the California Streets and Highways Code;
WHEREAS, at its meeting of June 25, 2024, the City Council considered and approved a report prepared by the City Engineer under and pursuant to the California Streets and Highways Code;
WHEREAS, the report contained an estimate of the costs of improvements, a diagram showing the assessment district and the boundaries and dimensions of the subdivisions of the land within the district, and a proposed assessment of the total amount of the costs and expenses of the improvements in relation to special benefits that parcels receive from the improvements;
WHEREAS, the City Council by Resolution No. 9875-24 fixed July 9, 2024, at 6:30 p.m., or as soon thereafter as practicable, in the Community Meeting Center, 11300 Stanford Avenue, Garden Grove, California, as the time and place for the Public Hearing on the question of the levy of the proposed assessment; WHEREAS, the City Clerk has given notice of the passage of the Resolution of Intention, Resolution No. 9875-24 and of the time and place and purpose of the Public Hearing;
WHEREAS, the City Clerk has filed with the City Council an affidavit setting forth the time and manner of the compliance with the requirements of the California Streets and Highways Code;
WHEREAS, at the time and place stated in the notice, the Public Hearing was opened by the City Council and the report was considered, and all persons appearing and desiring to be heard were heard;
WHEREAS, the City Council has examined the evidence presented at the Public Hearing;
WHEREAS, protests were not made by the owners of more than one-half of the area of the property to be assessed for the improvements proposed; and WHEREAS, any and all protests and objections, written and oral, made or filed in the matter of the report or assessments have been overruled and denied. 178
NOW, THEREFORE, the City Council of the City of Garden Grove does hereby resolve, determine, and order as follows:

SECTION 5. The City Council hereby orders the proposed improvements to be made in accordance with the report and these proceedings.

SECTION 6. The City Engineer is hereby authorized to update the report and assessments to the most current available parcel listings as provided by the Orange County Auditor’s Office.

INTER-DEPARTMENT MEMORANDUM

To:

Lisa L. Kim From: Ursula Luna-Reynosa
Dept:

City Manager Dept: Economic Development and
Housing
Date: 7/9/2024

Subject: Consideration of an amendment to the Vehicle Rebate Program Participation Agreements with certain dealerships to extend the term for an additional five years. (Action Item)

OBJECTIVE

On May 14, 2019, the City Council approved the Vehicle Rebate Program (the “VRP”) for the following dealerships; Garden Grove Kia, Garden Grove Nissan, Garden Grove Hyundai, Simpson Chevrolet of Garden Grove, Toyota Place, and Volkswagen of Garden Grove (the “Participating Dealerships”). The purpose of this report is to provide information in connection with the City Council’s consideration of a n Amendment to the Vehicle Rebate Program Participation Agreements (the “Agreements”) to extend the term for an additional five-years, and conduct a Public Hearing to consider the Economic Development Subsidy Report pursuant to Government Code Section 53083 (the “Report”).

BACKGROUND

Unlike other goods where the sales tax rate is established by the local rate at the location where the sale takes place, the sales tax rate for vehicle sales is established by the local rate of where the consumer resides. When Measure O was approved by the Garden Grove voters in 2018, an additional 1% sales tax was added to the base Bradley Burns sales tax rate, effectively making the sales tax rate in Garden Grove 8.75%. As such, Garden Grove residents that desire to buy local and purchase their vehicle in Garden Grove pay 1% more in sales tax than they would if they purchase their vehicle in a different city that does not have an additional local sales tax measure. On a vehicle that costs $50,000, a n additional 1% equates to another $500 of sales tax. The VRP was established to mitigate this additional burden by providing a $500 rebate to Garden Grove residents that purchase their vehicle in Garden Grove.

This program continues to be a priority for the City as it aims to prevent sales tax leakage and p romote residents to “buy local” . The Agreements included a five -year term, which expired on or about July 1, 2024. The Participating Dealerships have requested a five (5) year extension resulting in a request for the City Council to consider an amendment to the Agreements to extend the term for an additional five (5) years (the “Amended Agreements”).

All other terms remain the same as follow:
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1. Eligible Participants: Any resident or business of Garden Grove purchasing a new car or truck from a participating dealership is eligible for the $500 rebate.

2. Qualifying Vehicles: The rebate applies to new cars or trucks. Motorcycles, off-road vehicles, watercraft, and fleet vehicles are not eligible.

3. Documentation Requirements: Participating dealers must document the sale or lease of the new vehicle using either the Resident Rebate or Garden Grove Business Rebate Forms.

4. Submission Process: Dealers must submit all Resident Rebate Forms and/or Business Rebate Forms, along with the required documentation, to the City of Garden Grove for reimbursement on a monthly basis. A purchase summary must be completed and attached to the rebate forms.

5. Reimbursement Timeline: The City will provide reimbursement payments to the dealers within 30 days of receiving the required forms and documentation.

6. Eligibility Verification: Dealers that issue rebates to non-Garden Grove residents or non-Garden Grove businesses will not be reimbursed by the City.

7. Proof of Residency: Dealerships must collect and submit all required documentation as proof of residency for qualified Garden Grove residents.

DISCUSSION

The VRP has provided over 2,500 Garden Grove residents with a $500 incentive for new car purchases, averaging 500 rebates per year. According to the Orange County Auto Dealer Association, new vehicle sales to Garden Grove residents only declined by 21%, compared to a forecasted 69.7% decrease without the VRP. (There has been a 68% decrease in resident vehicle lease volume which does not include the $500 rebate).

The City has the ability to implement AB 562 (codified as Government Code Section 53083), a statewide economic development tool for the purpose of allowing local jurisdictions to induce economic development for the creation and maintenance of jobs. The City and the Participating Dealerships are proposing the Amended Agreements to continue the mitigation of the additional 1% sales tax to enable the Participating Dealerships to be competitive and retain jobs. The VRP encourages residents and Garden Grove business to “shop local” thus preventing sales tax leakage to other communities. As part of the City Council’s consideration of the Amended Agreements, AB 562 requires the preparation and dissemination of a Report that includes the following:

1. Information contained in the original economic development subsidy report that was prepared when the VRP was initially established;

2. Net tax revenue accruing to the local agency as a result of the subsidy;

3. Net number of jobs created by the subsidy.
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In 2018, the Participating Dealerships employed 561 team members with an estimated total payroll of $38,160,000. In 2023, the dealerships employed 565 team members, with an estimated total payroll of $56,662,240.

In summary, the VRP has helped retain jobs and generated $1.8 million in total gross revenue with a distribution of over $1.3 million in vehicle rebates to Garden Grove residents and the City collecting $505,000 (See attached AB 562 report)

FINANCIAL IMPACT

It is anticipated the cost of the Amended Agreements for the Participating Dealerships is approximately one million four hundred fifty-seven thousand three hundred thirty-one dollars ($1,457,331) over the proposed extended five (5) year term . It is estimated that two hundred seventy-five thousand dollars ($275,000) will be rebated in fiscal year 2024-25 and therefore has been included in the Amended Fiscal Year 2024-25 budget and future Program funding will be requested through the budget process.

RECOMMENDATION

It is recommended that the City Council:
 Conduct a Public Hearing to consider the five (5) year term extension and the corresponding AB 562 Report; and

 Authorize the City Manager to execute an amendment to the Agreements in a form approved by the City Attorney, including any minor modifications as appropriate, and any other pertinent documents necessary to effectuate and/or implement said amendment.

By: Greg Blodgett, Deputy Director

ATTACHMENT(S)

1. AB 562 Report

182

FIVE-YEAR ECONOMIC DEVELOPMENT SUBSIDY REPORT
PURSUANT TO GOVERNMENT CODE SECTION 53083
ON THE
2019 VEHICLE REBATE PROGRAM

BY AND BETWEEN

THE CITY OF GARDEN GROVE
AND

GARDEN GROVE NEW VEHICLE DEALERSHIPS

The following Five-Year Report has been prepared pursuant to California Government Code Section 53083. Section 53083 requires that for economic development subsidy agreements approved on or after January 1, 2014, the city must hold a public hearing within five years to provide an update on the project. As required, this report reiterates details of the 2019 Vehicle Rebate Program (“Program”) and provides information on subsidy payments to date. As the City Council is considering an extension of the Program, this report also provides new information related to the extension.

This update report considers only the Program. The purpose of this Program is to effectuate economic development in the City of Garden Grove (“City”).

1. The name and address of all corporations or any other business entities, except for sole proprietorships, that are the beneficiary of the economic development subsidy, if applicable.

The Program is with the following new car dealerships in the City of Garden Grove.

i. Garden Grove Kia – 13731 Harbor Boulevard, Garden Grove, CA 92843 ii. Garden Grove Nissan – 9222 Trask Avenue, Garden Grove, CA 92844 iii. Garden Grove Hyundai – 9898 Trask Avenue, Garden Grove CA 92844 iv. Simpson Chevrolet of Garden Grove – 10150 Trask Avenue, Garden Grove, CA 92843 v. Toyota Place – 9670 Trask Avenue, Garden Grove, CA 92844 vi. Volkswagen of Garden Grove – 10800 Trask Avenue, Garden Grove, CA 92843

2. The start and end dates and schedule for the economic development subsidy.

The 2019 Vehicle Rebate Program, approved May 14, 2019, included a five (5) year term commencing on July 1, 2019 and ending on June 30, 2024. If an amendment is approved by the City Council at the July 9, 2024 meeting to extend the term by an additional five (5) years, the end date will be June 30, 2029.

3. A description of the economic development subsidy, including the estimated total amount of the expenditure of public funds by, or of revenue lost to, the local agency as a result of the economic development subsidy.
183

The Program would make available a $500 rebate through one of six franchised Garden Grove New Vehicle Dealerships (the “Participating Dealerships”) to benefit the Garden Grove residents and businesses who purchase a new car or truck in Garden Grove. The Program is a continuing effort of the City’s BiGG (Buy in Garden Grove) Initiative by encouraging residents and businesses to continue to buy locally.

Since the inception of the Program to date, the full amount of sales tax rebated by the City to the Participating Dealerships is approximately $1.3M. If the Program is extended for an additional five (5) years, it is estimated that $1.5M over the next five (5 years) will be rebated to the Participating Dealerships.

4. A statement of the public purpose for the economic development subsidy.

Unlike other goods where the sales tax rate is established by the local rate at the location where the sale takes place, the sales tax rate for vehicle sales is established by the local rate of where the consumer resides. When Measure O was approved by the Garden Grove voters in 2018, an additional 1% sales tax was added to the base Bradley Burns sales tax rate, effectively making the sales tax rate in Garden Grove 8.75%. As such, Garden Grove residents that desire to buy local and purchase their vehicle in Garden Grove pay 1% more in sales tax than they would if they purchase their vehicle in a different city that does not have an additional local sales tax measure. On a vehicle that costs $50,000, an additional 1% equates to another $500 of sales tax. The VRP was established to mitigate this additional burden by providing a $500 rebate to Garden Grove residents that purchase their vehicle in Garden Grove thereby preserving the local tax base to pay for services such as, among other things, public safety and maintenance of public spaces such as streets and parks.

In addition, this Program enables the Participating Dealerships to remain viable and competitive thereby retaining jobs. In 2018, the Participating Dealerships employed 561 team members with an estimated total payroll of $38,160,000. In 2023, the dealerships employed 565 team members, with an estimated total payroll of $56,662,240.

In summary, the Program has helped retain jobs and generated $1.8 million in total gross revenue with a distribution of over $1.3 million in vehicle rebates to Garden Grove residents and the City collecting $505,000.

184
*as of June 7, 2024
*estimated projections (3% annual escalation)

5. The net and projected tax revenue accruing to the local agency as a result of the economic development subsidy.

Year Sales Tax Revenue Sales Tax Rebate City’s Revenue
2019 $162,645.41 $141,000.00 $21,645.41
2020 $383,404.40 $308,500.00 $74,904.40
2021 $396,831.14 $286,500.00 $110,331.14
2022 $331,740.39 $212,000.00 $119,740.39
2023 $392,290.05 $259,000.00 $133,290.05
2024 $161,225.23 $115,500.00 $45,725.23
Total $1,828,136.63 $1,322,500.00 $505,636.63

Year Sales Tax Revenue Sales Tax Rebate City’s Revenue
2025 $387,348.49 $274,495.00 $112,853.49
2026 $398,968.95 $282,729.85 $116,239.10
2027 $410,938.01 $291,211.75 $119,726.27
2028 $423,266.15 $299,948.10 $123,318.06
2029 $435,964.14 $308,946.54 $127,017.60
Total $2,056,485.74 $1,457,331.23 $599,154.50

6. The net number of jobs created by the economic development subsidy, broken down by full-time, part-time, and temporary positions.

In 2023 the Garden Grove New Vehicle Dealerships employed a total 565 team members with 547 full-time and 18 part-time employees with an estimated total payroll of $56,662,240 in wages.

In 2018 the Garden Grove New Vehicle Dealerships employed a total 561 team members with 537 full-time and 24 part-time employees with an estimated total payroll of $38,160,000 in wages.

185
Item 304/2024
Final
City of Garden Grove

INTER-DEPARTMENT MEMORANDUM

To:

Lisa L. Kim From: Teresa Pomeroy
Dept:

City Manager Dept: City Clerk
Date: 7/9/2024

Subject: Appointment to fill a vacancy on the Planning Commission. (Action Item).

OBJECTIVE

For the City Council to approve the Mayor’s appointment to fill the vacancy on the Planning Commission.

BACKGROUND/DISCUSSION

The City of Garden Grove Planning Commission has an unscheduled vacancy left by the unfortunate passing of Commissioner Randy Arbgast. Commissioner Arbgast’s term would have expired in December 2024. Pursuant to Municipal Code 2.21.013, w henever an unscheduled vacancy occurs on a board, commission, or committee referred to herein, whether due to resignation, removal, or other cause, a special vacancy notice shall be posted in the City Clerk's office, Information Centers of City Hall, and published in a local newspaper, within 20 days after the vacancy occurs. A final appointment to the board, committee, or commission to fill the vacancy shall not be made for at least 10 working days after posting of the notice.

A Special Vacancy Notice was published in the Orange County News and announcements were posted on information boards, to the City’s Social Media platforms, and the City’s website inviting members of the public to submit an application to serve as a Planning Commissioner.

Pursuant to Municipal Code 2.21.015, Members of all commissions or boards created by ordinance or resolution shall be and remain residents and qualified electors of the City, with certain exceptions as provided in the Municipal Code.

Attached is the public notice as published on Ma y 22, 2024. Also attached is a list of applicants received by the City Clerk’s Office from 2022 through the current year to date.

Per the City’s retention schedule, applications are kept on file for two years.

FINANCIAL IMPACT

There is no financial impact by this action.

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Item 304/2024

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RECOMMENDATION

It is recommended that the City Council:
 Appoint a Planning Commissioner to complete the term left by Commissioner Arbgast.

ATTACHMENTS

1. Affidavit – Vacancy Notice

2. List of Applicants

187
AFFP
142598 Vacancy Notice
$TATr Or CALTFORNTA i s$
COUI\jTY 0F ORANGE )
I am a citizen of the United States; I am over the age of eighteen years, and not a party to or interested in the above-entitled matter. I am the principle clerk of the prinler of ORANGE COUNTY NEWS, a newspaper of g*neral
circulation. published ONCE WEIKLY in the city *t
GARDHN GROVE, Counly of ORANGf;, which newspaper
has been adjudged a newspaper cf general circulation by the Superior Court ol the County of CIRANGE. State *f
Califernia under the date of March 20, 1964. Case
Nunrber A-31502; that the notice. of which the annexed is a printed copy (set in type not srnailer than nonpar*il), has been published in each regular and entire issue af saiC newspaper and not in any supplement t.h*teaf on the
foliowing dates. to-rsit:

May 22,2*24
*IIY *F GARDEN GROVtr
PLANII II..}G COMMTS$ION VACANCY NOT1CT
Pursuanl 1n Garden Grove llunicipal Cotle Section 2.2.',.*1:J. tr::1.it::r;.: i:; lli.!.fr :51t.:,1 that the Planiling Commissicn las ar1.* unscl"eduletj vilcati,i wtl, 1.i1t1 i12i?-) ..:jrlitrtil Oec*rnber 2*24. lnfarrnatian an,l a lammt*sk:n aysplit:atiatl t:t}fi |ii i:ii'i|i1t)!i,..) i.iv accessing the City's websiie ,.11. v'"r'rw.rg{;1iy.*t!..}i i},1 v$tltiti: tile t..i'14 i...tt:;y;11'.L: i.;ii11.,.,.

Cilyl{all, 112?2Ar;acta Perhrvay, Garden*r*ve,Caliittrr};r ilri:i.,i.,t1,itjrti't,tf i:,:1 j. '.i*44.

Commissioilers are i'lon-compensateC volunleers. Tfie: ?lattti''; t.)ciirtt.",:tu:i::
ccflsisis oi seven rnernbers wh{l are eleclari reoiding i;l i11si4,:t'; l}y,;1.;+;1 "f ili; r;;,..i;i11,1. v*iancies ar* to c*rrqleis \lie 1.eln held by l-;nnnissiai.let 7).?t1(_t, i,.rl:r;a:;1. t:t;;rr r,;;i Ccmi;rissior t.,eetring* are regularly schedliei ,n lne 1:,1 a;:t .:tc 1't.,;:.tii',,; l:i 1,;,;rt rronlh at 7 .t| p.n-'.. and are held tn tl'.e C*mrnunily {ie*l.r,t i.,::;:,,,;:r . 't .,|:,itt.; :::i.;+;lt::,.i Averu*, Garden Grove. Calif*r:ta.
l$/ TERESA FOh.iEROY, ClvlC
City Cierk
Dale: May 15,2A24
Publish: l.lay 22,2fi24
*ratnge C *urr.l:y f4s: *i s 5 i 22 / 2A?-1. -a 4259fr
That said newspaper was regularly issued and circulated on those dates.

SIGNED:
*a/-a,-
Orange County News
Subscribed to and sworn by me this 22nd day of May
2024.
4004727* 00142598
75 LEGAL
OChJ.CiTY OT GARDTru GROVE
P.O. BOX 3070
GARDEN GROVE, CA92842
188
Commission Applicants 2024

Planning Commission
Name District Application Rcvd

Aimee McAfee 4 2/26/23
Alejandra Colon 6 2/22/23
Andrew Nguyen 3 3/11/24
Angie Rubio 4 6/5/24
Christian Jose Lopez 5 1/31/23
Dale Gilbert 1 12/15/22
Duy Nguyen 1 1/12/23
Hartley Hubbard 3 6/16/24
Kenda Taylor 2 6/5/24
Linda Le 3 2/25/23
Linda Zamora 4 1/31/23
Michael Maher 1 1/18/23
Minh-Tri Vu 4 2/6/23
Ramiro Landeros 5 1/12/23
Reza Geramy 3 2/5/23
Tiffany Lwin 5 6/27/24
Tonya Martin 5 2/19/23
Vincent Arzaga 6 2/21/23

Administrative Board of Appeals
Name District Application Rcvd

Dalia Paz G 5 1/10/23
Geramy Majeda 3 2/17/23
Judy Bainto 2 12/17/22
Rowenda Facundo 5 1/10/23

189
Downtown Commission
Name District Application Rcvd

Aimee McAfee 4 2/26/23
Charlene Cuellar 2 1/3/23
Susan Lerma 2/22/23
Zandra Munoz 4 2/2/23

Measure O – Citizen’s Oversight Committee
Name District Application Rcvd

Christina Luu 6 2/26/23
David Clarke 1 5/28/24
Duy Nguyen 1 1/12/23
Margith Agnes Strand 3 5/18/24

Neighborhood Improvement and Conservation Commission
Name District Application Rcvd

Andrew Nguyen 3 3/11/24
Andy Ngo 3 2/7/23
Charlene Cuellar 2 1/3/23
Dalia Paz G 5 1/10/23
Donald Taylor 3 12/18/22
Hartley Hubbard 3 6/16/24
Idalia Galdamez Valle 6 2/20/23
Jamie Apostol 4 2/19/23
Jared Wallace 5 1/7/23
Johnny Nguyen 2 12/15/22
Margith Agnes Strand 3 5/18/24
Martha Figueroa 6 2/24/23
Michael Maher 1 1/18/23
Nicole Jaimes 4 1/12/23
Nora Valle 5 2/20/23
190
Rowenda Facundo 5 1/10/23
Tonya Martin 5 2/19/23
Tracie Pham 3 2/2/23
Yvette "Velvet" Victorian 2 2/6/23
Zandra Munoz 4 2/2/23

Parks, Recreation, and Arts Commission
Name District Application Rcvd

Alejandra Colon 6 2/22/23
Christian Jose Lopez 5 1/31/23
Christopher Bianco 2 2/2/23
Donald Taylor 3 12/18/22
Jennifer Tackney 1 2/28/23
Johnny Nguyen 2 12/15/22
Linda Le 3 2/25/23
Linda Zamora 4 1/31/23
Majeda Geramy 3 2/17/23
Monique Dominguez 1 2/21/23
Nathan Bui 3 11/21/23
Nicholas Dibs 1 1/12/23
Nora Valle 5 2/20/23
Ramiro Landeros 5 1/12/23
Sarah Slegers 1 12/14/22
William Tocki 5 12/18/22

Traffic Commission
Name District Application Rcvd

Hugo Acosta 3 6/6/24
Dale Gilbert 1 12/15/22
Duy Nguyen 1 1/12/23
Idalia Galdamez Valle 6 2/20/23
191
Joshua McNeill 1 2/2/23
Judy Bainto 2 12/17/22
Minh-Tri Vu 4 2/6/23
Tracie Pham 3 2/2/23
Vincent Arzaga 6 2/21/23
William Tocki 5 12/18/22

192
Item 289/2024
Final
City of Garden Grove

INTER-DEPARTMENT MEMORANDUM

To:

Lisa L. Kim From: Anand Rao
Dept:

City Manager Dept: Information Technology
Date: 7/9/2024

Subject: Award a contract to Carahsoft Technology Corporation to provide a cloud-based telephone system. (Cost: $511,670.70) (Action Item)

OBJECTIVE

For the City Council to approve the use of a NASPO ValuePoint Cooperative agreement and award a contract to Carahsoft Technology Corporation for Zoom Video Communications, Inc. to provide a cloud-based telephone system for a total of six (6) years.

BACKGROUND

The Information Technology (IT) Department is responsible for managing the City’s telephone system. The City has been using Cisco branded desk phones and the Cisco Unified Communications phone system since 2017. This system went end -of-life late last year. Replacement would require the purchase of hardware and software which is costly and would require significant staff time to purchase, manage, and maintain. The features and functions offered by the current system no longer match the needs for the City an d have components that are no longer supported. Staff has completed a detailed review of the existing system and evaluated alternatives and options to replace it with a cloud -based telephone system.

DISCUSSION

The new cloud -based telephone service will b e an all -in-one system that will enhance the user experience and productivity to better serve our residents and customers. Unlike the on- premises hardware the City currently has, Zoom’s phone system is cloud -based, which has many advantages including simplified maintenance, improved technology, better security and is more robust. Aside from phone services, Zoom also provides video conferencing service that the City currently utilizes. This service provides various solutions like chat, mail, calendar, whiteboard, and a scheduler.

In the new contract, the City will continue using Zoom’s video conferencing service that will result in overall cost saving s, as the new contract will absorb the current costs. No new hardware is required to be purchased as the City will continue to use the current desk phones. 193
Item 289/2024

Page 2 of 2 ends

Based on the many features provided by Zoom, it will position the City to benefit from current technology and the future of telecommunication.

Staff recommends to contract with Carahsoft Technology Corporation as the distributor and cooperative purchasing contract with NASPO ValuePoint for the use of Zoom Video Communications, Inc. NASPO ValuePoint solicits, evaluates and awards contracts through a competitive bid process. The City is able to utilize these bid awards for cooperative purchasing agreements. Staff recommends piggybacking on the results of an award to Carahsoft Technology Corporation, in place of a formal bid process, to purchase a cloud-based telephone system. The NASPO ValuePoint Master Agreement number is AR2472 which was approved on October 14, 2016.

FINANCIAL IMPACT

This agreement is for six years with a total amount of $511,670. The first year is provided at no cost to the City, and the remaining five years are $102,334.14 annually. Funding for year two through six will be programmed as part of the normal budget process. The funding level for a citywide phone system will not increase from the existing budget allocation.

Specifically, in fiscal years 2023-25 biennial budget, the City Council has already approved a one-time appropriation in the amount of $70,000 to replace the City’s phone system, and thereafter an ongoing amount of $84,000 per year. In addition, an annual amount of $25,000 was allocated for Zoom video conferencing, which will be covered under the new agreement with Carahsoft Technology Corporation.

RECOMMENDATION

It is recommended that the City Council:

 Approve dispensing with bidding requirement pursuant to Garden Grove Municipal Code 2.50.060 (E); which allows the City to use coopera tive purchasing agreements that have gone through a competitive process.

 Award a contract with Carahsoft Technology Corporation in the amount of $511,670.70, to provide a cloud-based telephone system; and

 Authorize the City Manager, or designee(s), to execute the contract on behalf of the City, and make minor modifications as appropriate thereto.

By: Maria Veronica M. Enciso, Sr. Administrative Analyst

ATTACHMENTS

1. California – NASPO Contract

2. Carasoft Quote

194
195
196
197
198
199
200
201
202
203
204
carahsoft

ZOOM PRICE QUOTATION
ZOOM TEAM at CARAHSOFT

CARAHSOFT TECHNOLOGY CORP
11493 SUNSET HILLS ROAD | SUITE 100 | RESTON, VA 20190
PHONE (703) 871-8500 ] FAX (703) 871-8505 | TOLL FREE (833) 544-ZOOM WWW.CARAHSOFT.COM | [email protected]
zoom
TO: Verna Espinoza
City of Garden Grove
11222AcaciaPkwy
Attn: IT Dept /Attn: Terry Chang
Garden Grove , CA 92840 USA
FROM: Billy Turk
Zoom Team at Carahsoft
11493 Sunset Hills Road
Suite 100
Reston,VA20190
EMAIL: [email protected]
PHONE: (714)741-5225
EMAIL: [email protected]
PHONE: (571)662-3323
TERMS; Contract Number: 7-17-70-40-05
NASPO Master Contract Number: AR2472
Contract Term: 09/15/17 - 09/15/26
Shipping Point: FOB Destination
Credit Cards: VISA/MasterCard/AMEX
Remit To: Same as Above
Payment Terms: Net 45 (On Approved Credit)
Sales Tax May Apply
LINE NO. PART NO.DESCRIPTION
QUOTE NO:

QUOTE DATE;
QUOTE EXPIRES;
RFQNO:

SHIPPING:

TOTAL PRICE:

TOTAL QUOTE;

QUOTE PRICE
45440944
06/03/2024
07/03/2024
ESD
$511,670.70
$511,670.70

QTY EXTENI

FREE PERIOD
Z1-BIZP-USCA-500-1YP- Zoom One Business Plus with Phone Number and 491 US/Canada Regional Unlimited Calling Plan Annual Tier 1 (500-999 Users)
Zoom Video Communications, Inc. - Z1-BIZP-USCA-500-
1YP
ZP-PAYG-RCR-491
ZP-USCA-MT-500-1YP-
491
USF-FEE-491
Zoom Phone Pay As You Go - $0 Commitment
Zoom Video Communications, Inc. - ZP-PAYG-RCR
Zoom Phone Pro with Phone Number and US/Canada
Regional Metered Calling Plan Annual Tier 4 (500-999
Users)
Zoom Video Communications, Inc. - ZP-USCA-MT-500-
1YP
USF Tax Fee Estimate (The published $0.01 price is not
the final price. The purchase price is based on a percent of the overall Zoom Phone rate)
Zoom Video Communications, Inc. - USF-FEE
FREE PERIOD SUBTOTAL:
$0.00 COOP 650
$0.00 COOP 1
$0.00 COOP 927
$0.00 COOP 486,862
$0.00
$0.00
$0.00
$0.00
$0.00
YEAR 2
Z1-BIZP-USCA-500-1YP- Zoom One Business Plus with Phone Number and 491 US/Canada Regional Unlimited Calling Plan Annual Tier 1 (500-999 Users)
Zoom Video Communications, Inc. -Z1-BI2P-USCA-500-
1YP
ZP-PAYG-RCR-491
ZP-USCA-MT-500-1YP-
491
USF-FEE-491
Zoom Phone Pay As You Go - $0 Commitment
Zoom Video Communications, Inc. - ZP-PAYG-RCR
Zoom Phone Pro with Phone Number and US/Canada
Regional Metered Calling Plan Annual Tier 4 (500-999
Users)
Zoom Video Communications, Inc. - ZP-USCA-MT-500-
1YP
USF Tax Fee Estimate (The published $0.01 price is not
the final price. The purchase price is based on a percent of the overall Zoom Phone rate)
Zoom Video Communications, Inc. - USF-FEE

CONFIDENTIAL
nA/^c i ^^ 3
$138.88 COOP 650 $90,272.00
$0.00 COOP 1 $0.00
$7.76 COOP 927 $7,193.52

1.01 COOP 486,862 $4,868.62
QUOTE DATE: 06/03/2024
QUOTE NO: 4.S44nc)44
205
carahsoft
ZOOM PRICE QUOTATiON
ZOOM TEAM at CARAHSOFT

QUOTE PRICEQTY EXTENDED PRICE
$102,334.14
YEAR 3
Z1-BIZP-USCA-500-1YP- Zoom One Business Plus with Phone Number and 491 US/Canada Regional Unlimited Calling Plan Annual Tier 1 (500-999 Users)
Zoom Video Communications, Inc. - Z1-BIZP-USCA-500-
1YP
10 ZP-PAYG-RCR-491
11 ZP-USCA-MT-500-1YP-
491
12 USF-FEE-491
Zoom Phone Pay As You Go - $0 Commitment
Zoom Video Communications, Inc. - ZP-PAYG-RCR
Zoom Phone Pro with Phone Number and US/Canada
Regional Metered Calling Plan Annual Tier 4 (500-999
Users)
Zoom Video Communications, Inc. - ZP-USCA-MT-500-
1YP
USF Tax Fee Estimate (The published $0.01 price is not
the final price. The purchase price is based on a percent of the overall Zoom Phone rate)
Zoom Video Communications, Inc. - USF-FEE
YEAR3SUBTOTAL:
$138.88 COOP 650
$0.00 COOP 1
$7.76 COOP 927
$0.01 COOP 486,862
$90,272.00
$0.00
$7,193.52
$4,868.62
$102,334.14
YEAR 4
13 Z1-BIZP-USCA-500-1YP- Zoom One Business Plus with Phone Number and 491 US/Canada Regional Unlimited Calling Plan Annual Tier 1 (500-999 Users)
Zoom Video Communications, Inc. - Z1-BIZP-USCA-500-
1YP
14 ZP-PAYG-RCR-491
15 ZP-USCA-MT-500-1YP-
491
16 USF-FEE-491
Zoom Phone Pay As You Go - $0 Commitment
Zoom Video Communications, Inc. - ZP-PAYG-RCR
Zoom Phone Pro with Phone Number and US/Canada
Regional Metered Calling Plan Annual Tier 4 (500-999
Users)
Zoom Video Communications, Inc. - ZP-USCA-MT-500-
1YP
USF Tax Fee Estimate (The published $0.01 price is not
the final price. The purchase price is based on a percent of the overall Zoom Phone rate)
Zoom Video Communications, Inc. - USF-FEE
YEAR 4 SUBTOTAL:
$138.88 COOP 650
$0.00 COOP 1
$7.76 COOP 927
$0.01 COOP 486,862
$90,272.00
$0.00
$7,193.52
$4,868.62
$102,334.14
YEARS
17 Z1-BIZP-USCA-500-1YP- Zoom One Business Plus with Phone Number and 491
18 ZP-PAYG-RCR-491
19 ZP-USCA-MT-500-1YP-
491
US/Canada Regional Unlimited Calling Plan Annual Tier 1 (500-999 Users)
Zoom Video Communications, Inc. - Z1-BIZP-USCA-500-
1YP
Zoom Phone Pay As You Go - $0 Commitment
Zoom Video Communications, Inc. - ZP-PAYG-RCR
Zoom Phone Pro with Phone Number and US/Canada
Regional Metered Calling Plan Annual Tier 4 (500-999
Users)
Zoom Video Communications, Inc. - ZP-USCA-MT-500-
1YP
$138.88 COOP 650
$0.00 COOP 1
$7.76 COOP 927
$90,272.00
$0.00
$7,193.52

CONFIDENTIAL
n A/-: i- ^ .^.f i
QUOTE DATE: 06/03/2024
QUOTE NO: 4S440944
206
carahsoft
LINE NO. PART NO.
20 USF-FEE-491

ZOOM PRICE QUOTATION
ZOOM TEAM at CARAHSOFT

DESCRIPTION
USF Tax Fee Estimate (The published $0.01 price is not
the final price. The purchase price is based on a percent of the overall Zoom Phone rate)
Zoom Video Communications, Inc. - USF-FEE
YEAR 5 SUBTOTAL:
zoom

QUOTE PRICE QTY EXTENDED PRICE
$0.01 COOP 486,862 $4,868.62
$102,334.14
YEARS
21 Z1-BI2P-USCA-500-1YP- Zoom One Business Plus with Phone Number and 491 US/Canada Regional Unlimited Calling Plan Annual Tier 1 (500-999 Users)
Zoom Video Communications, Inc. - Z1-BIZP-USCA-500-
1YP
22 ZP-PAYG-RCR-491
23ZP-USCA-MT-500-1YP-
491
24 USF-FEE-491
Zoom Phone Pay As You Go - $0 Commitment
Zoom Video Communications, Inc. - ZP-PAYG-RCR
Zoom Phone Pro with Phone Number and US/Canada
Regional Metered Calling Plan Annual Tier 4 (500-999
Users)
Zoom Video Communications, Inc. - ZP-USCA-MT-500-
1YP
USF Tax Fee Estimate (The published $0.01 price is not
the final price. The purchase price is based on a percent of the overall Zoom Phone rate)
Zoom Video Communications, Inc. - USF-FEE
YEAR 6 SUBTOTAL:

SUBTOTAL:

TOTAL PRICE:

TOTAL QUOTE:
$138.88 COOP 650
$0.00 COOP 1
$7.76 COOP 927
$0.01 COOP 486,862
$90,272.00
$0.00
$7,193.52
$4,868.62
$102,334.14
$511,670.70
$511,670.70
$511,670.70
Auto Renew; No
Initial Paid Subscription Term: 72 Month
Paid Period Start Date; 06/15/2025
Free Period Start Date: 07/15/2024
Licensee agrees that any order for public sector customers will be governed by the terms and conditions of the Zoom Terms of Service which are found at https://www.carahsoft.com/application/files/3115/7246/0744/Zoom_TOS_-_Final_10.19.pdf.

The Privacy Policy has been updated and may be found here https;//zoomgov.com/privacy.

The Terms of Service for non public sector customers may be found here https;//zoom.us/terms.

Overage charges can be incurred for cloud recording and audio conferencing licenses. Policy and pricing information may be found here https://support.zoom.us/hc/en-us/articles/360060661511-Cloud-recording-storage-capacity https://zoom.us/zoomconference/rates
Please note provisioning of Zoom licenses can take 4-7 business days

CONFIDENTIAL
nn/^c 3 /xf 3
QUOTE DATE:

QUOTE NO:
06/03/2024
4S44D944
207
Item 291/2024
Final
City of Garden Grove

INTER-DEPARTMENT MEMORANDUM

To:

Lisa L. Kim From: William E. Murray
Dept:

City Manager Dept: Public Works
Date: 7/9/2024

Subject: Award a contract to All American Asphalt for Various Residential Streets Rehabilitation 2024, City Project No. CP-1399293. (Cost: $699,164) (Action Item)

OBJECTIVE

For City Council to award a contract to All American Asphalt for Various Residential Streets Rehabilitation 2024 Project, City Project No. CP-1399293, for the following street segments:

Fern Street from Garden Grove Boulevard to Stanford Avenue, Jackson Street north of Acacia Avenue, Wynant Drive north of Acacia Avenue, Jefferson Street north of Acacia Avenue , Jackson Street north of Stanford Avenue , Wynant Drive north of Stanford Avenue , Monroe Street north of Acacia Avenue, Killarney Road east of Monroe Street , Lenore Street east of Monroe Street, Trinette Drive east of Monroe Street, Cerulean Drive east of Monroe Street, Monroe Street from Stanford Avenue to Lampson Avenue, Stanford Avenue from Fern Street to Dale Street, and Acacia Avenue from Fern Street to Dale Street.

BACKGROUND

Each street will be addressed with different rehabilitation measures to properly manage the unique circumstances and will involve some or most of the following elements: cold milling , roadway excavation, removing and recon structing failed pavement areas , asphalt paving, slurry seal, adjustment of uti lity covers to finish grade, restorat ion of traffic striping , pavement marking and markers, and reestablishment of centerline ties and monuments.

DISCUSSION

Staff solicited bids for this project pursuant to Municipal Code Section 2.50.100. Four (4) qualified bids were received at the City Clerk's office by 1 0:30 a.m. on June 11, 2024. The lowest qualified contractor was All American Asphalt, with a total bid of $699,164.00. This bid amount is within the current project budget. The licenses and references of the contractor have been reviewed and verified by staff, and all other documentation is in order.

208
Item 291/2024

Page 2 of 2 ends

The Anticipated contract schedule is as follows:

Award contract July 9, 2024 Begin Construction (estimated) August 19, 2024 Complete Construction (estimated) October 14, 2024

FINANCIAL IMPACT

The Various Residential Streets Rehabilitation 2024 Project is included in the Fiscal Year 2024- 25 adopted Capital Improvement Plan budget and is funded by Gas Tax and Community Development Block Grant (CDBG) funds. No additional appropriation is needed to approve the contract.

RECOMMENDATION

It is recommended that the City Council:

 Award a contract to All American Asphalt , in the amount of $699,164 for Various Residential Streets Rehabilitation 2024 Project, City Project No. CP-1399293; and

 Authorize the City Manager or designee to execute an agreement with All American Asphalt, and make minor modifications as appropriate thereto, on behalf of the City.

By: Nick Hsieh, P.E., Associate Engineer

ATTACHMENT(S)

1. Bid summary sheet

2. Contract

209

ATTACHMENT 1

CITY OF GARDEN GROVE

PUBLIC WORKS DEPARTMENT

ENGINEERING DIVISION

BID SUMMARY SHEET

FOR

VARIOUS RESIDENTIAL STREETS REHABILITATION 2024 PROJECT CITY PROJECT NO. CP-1399293

BID OPENING: DATE: JUNE 11, 2024 TIME: 10:30 A.M.

ENGINEER’S ESTIMATE: $ 777,250.00

Bidder’s Name Total Bid % Under/Over
Engrs. Est
All American Asphalt, Corona $699,164.00 10.05% Under
RJ Noble Company, Orange $715,785.00 7.91% Under
Hardy & Harper, Inc., Lake Forest $888,000.00 14.25% Over Onyx Paving Company, Inc., Anaheim $1,022,000.00 31.49% Over

210
SECTION 5 – AGREEMENT
- 1 -

C O N S T R U C T I O N A G R E E M E N T

ALL AMERICAN ASPHALT

THIS AGREEMENT is made this 9th day of July, 2024 by the CITY OF GARDEN GROVE, a municipal corporation, ("CITY"), and ALL AMERICAN ASPHALT hereinafter referred to as ("CONTRACTOR").

CITY desires to utilize the services of CONTRACTOR to furnish material, equipment, and labor for the VARIOUS RESIDENTIAL STREETS REHABILITATION 2024, CITY PROJECT NO. CP1399293.

CONTRACTOR is qualified by virtue of experience, training, education, and expertise to accomplish services.

WHEREAS, the Federal Department of Housing and Urban Development is providing partial funding for this Contract to CITY through a Community Development Block Grant;

WHEREAS, CITY has solicited bids for a public works project, hereinafter referred to as “PROJECT," more fully described as VARIOUS RESIDENTIAL STREETS REHABILITATION 2024, in the City of Garden Grove; and

CONTRACTOR has been selected to perform said services,

NOW, THEREFOR, in consideration of the promises and agreements hereinafter made and exchanged, the parties covenant and agree as follows:

1. STATEMENT OF WORK ACCEPTANCE OF RISK
CONTRACTOR shall complete and construct the PROJECT pursuant to this Agreement and the Contract Documents (as hereinafter defined) and furnish, at its own cost and expense, all labor, plans, tools, equipment, supplies, transportation, utilities and all other items, service s and facilities necessary to complete and construct the PROJECT in a good and workmanlike manner.

CONTRACTOR agrees to fully assume the risk of all loss or damage arising out of the nature of the PROJECT, during its progress or prior to acceptance by CITY, from the action of the elements, from any unforeseen difficulties which may arise or be encountered in the prosecution of work, and for all other risks of any description in connection with the work, including, but not limited to, all expenses incurred by or in consequence of the suspension or discontinuance of work, except such as are herein expressly stipulated to be borne by CITY, and for well and faithfully completing the work within the stipulated time and in the manner shown and described in thi s Agreement, and in accordance with the requirements of CITY for the compensation set forth in the accepted bid proposal.

2. ACCEPTANCE OF CONDITIONS OF WORK• PLANS AND

SPECIFICATIONS

CONTRACTOR acknowledges that it is fully familiar with all the terms, con ditions and obligations of this Agreement and the Contract Documents (as defined below in this Section), the location of the job site, and the conditions under which the work is to be performed, and that it enters into this Agreement based upon its thorough investigation of all such matters and is relying in no way upon any opinions or representations of CITY.

211
SECTION 5 – AGREEMENT
- 2 -
It is agreed that the Contract Documents are incorporated into this Agreement by this reference, with the same force and effect as if the same were set forth at length herein, and that CONTRACTOR and its subcontractors, if any, shall be bound by the Contract Documents insofar as they relate in part or in any way, directly or indirectly, to the work covered by this Agreement.

"Contract Documents" as defined herein mean and include:

A. This Agreement;
B. Bonds covering the work herein agreed upon;
C. The CITYs standard Plans and Specifications and special contractual provisions, including those on file in the office of the Director of Public Works of CITY and adopted by the City Council, and any revisions, amendments or addenda thereto; D. The edition of Standard Specifications for Public Works Construction, published by Builders' News, Inc., 10801 National Boulevard, Los Angeles, CA 90064, and all amendments thereto, written and promulgated by the Southern California chapter of the American Public Works Association and the Southern California District Associated General Contractors of the California Joint Cooperative Committee as specified in the particular Plans, Specifications, Special Provisions and Addenda applicable to the Project;
E. All bid documents, including the Notice Inviting Bids, the Special Instructions to Bidders, the CONTRACTOR's proposal, (attached as Exhibit "A"), "Form HUD - 4010," the Federal Labor Standards Provision of the United States (attached as Exhibit "B"), and "Standard Federal Equal Employment Opportunity Construction Contract Specifications," as established by Federal Executive Order 11246 (attached as Exhibit "C").

F. The particular Plans, Specifications, Special Provisions and Addenda applicable to the PROJECT. Anything mentioned in the Specifications and not indicated in the Plans or indicated in the Plans and not mentioned in the Specifications, shall be of like effect as if indicated and mentioned in both. In case of a discrepancy between any Plans, Specifications, Special provisions, or Addenda, the matter shall be immediately submitted by CONTRACTOR to the Department of Public Works of CITY (hereinafter referred to as "DPW"), and CONTRA CTOR shall not attempt to resolve or adjust the discrepancy without the decision of DPW, save only at its own risk and expense.

Should there be any conflict between the terms of this Agreement and the bid or proposal of CONTRACTOR, then this Agreement sha ll control and nothing herein shall be considered as an acceptance of the terms of the bid or proposal which is in conflict herewith.

3. COMPENSATION

CITY agrees to pay and CONTRACTOR agrees to accept as full compensation for the faithful performance of this Agreement, subject to any additions or deductions made under the provisions of this Agreement or the Contract Documents, a sum not to exceed Six Hundred Ninety Nine Thousand One Hundred Sixty Four Dollars ($ 699,164.00 ), as set forth in the Contract Documents, to be paid as provided in this Agreement.

4. COMMENCEMENT OF PROJECT

212
SECTION 5 – AGREEMENT
- 3 -
CONTRACTOR agrees to commence the PROJECT within ten (10) working days after the Notice to Proceed is issued and diligently prosecute the PROJECT to completion within Forty (40) working days from the day the Notice to Proceed is issued by DPW excluding delays provided for in this Agreement.

5. TIME OF THE ESSENCE

The parties hereto recognize and agree that time is of the essence in the performance of this Agreement and each and every provision of the Contract Documents.

CONTRACTOR shall prepare and obtain approval as required by the Contract Documents for all shop drawings, details and samples, and do all other things necessary and incidental to the prosecution of its w ork in conformance with the progress schedule set forth in the Contract Documents. CONTRACTOR shall coordinate its work with the work of all other contractors, subcontractors, and CITY forces working on the PROJECT in a manner that will facilitate the effi cient completion of the PROJECT and in accordance with the terms and provisions of this Agreement. CITY shall have complete control of the premises on which the work is to be performed and shall have the right to decide the time and order in which the vari ous portions of the work shall be performed and the priority of the work of other contractors, subcontractors and CITY forces and, in general, all matters concerning the timely and orderly conduct of the work of CONTRACTOR on the premises.

6. CHANGES

CONTRACTOR shall adhere strictly to the plans and specifications set forth in the Contract Documents unless a change therefrom is authorized in writing by DPW. CONTRACTOR agrees to make any and all changes, furnish materials and perform all work necessary within the scope of the PROJECT as DPW may require in writing. Under no condition shall CONTRACTOR make any changes without the prior written order or acceptance of DPW, and CITY shall not pay any extra charges made by CONTRACTOR that have not been agreed upon in writing by DPW.

When directed to change the work, CONTRACTOR shall submit immediately to DPW a written cost proposal reflecting the effect of the change. Should DPW not agree to such cost proposal, the work shall be performed according to the changes or dered in writing by DPW and the proper cost thereof shall be negotiated by the parties upon cost and pricing data submitted by CONTRACTOR; thereupon, CITY will promptly issue an adjusted change order to CONTRACTOR and the Agreement price will be adjusted upward or downward accordingly.

7. NOTICE TO PROCEED

No work, services, material, or equipment shall be performed or furnished under this Agreement unless and until a Notice to Proceed has been given to CONTRACTOR by CITY. CITY does not warrant that the work will be available on the date the Notice to Proceed is issued. In the event of a delay in commencement of the work due to unavailability of the job site, for any reason, relief to CONTRACTOR shall be limited to a time extension equal to the delay due to such unavailability.

8. BONDS

CONTRACTOR shall, prior to entering into performance of this Agreement, furnish a performance bond, on the CITY's bond form in the amount of one hundred percent (100%) of the Contract price, to guarantee the faithful performance of the work, and a payment bond, on the CITY's form in the amount of one hundred percent (100%) of the Contract price, to guarantee payment of all claims for labor and materials furnished. Bonds submitted on any form other than the CITY's form will be rejected. The 213
SECTION 5 – AGREEMENT
- 4 -
required bonds shall be from a surety licensed to do business in the State of California and with a current A.M. Best's rating of A-, VII. This Contract shall not become effective until such bonds are supplied and approved by the CITY.

In addition, CONTRACTOR shall submit to CITY a bond in the amount of one hundred percent (100%) of the final Agreement price, including all change orders, to warrant such performance for a period of one (1) year after CITY's acceptance thereof within ten (10) days of filing of the Notice of Completion.

9. WARRANTIES

The CONTRACTOR agrees to perform all work under this Contract in accordance with the CITY’s designs, drawings and specifications.

The CONTRACTOR guarantees for a period of one (1) year from the date of the notice of completion of the work that the completed work is free from all defects due to faulty materials, equipment or workmanship and that he shall promptly make whatever adjustments or corrections which may be necessary to cure any defects, incl uding repairs or any damage to other parts of the system resulting from such defects. The CITY shall promptly give notice to the CONTRACTOR of observed defects. In the event that the CONTRACTOR fails to make adjustments, repairs, corrections or other work made necessary by such defects, the CITY may do so and charge the CONTRACTOR the cost incurred. The performance bond shall remain in full force and effect through the guarantee period.

The CONTRACTOR'S obligations under this clause are in addition to t he CONTRACTOR'S other express or implied assurances of this Contract or state law and in no way diminish any other rights that the CITY may have against the CONTRACTOR for faulty materials, equipment or work.

10. INDEPENDENT CONTRACTOR

It is understood and a greed that CONTRACTOR is, and shall be, acting at all times hereunder as an independent contractor and not an employee of CITY. CONTRACTOR shall secure at its own cost and expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for CONTRACTOR and its officers, agents and employees and all business licenses, if any, in connection with the PROJECT and/or the services performed hereunder.

11. LIQUIDATED DAMAGES/DELAYS

It is agreed by the parties hereto that in case the total work called for hereunder is not in all parts and requirements finished or completed within the number of calendar days as set forth herein, damage will be sustained by C ITY; and that it is, and would be, impractical and extremely difficult to ascertain and determine the actual damage which CITY would sustain in the event of and by reason of such delay. It is, therefor, agreed that CONTRACTOR will pay to CITY, as liquidate d damages and not as a penalty, the sum of Four Thousand Two Hundred Dollars ($ 4,200.00 ) per each calendar days delay in completing the work in excess of the number of working/calendar days set forth herein, which represents a reasonable endeavor by the parties hereto to estimate a fair compensation for the foreseeable damages CITY would sustain in the event of and by reason of such delay; and CONTRACTOR agrees to pay these damages herein provided, and further agrees that CITY may deduct the amount thereo f from any monies due or that may become due to CONTRACTOR hereunder. For projects on the National Highway System (NHS), the local formula for liquidated damages will be provided.
214
SECTION 5 – AGREEMENT
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CONTRACTOR will be granted an extension of time and will not be assessed damages for any portion of the delay in the completion of the work due to unforeseeable causes beyond the control and without the fault or negligence of CONTRACTOR, including, but not limited to, acts of God or of the public enemy, fire, floods, epidemics, quarantine restrictions, strikes, unsuitable weather, or delays of subcontractors due to such causes.

CONTRACTOR shall, within fifteen (15) days from the beginning of any such delay (unless DPW shall grant a further period of time), notify DPW in writing of the cause of the delay and CITY shall extend the time for completing the work if, in its judgment, the findings of fact thereon justify the delay; and the decision of DPW shall be conclusive on the parties hereto.

Should CONTRACTOR be delayed in the prosecution or completion of the work by the act, neglect or default of CITY, or should CONTRACTOR be delayed by waiting for materials required by this Agreement to be furnished by CITY, or by damage caused by fire or other casualty at the job site for which CONTRACTOR is not responsible, or by the combined action of the workers, in no way caused by or resulting from default or collusion on the part of CONTRACTOR, or in the event of a lockout by CITY, then the time herein fixed for the completion of the work shall be extended by the number of days CONTRACTOR has thus been delayed, but no allowance or extension shall be made unless a claim therefor is presented in writing to CITY within fifteen (15) days of the commencement of such delay.

No claims for additional compensation or damages for delays, irrespective of the cause thereof, and including without limitation the furnishing of materials by CITY or delays by other contractors or subcontractors, will be allowed and an extension of time for completion shall be the sole remedy of CONTRACTOR.

12. DEMANDS FOR ADDITIONAL TIME OR MONEY
A. Definitions.
(1) "Change Order" means a document signed by the CONTRACTOR and CITY which authorizes an addition, deletion or revision in the work, or an adjustment in the Compensation under Section 3, or the Completion Time specified at Section 4. (2) "Demand" means a written demand for a Change Order by the CONTRACTOR for any of the following:
(a) A time extension;
(b) Payment of money or damages arising from work done by, or on behalf of, the CONTRACTOR pursuant to this Agreement and payment of which is not expressly permitted pursuant to Section 3 of this Agreement;
(c) Payment of an amount the CITY disputes;
(d) Any disputes and other matters relating to the acceptability of the work performed or the interpretation of the Contract Documents; (e) A request for a time extension or additional payment based upon differing site conditions, such as subsurface or latent physical conditions at the job site differing materially from those indicated in t his Agreement or the Contract Documents, or unknown physical conditions at the job site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent to work of the PROJECT; or
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(f) A request for a time extension or additional payment based upon acts of neglect by CITY or due to fires, floods, labor disputes, epidemics, abnormal weather conditions or acts of God.

B. A Demand for a time extension or payment of money or damages may only be granted by a Change Order.

C. No Change Order may be granted except where the Contractor has submitted a Demand to the DPW (or his or her written designee). All Demands shall be submitted promptly, but in no event later than thirty (30) days after the occurrence of the event giving rise to the Demand. The Demand shall be in writing and include all documents necessary to substantiate the Demand. The DPW shall act on the Demand within fifteen (15) days after receipt, including by requesting additional information from the CONTRACTOR to determine whether to approve the Change Order the Demand seeks. The DPW shall act on the Demand within fifteen (15) days after receipt of the additional information or within a period of time no greater than the time the CONTRACTOR took to produce the additional information requested, whichever is greater.

D. Notwithstanding the thirty (30) days to submit a Demand under Subparagraph C, in the case of differing or unknown site conditions, immediately upon encountering the conditions, CONTRACTOR shall notif y the DPW in writing of the conditions, so that the CITY may promptly investigate the conditions.

E. If the CONTRACTOR disputes the DPW's written response on the Demand, or the CITY fails to respond within the time prescribed, the CONTRACTOR may so notify the City Engineer, in writing, either within fifteen (15) days of receipt of the City Engineer's response or within fifteen (15) days of the DPW's failure to respond within the time prescribed, respectively, and request an informal conference to meet and conf er for settlement of the Demand. Upon the CONTRACTOR's request, the DPW shall schedule a meet and confer conference within thirty (30) days to seek to resolve.

F. CITY and CONTRACTOR shall execute appropriate Change Orders covering changes to the time or price by executing the Change Order by mutual agreement. If the CITY and CONTRACTOR are unable to reach a mutual agreement, then the City Engineer shall issue a written decision on the claim within a reasonable time.

G. Following the meet and confer confe rence, if the Demand remains in dispute, the CONTRACTOR may file a claim with the City as provided in Chapter I (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code. For purpo ses of those provisions, the running of the period of time within which a claim must be filed shall be tolled from the time the time the CONTRACTOR submits his or her Demand until the Demand is denied as a result of the meet and confer process, including a ny period of time utilized by the meet and confer process.

13. VARIATIONS IN ESTIMATED QUANTITIES

The quantities listed in the bid schedule will not govern final payment. Payment to CONTRACTOR will be made only for the actual quantities of Agreement items used in construction of the PROJECT, in accordance with the plans and specifications. Upon completion of the PROJECT, if the actual quantities used are either more than or less than the quantities listed in the bid schedule, the bid price shall prevail subject to the provisions of this Section. DPW may, at its sole discretion, when warranted by the fac ts and circumstances, order an equitable adjustment, upwards or downwards, in payment to CONTRACTOR where the actual quantities used in construction of the PROJECT are in variation to the quantities listed in the bid schedule. No claim by CONTRACTOR for an equitable adjustment in price or time for completion shall be allowed if asserted after final payment under this Agreement. If the quantity variation is such as to cause an increase in the time necessary for completion, 216
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DPW shall ascertain the facts and c ircumstances and make such adjustment for extending the completion date as in its sole judgment the findings warrant.

14. PROGRESS PAYMENTS

Each month DPW will make an estimate in writing of the work performed by CONTRACTOR and the value thereof. From each progress estimate, five percent (5%) will be deducted and retained by CITY and the remainder of the progress estimate, less the amount of all previous payments since commencement of the work, will be paid to CONTRACTOR.

When CONTRACTOR has, in the judgm ent of DPW, faithfully executed fifty percent (50%) or more of the value of the work as determined from the bid schedule, and if DPW finds that satisfactory progress has been and is being made, CONTRACTOR may be paid such sum as will bring the payments of each month up to one hundred percent (100%) of the value of the work completed since the commencement of the PROJECT, as determined in its sole discretion by DPW, less all previous payments and less all previous retained amounts.

CITY's final payment to C ONTRACTOR, if unencumbered, or any part thereof unencumbered, shall be made thirty (30) days after the acceptance of the work and the filing of a Notice of Completion by CITY. Provided, however, that in the event of a dispute between CITY and CONTRACTOR, CITY may withhold from the final payment an amount not to exceed 150 percent of the value of any disputed amount of work. Payments shall be made on demands drawn in the manner required by law, each payment to be accompanied by a certificate signed by DPW, a ffirming that the work for which payment is demanded has been performed in accordance with the terms of the Agreement and that the amount stated in the certificate is due under the terms of the Agreement. Partial payments on the contract price shall not be considered as an acceptance of any part of the work.

15. WITHHELD CONTRACT FUNDS SUBSTITUTION OF SECURITIES

At the request and at the sole cost and expense of CONTRACTOR, who shall retain beneficial ownership and receive interest, if any thereon, CITY shall permit the substitution and deposit therewith of securities equivalent to the amount of any monies withheld by CITY to ensure performance under the terms of this Agreement.

16. AFFIDAVITS OF SATISFACTION OF CLAIMS

After the completion of the work contempl ated by this Agreement, CONTRACTOR shall file with DPW its affidavit stating that all workers and persons employed, all firms supplying materials and all subcontractors working upon the PROJECT have been paid in full and that there are no claims outstanding against the PROJECT for either labor or material, except certain items, if any, to be set forth in CONTRACTOR's affidavit covering disputed claims, or items in connection with Notices to Withhold, which have been filed under the provisions of the statutes of the State of California.

17. WAIVER OF CLAIMS

The acceptance by CONTRACTOR of the payment of the final certificate shall constitute a waiver of all claims against CITY under or arising out of this Agreement.

18. RISK AND INDEMNIFICATION

All work covered by this Contract done at the site of construction or in preparing or delivering materials to the site shall be at the risk of CONTRACTOR alone. CONTRACTOR agrees to 217
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save, indemnify and keep the City of Garden Grove and City of Stanton , their Officers, Agents, Employees, Engineers, and Consultants for this Contract, and all public agencies from whom permits will be obtained and their directors, Officers, Agents and Employees harmless against any and all liability, claims, judgments, costs a nd demands, including demands arising from injuries or death of persons (CONTRACTOR'S employees included) and damage to property, arising directly or indirectly out of the obligations herein undertaken or out of the operations conducted by CONTRACTOR, save and except claims or litigation arising through the active negligence or willful misconduct of CITY and will make good to reimburse CITY for any expenditures, including reasonable attorneys' fees CITY may incur by reason of such matters, and if requested by CITY, will defend any such suits at the sole cost and expense of CONTRACTOR.

19. INSURANCE
COMMENCEMENT OF WORK . CONTRACTOR shall not commence work under this Agreement until all certificates and endorsements have been received and approved by the CITY. All insurance required by this Agreement shall contain a statement of obligation on the part of the carrier to notify the city of any material change, cancellation, or termination at least thirty (30) days in advance.

A waiver of subrogation shall be provided by the insurer for each policy waiving subrogation against City of Garden Grove and City of Stanton, their officers, officials, employees, agents, and volunteers for this contract and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by the CITY, Claims made and modified occurrence policies shall not be accepted for any policy. All Subcontractors shall be required to provide and maintain the same insurances as required of CONTRACTOR under this contract. CONTRACTOR shall be required to collect and maintain all required insurances from all Subcontractors.

CONTRACTOR is aware of the provisions of Section 3700 of the Labor Code, which requires every employer to be insured against liability for Workers’ Compensation or undertake self-insurance in accordance with the provisions of that Code, and will comply with such provisions before commencing the performance of the work of this Contract.

CONTRACTOR and all Subcontractors shall carry workers' compensation insurance for the protection of its employees during the progress of the work. The insurer shall waive its rights of subrogation against the City of Garden Grove and City of Stanton , their officers, officials, employees, agents, and volunteers for this contract and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by the CITY, and shall issue a waiver of subrogation.

Before CONTRACTOR performs any work at, or prepares or delivers materials to, the site of construction, CONTRACTOR shall furnish:

Additional Insured Endorsements, ongoing and products -completed operations, for the Commercial General Liability policy , including mobile equipment and not excluding XCU.

Endorsements shall designate City of Garden Grove and City of Stanton , their officers, officials, employees, agents, and volunteers for this contract and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by the CITY, as additional insureds for liability arising out of work or operations performed by or on behalf of the CONTRACTOR.

CONTRACTOR shall provide to CITY proof of insurance and endorsement forms that conform to CITY’s requirements, as approved by the CITY. (Form CG 20 26 07 04 & Form CG 20 37 07 04 or equivalent) (Claims made and modified occurrence policies are not acceptable; Insurance companies must be acceptable to CITY and have a minimum A.M. Best Guide rating of A -, class VII or better, as approved by CITY).

An Additional Insured Endorsement for an Automobile Liability policy and shall designate City of Garden Grove and City of Stanton , their officers, officials, employees, agents, and volunteers for this contract and all public agencies from whom permits will be obtained and their directors, 218
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officers, agents, and employees, as determined by the CITY, as additional insureds for automobiles owned, leased, hired, or borrowed by the CONTRACTOR. CONTRACTOR shall provide to CITY proof of insurance and endorsement forms that conform to CITY’s requirements, as approved by the CITY. (Form CA 20 48 02 99 or equivalent) ( Claims made and modified occurrence policies are not acceptable; Insurance companies must be acceptable to CITY and have a minimum A.M. Best Guide rating of A-, class VII or better, as approved by CITY).

A Loss Payee Endorsement for the Course of Construction policy designating the City of Garden Grove as Loss Payee. ( Claims made and modified occurrence policies are not acceptable; Insurance companies must be acceptable to CITY and hav e a minimum A.M. Best Guide rating of A-, class VII or better, as approved by CITY).

In the event any of CONTRACTOR’S underlying policies do not meet policy limits as required here in, CONTRACTOR shall provide the schedule of underlying polices for a follows form excess liability policy, state that the excess policy follows form on the insurance certificate, and an additional insured endorsement for the excess liability policy designating City of Garden Grove and City of Stanton, their officers, officials, employees, agents, and volunteers for this contract and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by the CITY, as additional insureds. (Claims made and modified occurrence policies are not acceptable; Insurance companies must be acceptable to CITY and have a minimum A.M. Best Guide rating of A-, class VII or better, as approved by CITY).

For any claims related to this Project, the CONTRACTOR’s insurance coverage shall be primary insurance as respects City of Garden Grove and City of Stanton , their officers, officials, employees, agents, and volunteers for this contract and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by the CITY. Any insurance or self-insurance maintained by the City of Garden Grove and City of Stanton , their officers, officials, employees, agents, and volunteers for this contract and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by the CITY, shall be excess of the CONTRACTOR’s insurance and not contribute with it.

Before CONTRACTOR performs any work at, or prepares or delivers materials to, the site of construction, CONTRACTOR shall furnish:

CONTRACTOR shall maintain all of the foregoing insurance coverage in force until the work under this Contract is fully completed. The requirement for carrying the foregoing insurance shall not derogate from the provisions for indemnification of CITY by CO NTRACTOR under this Contract.

Notwithstanding nor diminishing the obligations of CONTRACTOR with respect to the foregoing, CONTRACTOR shall subscribe for and maintain in full force and effect during the life of this Contract, the following insurance in amounts not less than the amounts specified and issued by a company admitted and licensed in California and having a Best's Guide Rating of A -Class VII or better (claims made and modified occurrence policies are not acceptable):

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Workers’ Compensation As required by the State of
California.

Employer’s Liability

Not less than $1,000,000 per
accident for bodily injury or disease.

Commercial General Liability
(including on-going operations, products
- completed operations, and mobile
equipment, and not excluding XCU)

Not less than $5,000,000 per
occurrence for bodily injury,
personal injury and property
damage.

Automobile Liability, for all automobiles
including non-owned and hired vehicles

Not less than $2,000,000 combined
single limit for bodily injury and
property damage.

Course of Construction

Completed value of the project with
no coinsurance penalty provisions.

Follows Form Excess Liability

Required for any underlying policy
that does not meet the underlying
policy limits required herein.

If contractor maintains higher insurance limits than the minimums shown above, CONTRACTOR shall provide coverage for the higher limits otherwise maintained by the CONTRACTOR.

CITY or its representatives shall at all times have the right to inspect and receive a certified copy of all said policies of insurance, including certificates and endorsements at CONTRACTORS sole cost and expense. CONTRACTOR shall pay the premiums on the insurance hereinabove required.

20. CALIFORNIA PREVAILING WAGE LAW AND FEDERAL DAVIS-BACON ACT.

A. General Prevailing Rate. CITY has ascertained CONTRACTOR shall comply with all applicable requirements of Division 2, Part 7, Chapter 1 of the California Labor Code and all applicable federal requirements respecting the payment of prevailing wages. If there is a difference between the minimum wage rates predetermined by the Secretary of Labor and the prevailing wage rates determined by the Director of the Department o f Industrial Relations (DIR) for similar classifications of labor, the CONTRACTOR and its Subcontractors shall pay not less than the higher wage rate. The DIR will not accept lower State wage rates not specifically included in the Federal minimum wage dete rminations.

This includes "helper" (or other classifications based on hours of experience) or any other classification not appearing in the Federal Wage determinations. Where Federal wage determinations do not contain the State wage rate determination othe rwise available for use by the CONTRACTOR and Subcontractors, the CONTRACTOR and its Subcontractors shall pay not less than the Federal Minimum wage rate which most closely approximates the duties of the employees in question."

B. Forfeiture for Violation. CONTRACTOR shall, as a penalty to the CITY, forfeit one hundred dollars ($100.00) for each calendar day or portion thereof for each worker paid (either by the CONTRACTOR or any subcontractor under it) less than the prevailing rate of per diem wages as set by the Director of Industrial Relations, in accordance with Sections 1770 1780 of the California Labor Code 220
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for the work provided for in this Contract, all in accordance with Section 1775 of the Labor Code of the State of California.

C. Apprentices. Section 1777.5, 1777.6 and 1777.7 of the Labor Code of the State of California, regarding the employment of apprentices is applicable to this Contract and the CONTRACTOR shall comply therewith; provided, however, that this requirement shall not apply if and/or to the extent that the Contract of the general CONTRACTOR, or the contracts of specialty contractors not bidding for work through a general or prime contractor involve less than thirty thousand dollars ($30,000.00).

D. Workday. In the performance of this Contract, not more than eight (8) hours shall constitute a day's work, and CONTRACTOR shall not require more than eight (8) hours of labor in a day from any person employed by him hereunder except as provided in paragraph (5.14.2) above.

CONTRACTOR shall conform to Article 3, Chapter 1, Part 7 (Sections 1810 et seq.) of the Labor Code of the State of California and shall forfeit to the CITY as a penalty, the sum of twenty five Dollars ($25.00) for each worker employed in the execution of this Contract by CONTRAC TOR or any subcontractor for each calendar day during which any worker is required or permitted to labor more than eight (8) hours in any one
E. Calendar day and forty (40) hours in any one week in violation of said Article.

CONTRACTOR shall keep an accurate record showing the name and actual hours worked each calendar day and each calendar week by each worker employed by CONTRACTOR in connection with the Project.

F. Record of Wages: Inspection. CONTRACTOR agrees to maintain accurate payroll records showing th e name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed by it in connection with the Project and agrees to require that each of its subcontractors does the same. The applicable CONTRACTOR or subcontractor or its agent having authority over such matters shall certify all payroll records as accurate. CONTRACTOR further agrees that its payroll records and those of its subcontractors shall be available to the employee or employee's representative, the Division of Labor Standards Enforcement, and the Division of Apprenticeship Standards and shall comply with all of the provisions of Labor Code Sect ion 1776, in general. CONTRACTOR shall comply with all of the provisions of Labor Code Section 1776, and shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). The CONTRACTOR shall submit copies of certified pa yroll reports and cancelled checks for labors, every two weeks to the Engineer. Certified payroll and cancelled checks submittals are due one month after start of construction and every two weeks thereafter. If the certified payroll and cancelled checks are not submitted, the CONTRACTOR will be notified that compliance is required within five (5) working days or contract work must cease. The CITY will not be responsible for any delay or acceleration charges or any incurred costs or damages as a result of the work stoppage due to CONTRACTOR’s failure to comply.

Work shall be ceased in an orderly, safe fashion with all vehicle access restored. Should this not occur, CITY will correct the deficiencies and deduct the cost from funds due to the CONTRACTOR. In addition, no progress payment shall be made until the copies of certified payroll reports and cancelled checks are submitted.

G. Contractor Registration. CONTRACTOR and its subcontractors must be registered with the California Department of Industrial Relations pursuant to Labor Code Section 1725.5.

This Agreement shall not be effective until CONTRACTOR provides proof of registration to the CITY.

H. Posting of Job Site Notices. CONTRACTOR shall comply with the job site notices posting requirements established by the Labor Commissioner pursuant to Title 8, California Code of Regulations Section 16461(e) or other regulation promulgated pursuant to Labor Code Section 1771.4(a) (2).
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I. Notice of DIR Compliance Monitoring and Enforcement. Pursuant to Labor Code Section 1771.4, this Project is subject to compliance monitoring and enforcement by the California Department of Industrial Relations.

21. TERMINATION

This Contract may be terminated in whole or in part in writing by the CITY in the event of substantial failure by the CONTRACTOR to fulfill its obligations under this Agreement, or it may be terminated by the CITY for its convenience in the manner provided for in subsections A and B below. If termination for default or convenience is effected by the CITY, an equitabl e adjustment in the price provided for in this Contract shall be made, but (1) no amount shall be allowed for anticipated profit on unperformed services or other work, and (2) any payment due to the CONTRACTOR at the time of termination may be adjusted to cover any additional costs to the CITY because of the CONTRACTOR'S default. Upon receipt of a termination action, the CONTRACTOR shall (1) promptly discontinue all affected work (unless the notice directs otherwise), and (2) deliver or otherwise make avai lable to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by the CONTRACTOR in performing this Contract whether completed or in process. Upon termination, the CITY may take over the work and may award another party an agreement to complete the work under this Contract.

A. Termination for Default.

If the CONTRACTOR refuses or fails to prosecute the work or any separable part thereof with such diligence as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the work in a manner required by the Contract Documents and/or industry standards, or fails to complete such work within such time as required under the Contract Documents or, if the CONTRACTOR should be adjudged as bankrupt, or is otherwise deemed insolvent by CITY based on good cause and is unable to proceed with the work, or if the CONTRACTOR should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the CONTRACTOR files a petition to take advantage of any debtor’s act, or should any subcontractor violate any of the provisions of the Contract Documents, or if the CONTRACTOR should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled workers or proper materials to complete t he work in the time specified, or if the CONTRACTOR should fail to make prompt payment to subcontractors for material or labor, or if the CONTRACTOR should persistently disregard laws, or instructions given by CITY, or if the CONTRACTOR otherwise substantially fails to fulfill its obligations under the Contract Documents, CITY may, without prejudice to any other right or remedy, serve written notice upon the CONTRACTOR and Sureties of CITY’s intention to terminate the CONTRACTOR’s performance under the contract. Said notice shall contain the reasons for such intention to terminate the CONTRACTOR’s performance under the contract, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the c orrections thereof have been made, the CITY may terminate CONTRACTOR’s performance under the contract and the CONTRACTOR shall not be entitled to receive any further payment until the work is completed.

In the event of any such termination, CITY shall serve written notice thereof upon the Surety and CONTRACTOR, and the Surety shall have the right to take over and perform the contract.

However, if the Surety, within five (5) days after the service of a notice of termination, does not give CITY written notice of its intention to take over and perform the contract, and if it serves such notice of its intent to take over and perform the contract and does not begin performance thereof within fifteen (15) days from the date of serving said notice, CITY may take over the work and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the CONTRACTOR, and the Sureties and/or CONTRACTOR shall be liable to CITY for any excess cost or 222
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other damage incurred by CITY thereby. If the Surety assumes the CONTRACTOR’s terminated work, it shall take the CONTRACTOR’s place in all respects for that part and shall be paid by CITY for all work performed by it in accordance with the terms of the Contract Documents. If the Surety assumes the entire contract, all money due the CONTRACTOR at the time of its default shall be payable to the Surety as the work progresses, subject to the terms of the contract.

CONTRACTOR hereby consents to assigning to CITY and/or CITY’s replacement contractor all subcontracts and other agreements of any and all subcontractors and/or suppliers that may be on the worksite and/or may be necessary to complete the work in the event of Termination for Default or Termination for Convenience, as set forth below. CONTRACTOR agrees to obtain, by way of a subcontract provision, the consent of each and every subcontractor and/or supplier for such assignment prior to the commencement of each such subcontractor’s and/or supplier’s work on the PROJECT.

In the event of such termination, the CONTRACTOR will be paid the actual amount due based on unit prices or lump sums Bid and the quantity of work completed at the time of termination, less damages caused to CITY by acts of the CONTRACTOR causing the termination, including but not limited to, all costs to CITY arising from professional services and attorneys' fees and all costs generated to insure or bond the work of substituted CONTRACTORS or subcontractors utilized to complete the work, such excess shall be paid to the CONTRACTOR. If such costs exceed the unpaid balance, the CONTRACTOR shall pay the difference to CITY promptly upon demand. On failure of the CONTRACTOR to pay, the Surety shall pay on demand by CITY. Any portion of such difference not paid by the CONTRACTOR or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by California law.

The CONTRACTOR and CITY agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees.

The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to CITY.

If it is later determined by CITY that the CONTRACTOR had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the CONTRACTOR, CITY, after setting up a new performance schedule, may allow the CONTRACTOR to continue work, or treat the termination as a termination for convenience, and the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of CITY.

B. Termination for Convenience.

CITY may terminate the CONTRACTOR’s performance under the contract, either in whole or in part, at its own discretion or when conditions encountered during the work make it impossible or impracticable to proceed, or when CITY is prevented from proceed ing with the contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of CITY, or whenever CITY is prohibited from completing the work for any reason. CITY shall provide no less than ten (10) days written notice of its intent to terminate the Contract for convenience and shall provide the CONTRACTOR with consultation with CITY prior to termination.

1. Upon receipt of such written notice of termination, the CONTRACTOR shall:

a. Stop Work as specified in the written notice;

b. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
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c. If directed in writing by CITY to do so, assign all right, title and interest in subcontracts and materials in progress, in which case CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any CONTRACTOR include lost profits for uncompleted portions of Work;

d. Deliver or otherwise make available to CITY all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing this Contract whether completed or in process;

e. Settle outstanding liabilities and claims with the approval of CITY;

f. Complete performance of such part of the work as has not been terminated; and

g. Take such other actions as may be necessary, or as may be directed by CITY for the protection and preservation of the Project and/or property related to the contract.

2. Upon receipt of CITY’s written notice of termination for convenience, and within a period of 30 to 60 days, as determined by the Engineer at the time of termination, the CONTRACTOR shall submit to the Engineer a Termination Proposal which shall include, but is not limited to, the CONTRACTOR’s estimated costs to be incurred by the CONTRACTOR as a result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the CONTRACTOR’s subcontractor(s) and supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for work completed as of the date of termination, if any; a list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the Engineer; and any other information and/or documentation as required by the CITY.

Upon receipt of the CITY’s written notice of term ination for convenience, the CONTRACTOR shall submit to the Engineer a request for final payment, pursuant to the requirements set forth in the contract. Such request shall be submitted promptly, but no later than sixty (60) days from the effective date of termination.

3. The final payment to the CONTRACTOR after termination for convenience shall be limited to amounts due and owing under the contract at time of termination, including the following:

a. Any actual costs incurred by the CONTRACTOR for restocking charges;

b. The agreed upon price of protecting the work in any manner, if any, as directed by CITY;
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c. The cost of settling and paying claims arising out of the termination of the work under subcontract agreements or orders with CITY’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or work furnished by subcontractor prior to the effective date of the termination; and

d. The contract price allocable to the portion of the work properly performed or goods supplied by the CONTRACTOR as of the date of termination, as determined in accordance with the Contract Documents, reduced by any sums previously paid to the CONTRACTOR.

4. CITY shall have the right to withhold any portion or the who le of the final payment under this provision in the event there are any outstanding claims for compensation asserted by CITY against the CONTRACTOR, or by any third party against CITY which arises out of the CONTRACTOR’s work.

22. DISPOSITION OF PLANS ESTIMATES AND OTHER DOCUMENTS

CONTRACTOR agrees that upon completion of the work to be performed hereunder, or upon expiration or earlier termination of this Agreement, all original plans, specifications, drawings, reports, calculations, maps and other documents pertaining to this Agreement shall be delivered to CITY and become its sole property at no further cost.

23. NONASSIGNABILITY

CONTRACTOR shall not sell, assign, transfer, convey or encumber this Agreement, or any part hereof, or any right or duty created herein, without the prior written consent of CITY and the surety.

24. CITY EMPLOYEES AND OFFICIALS

CONTRACTOR shall employ no CITY official nor any regular CITY employee in the work performed pursuant to this Agreement. No officer or employee of CITY shall h ave any financial interest in this Agreement in violation of the California Government Code.

25. STOP NOTICES• RECOVERY OF ADMINISTRATIVE COSTS

CITY shall be entitled to all reasonable administrative costs and necessary disbursements arising out of the processing of Stop Notices, Notices to Withhold, or any similar legal document. This obligation shall be provided for in the labor and materials pa yment bond required of CONTRACTOR.

CITY may charge an administrative fee of One Hundred Dollars ($100) for every Stop Notice filed in excess of two (2), regardless of whether or not CITY is named in an action to enforce such stop notices.

CITY may set off any unreimbursed cost or expense so incurred against any sum or sums owed by CITY to CONTRACTOR under this Agreement.

26. NOTICES

Any notices, certificates, or other communications hereunder shall be given either by personal delivery or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses specified below; provided that CITY and 225
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CONTRACTOR, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent:

TO CITY: TO CONTRACTOR:

City of Garden Grove All American Asphalt
ATTN: Lesly Cantarero Attention: Edward J. Carlson, Vice President 11222 Acacia Parkway PO Box 229
Garden Grove, CA 92840 Corona, CA 92878
(714) 741-5179 Phone (951) 736-7600 Phone
(714) 741-5578 Fax (951) 736-7646 Fax

27. SECTION HEADINGS

The titles, captions, section, paragraph, and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of maters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement.

28. IMMIGRATION

CONTRACTOR shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular , comply with the provisions of the Immigration Reform and Control Act of 1978 (8 USC Section 1324a) regarding employment verification.

29. ATTORNEY'S FEES

If any action at law or in equity is necessary to enforce or interpret the terms of this Contract, each shall bear its own attorneys' fees, costs and necessary disbursements. Notwithstanding the foregoing, if any action is brought against the CONTRACTOR or any subcontractor to enforce a Stop Notice or Notice to Withhold, which named the CITY as a party to said action, the CITY shall be entitled to reasonable attorneys' fees, costs and necessary disbursements arising out of the defense of such action by the CITY. The CITY shall be entitled to deduct its costs for any Stop Notice filed, whether court action is involved or not.

30. INTERPRETATION OF THIS AGREEMENT

The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law.

31. GOVERNING LAW

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This Agreement shall be governed and construed in accordance with the laws of the State of California and venue shall be in Orange County.

32. DUPLICATE ORIGINAL

The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who has signed it.

33. CONSENT

Where CITYs consent/approval is required under this Agreement, its consent/approval for one transaction or event shall not be deemed to be consent/approval to any subsequent occurrence of the same or any other transaction or event.

34. CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT

CONTRACTOR agrees to comply with all requirements and utilize fair employment practices in accordance with California Government Code Sections 12900 et seq.

35. SIGNATORIES

Each undersigned represents and warrants that its signature herein below ha s the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify CITY fully for any injuries or damages to CITY in the event that such authority or power is not, in fact, held by the signatory or is withdrawn.

36. ENTIRETY

The foregoing, and Exhibits "A" through "C" attached hereto, set forth the entire Agreement between the parties. No waiver or modification of this Agreement shall be valid unless in writing duly executed by both parties.

The parties acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arm's length negotiations, and that each has had the opportunity to consult with legal counsel prior to executing this Agreement. The partie s also acknowledge and agree that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by that party or anyone acting on that party's behalf, which are not embodied in this Agreement, and that that party h as not executed this Agreement in reliance on any representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this Agreement. 227
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FHWA-1273 -- Revised May 1, 2012

REQUIRED CONTRACT PROVISIONS

FEDERAL-AID CONSTRUCTION CONTRACTS

I. General
II. Nondiscrimination
III. Nonsegregated Facilities
IV. Davis-Bacon and Related Act Provisions
V. Contract Work Hours and Safety Standards Act Provisions VI. Subletting or Assigning the Contract
VII. Safety: Accident Prevention
VIII. False Statements Concerning Highway Projects
IX. Implementation of Clean Air Act and Federal Water Pollution Control Act
X. Compliance with Governmentwide Suspension and Debarment Requirements
XI. Certification Regarding Use of Contract Funds for Lobbying

ATTACHMENTS

A. Employment and Materials Preference for Appalachian Development Highway System or Appalachian Local Access Road Contracts (included in Appalachian contracts only)

I. GENERAL

1. Form FHWA-1273 must be physically incorporated in each construction contract funded under Title 23 (excluding emergency contracts solely intended for debris removal). The contractor (or subcontractor) must insert this form in each subcontract and further require its inclusion in all lower tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services).

The applicable requirements of Form FHWA-1273 are incorporated by reference for work done under any purchase order, rental agreement or agreement for other services. The prime contractor shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider.

Form FHWA-1273 must be included in all Federal-aid design-build contracts, in all subcontracts and in lower tier subcontracts (excluding subcontracts for design services, purchase orders, rental agreements and other agreements for supplies or services). The design-builder shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider.

Contracting agencies may reference Form FHWA-1273 in bid proposal or request for proposal documents, however, the Form FHWA-1273 must be physically incorporated (not referenced) in all contracts, subcontracts and lower-tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services related to a construction contract).

2. Subject to the applicability criteria noted in the following sections, these contract provisions shall apply to all work performed on the contract by the contractor's own organization and with the assistance of workers under the contractor's immediate superintendence and to all work performed on the contract by piecework, station work, or by subcontract.

3. A breach of any of the stipulations contained in these Required Contract Provisions may be sufficient grounds for withholding of progress payments, withholding of final payment, termination of the contract, suspension / debarment or any other action determined to be appropriate by the contracting agency and FHWA.

4. Selection of Labor: During the performance of this contract, the contractor shall not use convict labor for any purpose within the limits of a construction project on a Federal-aid highway unless it is labor performed by convicts who are on parole, supervised release, or probation. The term Federal-aid highway does not include roadways functionally classified as local roads or rural minor collectors.

II. NONDISCRIMINATION

The provisions of this section related to 23 CFR Part 230 are applicable to all Federal-aid construction contracts and to all related construction subcontracts of $10,000 or more. The provisions of 23 CFR Part 230 are not applicable to material supply, engineering, or architectural service contracts.

In addition, the contractor and all subcontractors must comply with the following policies: Executive Order 11246, 41 CFR 60, 29 CFR 1625- 1627, Title 23 USC Section 140, the Rehabilitation Act of 1973, as amended (29 USC 794), Title VI of the Civil Rights Act of 1964, as amended, and related regulations including 49 CFR Parts 21, 26 and 27; and 23 CFR Parts 200, 230, and 633.

The contractor and all subcontractors must comply with: the requirements of the Equal Opportunity Clause in 41 CFR 60-1.4(b) and, for all construction contracts exceeding $10,000, the Standard Federal Equal Employment Opportunity Construction Contract Specifications in 41 CFR 60-4.3.

Note: The U.S. Department of Labor has exclusive authority to determine compliance with Executive Order 11246 and the policies of the Secretary of Labor including 41 CFR 60, and 29 CFR 1625-1627. The contracting agency and the FHWA have the authority and the responsibility to ensure compliance with Title 23 USC Section 140, the Rehabilitation Act of 1973, as amended (29 USC 794), and Title VI of the Civil Rights Act of 1964, as amended, and related regulations including 49 CFR Parts 21, 26 and 27; and 23 CFR Parts 200, 230, and 633.

The following provision is adopted from 23 CFR 230, Appendix A, with appropriate revisions to conform to the U.S. Department of Labor (US DOL) and FHWA requirements.

1. Equal Employment Opportunity: Equal employment opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (28 CFR 35, 29 CFR 1630, 29 CFR 1625-1627, 41 CFR 60 and 49 CFR 27) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140 shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this contract. The provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR 35 and 29 CFR 1630 are incorporated by reference in this contract. In the execution of this contract, the contractor agrees to comply with the following minimum specific requirement activities of EEO:

a. The contractor will work with the contracting agency and the Federal Government to ensure that it has made every good faith effort to provide equal opportunity with respect to all of its terms and conditions of employment and in their review of activities under the contract.

b. The contractor will accept as its operating policy the following statement:

"It is the policy of this Company to assure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, color, national origin, age or disability. Such action shall include: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship, pre-apprenticeship, and/or on- the-job training."

2. EEO Officer: The contractor will designate and make known to the contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active EEO program and who must be assigned adequate authority and responsibility to do so
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3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action, or who are substantially involved in such action, will be made fully cognizant of, and will implement, the contractor's EEO policy and contractual
responsibilities to provide EEO in each grade and classification of employment. To ensure that the above agreement will be met, the following actions will be taken as a minimum:

a. Periodic meetings of supervisory and personnel office employees will be conducted before the start of work and then not less often than once every six months, at which time the contractor's EEO policy and its implementation will be reviewed and explained.

The meetings will be conducted by the EEO Officer.

b. All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor.

c. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in the contractor's procedures for locating and hiring minorities and women.

d. Notices and posters setting forth the contractor's EEO policy will be placed in areas readily accessible to employees, applicants for employment and potential employees.

e. The contractor's EEO policy and the procedures to implement such policy will be brought to the attention of employees by means of meetings, employee handbooks, or other appropriate means.

4. Recruitment: When advertising for employees, the contractor will include in all advertisements for employees the notation: "An Equal Opportunity Employer." All such advertisements be placed in publications having a large circulation among minorities and women in the area from which the project work force would normally be derived.

a. The contractor will, unless precluded by a valid bargaining agreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minorities and women. To meet this requirement, the contractor will identify sources of potential minority group employees, and establish with such identified sources procedures whereby minority and women applicants may be referred to the contractor for employment consideration.

b. In the event the contractor has a valid bargaining agreement providing for exclusive hiring hall referrals, the contractor is expected to observe the provisions of that agreement to the extent that the system meets the contractor's compliance with EEO contract provisions. Where implementation of such an agreement has the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Federal nondiscrimination provisions.

c. The contractor will encourage its present employees to refer minorities and women as applicants for employment. Information and procedures with regard to referring such applicants will be discussed with employees.

5. Personnel Actions: Wages, working conditions, and employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, national origin, age or disability.

The following procedures shall be followed:

a. The contractor will conduct periodic inspections of project sites to insure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel.

b. The contractor will periodically evaluate the spread of wages paid within each classification to determine any evidence of discriminatory wage practices.

c. The contractor will periodically review selected personnel actions in depth to determine whether there is evidence of discrimination. Where evidence is found, the contractor will promptly take corrective action. If the review indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons.

d. The contractor will promptly investigate all complaints of alleged discrimination made to the contractor in connection with its obligations under this contract, will attempt to resolve such complaints, and will take appropriate corrective action within a reasonable time. If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of their avenues of appeal.

6. Training and Promotion:

a. The contractor will assist in locating, qualifying, and increasing the skills of minorities and women who are applicants for employment or current employees. Such efforts should be aimed at developing full journey level status employees in the type of trade or job classification involved.

b. Consistent with the contractor's work force requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs, i.e., apprenticeship, and on- the-job training programs for the geographical area of contract performance. In the event a special provision for training is provided under this contract, this subparagraph will be superseded as indicated in the special provision. The contracting agency may reserve training positions for persons who receive welfare assistance in accordance with 23 U.S.C. 140(a).

c. The contractor will advise employees and applicants for employment of available training programs and entrance
requirements for each.

d. The contractor will periodically review the training and promotion potential of employees who are minorities and women and will encourage eligible employees to apply for such training and promotion.

7. Unions: If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use good faith efforts to obtain the cooperation of such unions to increase opportunities for minorities and women. Actions by the contractor, either directly or through a contractor's association acting as agent, will include the procedures set forth below:

a. The contractor will use good faith efforts to develop, in cooperation with the unions, joint training programs aimed toward qualifying more minorities and women for membership in the unions and increasing the skills of minorities and women so that they may qualify for higher paying employment.

b. The contractor will use good faith efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, national origin, age or disability.

c. The contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, the contractor shall so certify to the contracting agency and shall set forth what efforts have been made to obtain such information.

d. In the event the union is unable to provide the contractor with a reasonable flow of referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, national origin, age or disability; making full efforts to obtain qualified and/or qualifiable minorities and women. The failure of a union to provide sufficient referrals (even though it is obligated to provide exclusive referrals 229
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under the terms of a collective bargaining agreement) does not relieve the contractor from the requirements of this paragraph. In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the contracting agency.

8. Reasonable Accommodation for Applicants / Employees with Disabilities: The contractor must be familiar with the requirements for and comply with the Americans with Disabilities Act and all rules and regulations established there under. Employers must provide reasonable accommodation in all employment activities unless to do so would cause an undue hardship.

9. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The contractor shall not discriminate on the grounds of race, color, religion, sex, national origin, age or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The contractor shall take all necessary and reasonable steps to ensure nondiscrimination in the administration of this contract.

a. The contractor shall notify all potential subcontractors and suppliers and lessors of their EEO obligations under this contract.

b. The contractor will use good faith efforts to ensure subcontractor compliance with their EEO obligations.

10. Assurance Required by 49 CFR 26.13(b):

a. The requirements of 49 CFR Part 26 and the State DOT’s U.S.

DOT-approved DBE program are incorporated by reference.

b. The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the contracting agency deems appropriate.

11. Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO requirements.

Such records shall be retained for a period of three years following the date of the final payment to the contractor for all contract work and shall be available at reasonable times and places for inspection by authorized representatives of the contracting agency and the FHWA.

a. The records kept by the contractor shall document the following:

(1) The number and work hours of minority and non-minority group members and women employed in each work classification on the project;

(2) The progress and efforts being made in cooperation with unions, when applicable, to increase employment opportunities for minorities and women; and

(3) The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minorities and women;

b. The contractors and subcontractors will submit an annual report to the contracting agency each July for the duration of the project, indicating the number of minority, women, and non-minority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA-1391. The staffing data should represent the project work force on board in all or any part of the last payroll period preceding the end of July. If on-the-job training is being required by special provision, the contractor will be required to collect and report training data. The employment data should reflect the work force on board during all or any part of the last payroll period preceding the end of July.

III. NONSEGREGATED FACILITIES

This provision is applicable to all Federal-aid construction contracts and to all related construction subcontracts of $10,000 or more.

The contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensure that its employees are not assigned to perform their services at any location, under the contractor's control, where the facilities are segregated. The term "facilities" includes waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, washrooms, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees. The contractor shall provide separate or single-user restrooms and necessary dressing or sleeping areas to assure privacy between sexes.

IV. DAVIS-BACON AND RELATED ACT PROVISIONS
This section is applicable to all Federal-aid construction projects exceeding $2,000 and to all related subcontracts and lower-tier subcontracts (regardless of subcontract size). The requirements apply to all projects located within the right-of-way of a roadway that is functionally classified as Federal-aid highway. This excludes roadways functionally classified as local roads or rural minor collectors, which are exempt. Contracting agencies may elect to apply these requirements to other projects.

The following provisions are from the U.S. Department of Labor regulations in 29 CFR 5.5 “Contract provisions and related matters” with minor revisions to conform to the FHWA-1273 format and FHWA program requirements.

1. Minimum wages
a. All laborers and mechanics employed or working upon the site of the work, will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics.

Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph 1.d. of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be
compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any 230
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additional classification and wage rates conformed under paragraph

1.b. of this section) and the Davis-Bacon poster (WH–1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.
b. (1) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefor only when the following criteria have been met:
(i) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (ii) The classification is utilized in the area by the construction industry; and
(iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.
(2) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (3) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Wage and Hour Administrator for determination. The Wage and Hour
Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30- day period that additional time is necessary.
(4) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs 1.b.(2) or 1.b.(3) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.
c. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. d. If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.

2. Withholding
The contracting agency shall upon its own action or upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor under this contract, or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to Davis- Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the contracting agency may, after written notice to the contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.

3. Payrolls and basic records
a. Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. b. (1) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the contracting agency. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals.

Instead the payrolls shall only need to include an individually identifying number for each employee ( e.g. , the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH–347 is available for this purpose from the Wage and Hour Division Web site at
http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the contracting agency for transmission to the State DOT, the FHWA or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the contracting agency.. (2) Each payroll submitted shall be accompanied by a “Statement of Compliance,” signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:
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(i) That the payroll for the payroll period contains the information required to be provided under §5.5 (a)(3)(ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under §5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information is correct and complete;
(ii) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR part 3;
(iii) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract.
(3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH–347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph 3.b.(2) of this section. (4) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code.
c. The contractor or subcontractor shall make the records required under paragraph 3.a. of this section available for inspection, copying, or transcription by authorized representatives of the contracting agency, the State DOT, the FHWA, or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the FHWA may, after written notice to the contractor, the contracting agency or the State DOT, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.

4. Apprentices and trainees
a. Apprentices (programs of the USDOL).

Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice.

The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed.

Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination.

In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.
b. Trainees (programs of the USDOL).

Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration.

The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration.

Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed.

In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved.
c. Equal employment opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30.
d. Apprentices and Trainees (programs of the U.S. DOT). 232
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Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal-aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeymen shall not be greater than permitted by the terms of the particular program.

5. Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract.

6. Subcontracts. The contractor or subcontractor shall insert Form FHWA-1273 in any subcontracts and also require the subcontractors to include Form FHWA-1273 in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5.

7. Contract termination: debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12.

8. Compliance with Davis-Bacon and Related Act requirements.

All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract.

9. Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S.

Department of Labor, or the employees or their representatives.

10. Certification of eligibility.
a. By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
b. No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). c. The penalty for making false statements is prescribed in the U.S.

Criminal Code, 18 U.S.C. 1001.

V. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
The following clauses apply to any Federal-aid construction contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act.

These clauses shall be inserted in addition to the clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As used in this paragraph, the terms laborers and mechanics include watchmen and guards.

1. Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives
compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

2. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (1.) of this section, the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1.) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1.) of this section.

3. Withholding for unpaid wages and liquidated damages. The FHWA or the contacting agency shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2.) of this section.

4. Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (1.) through (4.) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1.) through (4.) of this section.

VI. SUBLETTING OR ASSIGNING THE CONTRACT

This provision is applicable to all Federal-aid construction contracts on the National Highway System.

1. The contractor shall perform with its own organization contract work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the contracting agency. Specialty items may be performed by subcontract and the amount of any such specialty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635.116).

a. The term “perform work with its own organization” refers to workers employed or leased by the prime contractor, and equipment owned or rented by the prime contractor, with or without operators.

Such term does not include employees or equipment of a
subcontractor or lower tier subcontractor, agents of the prime contractor, or any other assignees. The term may include payments for the costs of hiring leased employees from an employee leasing firm meeting all relevant Federal and State regulatory requirements.

Leased employees may only be included in this term if the prime contractor meets all of the following conditions:

(1) the prime contractor maintains control over
the supervision of the day-to-day activities of the leased employees; (2) the prime contractor remains responsible for the quality of the work of the leased employees;
(3) the prime contractor retains all power to accept or exclude individual employees from work on the project; and
(4) the prime contractor remains ultimately responsible for the payment of predetermined minimum wages, the submission of 233
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payrolls, statements of compliance and all other Federal regulatory requirements.

b. "Specialty Items" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid or propose on the contract as a whole and in general are to be limited to minor components of the overall contract.

2. The contract amount upon which the requirements set forth in paragraph (1) of Section VI is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions.

3. The contractor shall furnish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who performs the work) and (b) such other of its own organizational resources (supervision, management, and
engineering services) as the contracting officer determines is necessary to assure the performance of the contract.

4. No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the contracting agency has assured that each subcontract is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract.

5. The 30% self-performance requirement of paragraph (1) is not applicable to design-build contracts; however, contracting agencies may establish their own self-performance requirements.

VII. SAFETY: ACCIDENT PREVENTION

This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.

1. In the performance of this contract the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract.

2. It is a condition of this contract, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR 1926)
promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704).

3. Pursuant to 29 CFR 1926.3, it is a condition of this contract that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C.3704).

VIII. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS

This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.

In order to assure high quality and durable construction in conformity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppliers, and workers on Federal-aid highway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and honestly as possible.

Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, Form FHWA-1022 shall be posted on each Federal-aid highway project (23 CFR 635) in one or more places where it is readily available to all persons concerned with the project:

18 U.S.C. 1020 reads as follows:

"Whoever, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false statement, false representation, or false report as to the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or

Whoever knowingly makes any false statement, false
representation, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or

Whoever knowingly makes any false statement or false
representation as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal-aid Roads Act approved July 1, 1916, (39 Stat. 355), as amended and
supplemented;

Shall be fined under this title or imprisoned not more than 5 years or both."

IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL

WATER POLLUTION CONTROL ACT

This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.

By submission of this bid/proposal or the execution of this contract, or subcontract, as appropriate, the bidder, proposer, Federal-aid construction contractor, or subcontractor, as appropriate, will be deemed to have stipulated as follows:

1. That any person who is or will be utilized in the performance of this contract is not prohibited from receiving an award due to a violation of Section 508 of the Clean Water Act or Section 306 of the Clean Air Act.

2. That the contractor agrees to include or cause to be included the requirements of paragraph (1) of this Section X in every subcontract, and further agrees to take such action as the contracting agency may direct as a means of enforcing such requirements.

X. CERTIFICATION REGARDING DEBARMENT, SUSPENSION,

INELIGIBILITY AND VOLUNTARY EXCLUSION

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This provision is applicable to all Federal-aid construction contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, consultant contracts or any other covered transaction requiring FHWA approval or that is estimated to cost $25,000 or more – as defined in 2 CFR Parts 180 and 1200.

1. Instructions for Certification – First Tier Participants:

a. By signing and submitting this proposal, the prospective first tier participant is providing the certification set out below.

b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective first tier participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective first tier participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction.

c. The certification in this clause is a material representation of fact upon which reliance was placed when the contracting agency determined to enter into this transaction. If it is later determined that the prospective participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the contracting agency may terminate this transaction for cause of default.

d. The prospective first tier participant shall provide immediate written notice to the contracting agency to whom this proposal is submitted if any time the prospective first tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.

e. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180 and 1200. “First Tier Covered Transactions” refers to any covered transaction between a grantee or subgrantee of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a grantee or subgrantee of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).

f. The prospective first tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction.

g. The prospective first tier participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transactions," provided by the department or contracting agency, entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold.

h. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the Excluded Parties List System website
(https://www.epls.gov/), which is compiled by the General Services Administration.

i. Nothing contained in the foregoing shall be construed to require the establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of the prospective participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

j. Except for transactions authorized under paragraph (f) of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.

* * * * *

2. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – First Tier Participants:

a. The prospective first tier participant certifies to the best of its knowledge and belief, that it and its principals:

(1) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency;

(2) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;

(3) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (a)(2) of this certification; and

(4) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default.

b. Where the prospective participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.

2. Instructions for Certification - Lower Tier Participants:

(Applicable to all subcontracts, purchase orders and other lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and 1200)

a. By signing and submitting this proposal, the prospective lower tier is providing the certification set out below.

b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. 235
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c. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances.

d. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180 and 1200. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. “First Tier Covered Transactions” refers to any covered transaction between a grantee or subgrantee of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a grantee or subgrantee of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).

e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated.

f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold.

g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the Excluded Parties List System website
(https://www.epls.gov/), which is compiled by the General Services Administration.

h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

i. Except for transactions authorized under paragraph e of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.

* * * * *

Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Participants:

1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency.

2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.

* * * * *

XI. CERTIFICATION REGARDING USE OF CONTRACT FUNDS

FOR LOBBYING

This provision is applicable to all Federal-aid construction contracts and to all related subcontracts which exceed $100,000 (49 CFR 20).

1. The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:

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

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

2. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into.

Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

3. The prospective participant also agrees by submitting its bid or proposal that the participant shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose accordingly.
236
IN WITNESS THEREOF, these parties have executed this Construction Agreement on the day and year shown below.

Date: "CITY"

CITY OF GARDEN GROVE

By:

Lisa Kim
City Manager
ATTEST:

City Clerk

Date:
"CONTRACTOR"

ALL AMERICAN ASPHALT .

CONTRACTOR'S State License No. 267073
(Expiration Date: 01/31/2026 )

By:

Title:

Date:

APPROVED AS TO FORM:

______________________________
Garden Grove City Attorney
If CONTRACTOR is a corporation, a Corporate
Resolution and/or Corporate Seal is required.

Date__________________________
237

72 EXHIBIT B
(Form HUD-4010, the Federal Labor Standards Provision of the United States) Federal Labor Standards Provisions U.S. Department of Housing and Urban Development Office of Labor Relations

1 Applicability
The Project or Program to which the construction work covered by this contract pertains is being assisted by the United States of America and the following Federal Labor Standards Provisions are included in this Contract pursuan t to the provisions applicable to such Federal assistance.
(i) Minimum Wages. All laborers and mechanics employed or working upon the site of the work, will be paid unconditionally and not less often than once a week, and without subsequent deduction or re bate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR Part 3), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor an d such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under Section I(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of 29 CFR )(iv); also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR.

Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under 29 CFR 5.5(a)(1)(ii) and the Davis -Bacon poster (WH1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible, place where it can be easily seen by the workers. (ii) (a) Any class of laborers or mechanics which is not listed in the wage determination and which is to be emplo yed under the contract shall be classified in conformance with the wage determination. HUD shall approve an additional classification and wage rate and fringe benefits therefor only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and
(2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (b) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and HUD or its designee agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by HUD or its designee fo the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, D.C. 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove 238

73 every additional classification action within 30 days of receipt and so advise HUD or its designee or will notify HUD or its designee within the 3D-day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB control number 1215* 0140.) (c) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, a nd HUD or its designee do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), HUD or its designee shall refer the questions, including the views of all interested parties and the recommendation of HUD or its designee, to the Administrator for determination.

The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advice HUD or its designee or will notify HUD or its designee wit hin the 30-day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB Control Number 1215-0140.)
(d) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (l)(ii)(b) or ( c) of this paragraph, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.
(iv) If the contractor does not make payments to a trustee of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis Bacon Act have been met.

The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. (Approved by the Office of Management and Budget under OMB Control Number 1215-0140.)

2. Withholding. HUD or its designee shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be w ithheld from the contractor under this contract or any other Federal contract with the same prime contractor, or any other Federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor so much o f the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract in the event of failure to pay any laborer or mechanic, including any apprentice, trainee or helper, employed or working on the site of the work, all or part of the wages required by the contract, HUD or its designee may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. HUD or its designee may, after written notice to the contractor, disburse such amount s withheld for and on account of the contractor or subcontractor to the respective employees to whom they are due. The Comptroller General shall make such disbursements in the case of direct Davis-Bacon Act contracts.

3. (i) Payrolls and basic records. Payro lls and basic records relating thereto shall be maintained by the contractor during the course of the work preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in Section I(b)(2)(B) of the Davis -bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5 (a)(l)(iv) that the wages of any laborer or mechanic include the amou nt of any costs (iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
239

74 reasonably anticipated in providing benefits under a plan or program described in Section I(b)(2)(B) of the Davis Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Con tractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (Approved by the Office of Management and Budget under OMB Control Numbers 1215-0140 and 1215-0017.) (ii) (a) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to HUD or its designee if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit the payrolls to the applicant sponsor, or owner, as the case may be, for transmission to HUD or its designee. T he payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR except that full social security numbers and home addresses shall not be included on weekly transmittals, Instead the payrolls sha ll only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number)- The required weekly payroll information may be submitted in any form desired. Optional Form WH-347 is available for this purpose from the Wage and Hour Division Web site at htto://www. dol. aov/esa/whdJforms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors.

Contractors and su bcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to HUD or its designee if the agency is a party to the contract, but if the agency is not such a party, the contract or will submit the payrolls to the applicant sponsors or owner, as the case may be, for transmission to HUD or its designee, the contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this subparagraph for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to HUD or its designee. (Approved by the Office of Management and Budget under OMB Control Number 1215-01 49.)
(b) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:
(1) That the payroll for the payroll period contains the information required to be provided under 29 CFR 5.5 (a)(3)(ii), the appropriate information is being maintained under 29 CFR

5.5(a)(3)(i), and that such information is correct and complete;

(2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 CFR Part 3;
(3) That each laborer or mechanic has been p aid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (c) The weekly submission of a properly executed cer tification set forth on the reverse side of Optional Form WH -347 shall satisfy the requirement for submission of the "Statement of Compliance" required by subparagraph A.3.(II)(b).
240

75 (d) The falsification of any of the above certifications may subject the contr actor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the United States Code.
(iii) The contractor or subcontractor shall make the records required under subparagraph A.3 - (i) available for inspection, copying, or transcription by authorized representatives of HUD or its designee or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to su bmit the required records or to make them available, HUD or its designee may, after written notice to the contractor, sponsor, applicant or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.

4. Apprentices and Trainees.

Expressed as a percentage of the journeymen hourly rate spe cified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.
(i) Trainees- Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to j ourneymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefit s, trainees• shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administrat ion shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not les s than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved- (ii) Equal employment opportunity. The utilization of apprentices, trainees and journeymen under 29 CFR Part 5 shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.

5. Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR Part 3 which are incorporated by reference in this contract 241

76 6. Subcontracts. The contractor or subcontractor will insert in any subcontracts the clauses contained in subparagraphs I through 11 in this paragraph A and such other clauses as HUD or its designee may by appropriate instructions require, and a copy of the appli cable prevailing wage decision, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in this paragraph. 7, Contract termination; debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.1 2.

8. Compliance with Davis -Bacon and Related Act Requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract

9. Disputes concerning labor standards. D isputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract.

Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and HUD or its designee, the U.S.

Department of Labor or the employees or their representatives.

10. (i) Certification of Elig ibility. By entering into this contract the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of Section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR Part 24.
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of Section 3(a) of the Davis -Bacon Act or 29 CFR or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR Part 24. (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C- 1001 . A dditionally, U.S - Criminal Code, Section 1 01 0, Title 1 8, U.S.Cs, "Federal Housing Administration transactions", provides in part: "Whoever, for the purpose of influencing in any way the action of such Administration. makes, utters or publishes any state ment knowing the same to be false shall be fined not more than $5,000 or imprisoned not more than two years, or both-
I l . Complaints, Proceedings, or Testimony by Employees. No laborer or mechanic to whom the wage, salary, or other labor standards provi sions of this Contract are applicable shall be discharged or in any other manner discriminated against by the Contractor or any subcontractor because such employee has filed any complaint or instituted or caused to be instituted any proceeding or has testified or is about to testify in any proceeding under or relating to the labor standards applicable under this Contract to his employer.

B. Contract Work Hours and Safety Standards Act The provisions of this paragraph B are applicable where the amount of t he prime contract exceeds $100,000 - As used in this paragraph, the terms "laborers" and "mechanics" include watchmen and guards. (1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which the indiv idual is employed on such work to work in excess of 40 hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one -half times the basic rate of pay for all hours worked in excess of 40 hours in such workweek. (2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in subparagraph (1) of this paragraph, the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for 242

77 the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in subparagraph (1 ) of this paragraph, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of 40 hours without payment of the overtime wages required by the clause set forth in sub paragraph (1) of this paragraph.
(3) Withholding for unpaid wages and liquidated damages. HUD or its des ignee shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contract, or any other Federally-assisted contract subject to the Contract Work Hours and Safety Standards Act which is held by the same prime contractor such sums as may be determined to be necessar y to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided jn the clause set forth in subparagraph (2) of this paragraph.
(4) Subcontracts. The contractor or subcontractor shall insert in any subcontr acts the clauses set forth in subparagraph (I) through (4) of this paragraph and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontract or or lower tier subcontractor with the clauses set forth in subparagraphs (I) through (4) of this paragraph.

C. Health and Safety. The provisions of this paragraph C are applicable where the amount of the prime contract exceeds $100,000.
(1) No laborer or mec hanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health and safety as determined under construction safety and health standards promulgated by the Secretary of Labor by regulation.
(2) The Contractor shall comply with all regulations issued by the Secretary of Labor pursuant to Title 29 Part 1926 and failure to comply may result in imposition of sanctions pursuant to the Contract Work Hours and Safety Standards Act, (Public Law 91-54, 83 stat 96). 40 USC 3701 et seq.
(3) The contractor shall include the provisions of this paragraph in every subcontract so that such provisions will be binding on each subcontractor. The contractor shall take such action with respect to any subcontractor as the Secretary of Housing and Urban Development or the Secretary of Labor shall direct as a means of enforcing such provisions 243

78 EXHIBIT C

STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY

CONSTRUCTION CONTRACT SPECIFICATIONS
(EXECUTIVE ORDER 11246)

1. As used in these specifications:
a. "Covered area" means the geographical area described in the solicitation from which this contract resulted.
b. "Director" means Director, Office of Federal Contract Act Compliance Program, United States Department of Labor, or any person to whom the Director delegates authority.
c. "Employer identification number" means the Federal social security number used on the Employer' s Quarterly Federal Tax Return, U.S. Treasury Department Form 941.
d. "Minority" includes:
(i) Black (all persons having origins in any of the black African racial groups not of Hispanic origin)
(ii) Hispanic (all persons of Mexican, Puerto Rican, Cuban Central or South American, or other Spanish Culture or origin, regardless of race) (iii) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands)
(iv) American Indian or Alaskan Native (all groups having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification)

2. Whenever the Contractor or any Subcontractor at any tier subcontracts a portion of the work involving any construction trade, it must physically include in each subcontract in excess of $10,000 the provisions of these specifications and the Notice that contains the applicable goals for minority and fema le participation and which is set forth in the solicitations from which the contract resulted.

3. If the Contractor is participating (pursuant to 41 CFR Part 60-4.5) in a Hometown Plan approved by the U.S. Department of Labor in the covered area either indivi dually or through as association, its affirmative action obligations on all work in the Plan area (including goals and timetables) must be in accordance with that Plan for those trades which have unions participating in the Plan. Contractors must be able t o demonstrate their participation in and compliance with the provisions of any such Hometown Plan.

Each Contractor or Subcontractor participating in an approved Plan is individually required to comply with its obligations under the Equal Employment Opportunity (EEO) Clause, and to make a good faith effort to achieve each goal under the Plan in each trade in which it has employees. The overall good faith performance by other Contractors or Subcontractors toward a goal in an approved Plan does not excuse any covered Contractors or Subcontractors failure to take good faith efforts to achieve the Plan goals and timetables.
244

79 4. The Contractor must implement the specific affirmative action standards provided in Section VIl, Paragraphs 7a through 7p of these specifica tions. The goals set forth in the solicitation from which this contract resulted are expressed as percentages of the total hours of employment and training of minority and female tuition that the Contractor should reasonably be able to achieve in each construction trade in which it has employees in the covered area. Covered construction contractors performing construction work in geographical areas where they do not have a Federal or federally assisted construction contract must apply the minority and fem ale goals established for the geographical area where the work is being performed. Goals are published periodically in the Federal Register in notice of and such notices may be obtained from any Office of Federal Contract Compliance Programs or from Federa l procurement Contracting Officers. The Contractor is expected to make substantially uniform progress toward meeting its goals in each craft during the period specified.

5. Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom the Contractor has a collective bargaining agreement, to refer either minorities or women will excuse the Contractors obligations under these specifications, Executive Order 11246, nor the regulations promulgated pursuant thereto.

6. In order for the nonworking training hours of apprentices and trainees to be counted in meeting the goals, apprentices and trainees must be employed by the Contractor during the training period and the Contractor must have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor.

7. The Contractor must take specific affirmative actio ns to ensure equal employment opportunity. The evaluation of the Contractors compliance with these specifications must be based upon its effort to achieve maximum results from its actions. The Contractor must document these efforts fully and must implement affirmative action steps at least as extensive as the following:
a. Ensure and maintain a working environment free of harassment, intimidation, and coercion at all sites and in all sites at which the Contractors employees are assigned to work. The Contractor , where possible, will assign two or more women to each construction project. The Contractor must specifically ensure that all foremen, superintendents, and other onsite supervisory personnel are aware of and carry out the Contractor's obligations to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities.
b. Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the Contractor or its unions have employment opportunities available, and maintain a record of the organization's responses.
c. Maintain a current file of the names, addresses, and telephone numbers of each minority and female off-the-street applicant; and minority and female referral from a union, a recruitment source or community organization; and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the Contractor by the union or, if referred, not employed by the Contractor; this must be documented in the file with the reason therefor, along with whatever additional actions the Contractor may have taken.
d. Provide immediate written notification to the director when the union or unions with which the Contractor has a collective bargaining agreement have not 245

80 referred to the Contractor a minority person or woman sent by the Contractor or when t he Contractor has other information that the union referral process had impeded the Contractor's efforts to meet its obligations. e. Develop on-the-job training opportunities or participate in training programs for the area that expressly includes minorities and women, including upgrading programs and apprenticeship and trainee programs relevant to the Contractors employment needs, especially those programs funded or approved by the Department of Labor. The Contractor must provide notice of these programs to the sources compiled under Section VII 7b above.
f. Disseminate the Contractor's EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the Contractor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, annual report, etc.; specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posing the company EEO policy on bulletin boards accessible to all employees at each location where construction work is performed.

Review, at least annually, the company's EEO policy and affirmative action obligations under these specifications with all employees having any responsible for hiring, assessment, layoff, termination, or their employment decisions, including specific review of these items with onsite supervisory personnel such as superintendents, general foreman etc., prior to the initiation of construction work at any job site. A written record must be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter. h. Disseminate the Contract's EEO policy externally by including it in any advertising in the news media, specifically including minority and female news media, and providing written notification to and discussing the Contractor's EEO policy with other contractors and subcontractors with whom the Contractor does or anticipates doing business.
i. Direct its recruitment efforts, both oral and written, to minority, female, and community organizations: to schools with minorities and female students, and to minority and female recruitment and training organizations serving the Contractor's recruitment area and employment needs. Not later than one month prior to the date for the acceptance of the applications for apprenticeship or other, training by any recruitment sources, the Contractor must send written notification to organizations such as the above, describing the openings, screening procedure, and tests to be used in the selection process. j. Encourage present minority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer, and vacation employment to minority and female youth both on the site and in other areas of a Contractor’s workforce.
k. Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR Part 60-3.

1. Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities.
246

81 m. Ensure that seniority practices, job classification work assignments, and other personnel practices, do not have a discriminatory effect by continually monitoring all personnel and employment related activities to ensure that the EEO policy and the Contractor's obligations under these specifications are being carried out.
n. Ensure that all facilities and company activities are non-segregated except that separate or single -user toilet and necessary changing facilities must be provided to assure privacy between the sexes.
o. Document and maintain a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and fe male contractor associations and other business associations.
p. Conduct a review, at least annually, of all supervisors' adherence to and performance under the Contractor's EEO policies and affirmative action obligations.

8. Contractors are encouraged to participate in voluntary associations that assist in fulfilling one or more of the affirmative action obligations (Section VIl 7a through 7p).

The efforts of a contractor association, joint contractor -union, contractor-community, or other share group of wh ich the Contractor is a member and participant, may be asserted as fulfilling any one or more of its obligations under Section VIl 7a through 7p of these specifications provided that the Contractor actively participates in the group, makes every effort to assure that the group has a positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program are reflected in the Contractors minority and female workforce participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the Contractor. The obligation to comply, however, is the Contractor's and failure of such a group to fulfill an obligation will not be a defense for the Contractor's noncompliance.

9. A single goal for minorities and a separate single goal for women have been established. The Contractor, however, is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and nonminority. Consequently, the Contractor may be in violation of the Executive order if a particular group is employed in a substantially disparate manner (for example, even though the Contractor has achieved its goals for women generally, the Contractor may be in violation of the Executive order if a specific minority group of women is underutilized).

10. The Contractor must not use the goals and timetables of a ffirmative action standards to discriminate against any person because of race, color, religion, sex, or national origin.

11. The Contractor must not enter into any subcontract with any person or firm debarred from Government contracts pursuant to Executive Order 1 1246.

12. The Contractor must carry out such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension, termination, and cancellation of existing subcontracts as may be imposed or ordered purs uant to Executive Order 11246, as amended, and its implementing regulations, by the Office of Federal Contract Compliance Programs. Any Contractor who fails to carry out such sanctions and penalties will be in violation of these specifications and Executive Order 11246, as amended.
247

82 13. The Contractor must designate a responsible official to monitor all employment related activity to ensure that the company EEO policy is being carried out, to submit reports relating to the provisions hereof as may be required by the Government, and to keep records. Records must at least include for each employee the name, address, telephone numbers, construction trade, union affiliation if any, employee identification number when assigned, social security number, race, sex, sta tus (e.g., mechanic, apprentice, trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records must be maintained in an easy understandable and re trievable form; however, to the degree that existing records satisfy this requirement, Contractors will not be required to maintain separate records.

14. The Contractor, in fulfilling its obligations under these specifications, must implement specific affirmative action steps, at least as extensive as those standards prescribed in Section VIl 7, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If the Contractor fails to comply with the requirements of the Executive order, the implementing regulations, or these specifications, the director will proceed in accordance with 41 CFR Section 604.8.

15. Nothing herein provided will be construed as a limitation upon the application of other laws that establish different standards of compliance or upon the application of requirements for hiring of local or other area residents (e.g., those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program).
248

83 FAITHFUL PERFORMANCE BOND
Bond No.

Premium

NOTICE: TO WHOM IT MAY CONCERN: those we, ,
,
as Principal, and
as Surety, are held and firmly bound unto the City of Garden Grove, (CITY) in the sum of

Lawful money of the United States, for the payment of which we bind heirs, our executors, administrators, successors, and ourselves jointly and severally.

That the Surety's office is located at ,
telephone no. ; the Surety is licensed to do business in the State of California; and the California Insurance Agent's License No., address, and telephone no. are as follows:

License No.:

Address:

Telephone No.:

That the following clause must be completed if, in fact, a non-resident agent for the Surety is a party to the transaction:

Name of non-resident agent:

Non-resident agent's office address:

Telephone No.:

THE CONDITION OF THIS OBLIGATION IS SUCH, that:

1. The Principal has agreed entered into a contract attached hereto, dated the day of , 2024, wi th the CITY OF GARDEN GROVE for VARIOUS RESIDENTIAL STREETS REHABILITATION 2024, CITY PROJECT NO. CP1399293.

2. If the Principal shall well and truly perform, or cause to be performed, each and all of the requirements and obligations of the contract to be performed by the Principal, as set forth in the contract, then this bond shall be null and void; otherwise, it shall remain in full force and effect. In the event that suit is instituted to recover on this bond, the Surety will pay reasonable attorneys' fees.

3. Further, the Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or modification of the contract documents or of work performed shall in any way affect its obligation on this bond, and it does hereby waive notice of any change, extension of time, alteration, or modification of the contract documents, or of work to be performed.

249

84 FAITHFUL PERFORMANCE BOND (Continues)

Executed this day of , 20___

Principal Principal

By:

Surety

By:

Attorney-in-Fact

California Resident Agent

By:

Non-resident Agent - Attorney-in-Fact

STATE OF CALIFORNIA )
)
COUNTY OF ) ss.

On this day of , 20 , before me, a Notary Public in and for said County, residing therein, duly commissioned and sworn, personally appeared known to me to be the Attorney-in-Fact of the , of (Corporation)
, and acknowledged that it executed the attached bond to the (State)
City of Garden Grove as such Attorney-in-Fact and as the free act and deed of the corporation, and that the bond was executed on behalf of the corporation by authority of its Board of Directors.

IN WITNESS WHEREOF, I have herewith set my hand and affixed my Official Seal, the day and year in this certificate first above written.

(Acknowledgment by Non -
resident Agent as Attorney-
in-Fact must be attached.)
Notary Public in and for said County and State
My Commission expires:
250

85 LABOR AND MATERIAL BOND
Bond No.

Premium
NOTICE: TO WHOM IT MAY CONCERN: those we,
,
as Principal, and , as Surety,
are held and firmly bound unto the City of Garden Grove, California ("CITY") in the sum of ____ Dollars ($ ), lawful money of the United States, for the payment of the sum, we bind heirs, our executors, administrators, successors, and ourselves jointly and severally.

License No.:

Address:

Telephone No.:

That the following clause must be completed if, in fact, a non-resident agent for the Surety is a party to the transaction:

Name of non-resident agent:

Non-resident agent's office address:

Telephone No.:

THE CONDITION OF THIS OBLIGATION IS SUCH, that:

1. The Principal has entered into a contract attached hereto, dated day of ________________, 2024, with the CITY OF GARDEN GROVE for VARIOUS RESIDENTIAL STREETS REHABILITATION 2024, CITY PROJECT NO. CP1399293.

2. If the Principal, its heirs, executors, administrators, su ccessors, or assigns, or subcontractors, shall fail to pay for any materials, provisions, provender, or other supplies or teams, implements, or machinery used in, upon, for, or about, the performance of the improvement, or for any work or labor thereon of any kind, or for amounts due under the Unemployment Insurance Code with respect to work or labor, and provided that the claimant shall have complied with the provision of the code, the Surety or Sureties will pay for same in the amount not exceeding the sum specified in this bond; otherwise, the above obligation shall be void. In case suit is brought upon this bond, the Surety will pay reasonable attorneys' fees.

3. The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or modification of the contract documents, or of work performed, shall in any way affect its obligation on this bond, and it does hereby waive notice of any change, extension of time, alteration, or modification of the contract documents, or of work to be performed. 251

86 LABOR AND MATERIAL BOND (Continues)

4. This bond shall inure to the benefit of any and all persons, companies, and corporations entitled to the claims under Civil Code 3181 et seq., so as to give a right of action to them or their assignees in any suit brought upon this bond.

Executed this day of , 20 .

Principal Principal

By:

Surety

By:

Attorney-in-Fact

California Resident Agent

By:

Non-resident Agent - Attorney-in-Fact

STATE OF CALIFORNIA )
)
COUNTY OF ) ss.

On this day of , 20 , before me, a Notary Public in and for said County and State, personally appeared
known to me to be the Attorney-in-Fact of
the , of (Corporation)
, and acknowledged that it executed the attached bond to the (State)
City of Garden Grove as such Attorney-in-Fact and as the free act and deed of the corporation, and that the bond was executed on behalf of the corporation by authority of its Board of Directors.

IN WITNESS WHEREOF, I have herewith set my hand and affixed my Official Seal, the day and year in this certificate first above written.

(Acknowledgment by Non -
resident Agent as Attorney -
in-Fact must be attached.)
Notary Public in and for said County and State
My Commission expires:
252

ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION This Escrow Agreement is made and entered into by and between whose address is ,
hereinafter called "owner", ,
whose address is ,
hereinafter called "contractor", ,
and , whose address
is ,
hereinafter called "escrow agent."
For the consideration hereinafter set forth, the owner, contractor, and escrow agent agree as follows:
(1) Pursuant to Section 22300 of the Public Contract Code o f the State of California, the contractor has the option to deposit securities with the escrow agent as a substitute for retention earnings required to be withheld by the owner pursuant to the construction contract entered into between the owner and contractor for in the amount of _ dated (hereafter referred to as the "contract"). Alternatively, on written request of the contractor, the owner shall make payments of the retention earnings directly to the escrow agent. When the contractor deposits the securities as a substitute for the con tract earnings, the escrow agent shall notify the owner within ten days of the deposit. The market value of the securities at the time of the substitution shall be at least equal to the cash amount then required to be withheld as retention under the terms of the contract between the owner and contractor. Securities shall be held in the name of the, and shall designate the contractor as the beneficial owner.
(2) The owner shall make progress payments to the contractor for those funds which otherwise would be withheld from progress payments pursuant to the contract provision, provided that the escrow agent holds securities in the form and amount specified above. (3) When the owner makes payment of retentions earned directly to the escrow agent, the escrow agent shall hold them for the benefit of the contractor until such time as the escrow created under this contract is terminated. The contractor may direct the investment of the payments into securities. All terms and conditions of this agreement and the rights and responsibilities of the parties shall be equally applicable and binding when the owner pays the escrow agent directly. (4) The contractor shall be responsible for paying all fees for the expenses incurred by the escrow agent in administering the escrow ac count. These expenses and payment terms shall be determined by the contractor and escrow agent.
(5) The interest earned on the securities or the money market accounts held in escrow and all interest on the interest shall be the sole account of contractor and shall be subject to withdrawal by contractor at any time and from time to time without notice to the owner. (6) The contractor shall have the right to withdraw all or any part of the principal in the escrow account only by written notice to the escrow agent accompanied by written authorization from the owner to the escrow agent that the owner consents to the withdrawal of the amount sought to be withdrawn by contractor.
(7) The owner shall have a right to draw upon the securities in the event of default by the contractor. Upon two days' written notice to the escrow agent from the owner of the default, the escrow 253

agent shall immediately convert the securities to cash and shall distribute the cash as instructed by the owner.
(8) Upon receipt of written notification from the owner certifying that the contract is final and complete, and that the contractor has complied with all requirements and procedures applicable to the contract, the escrow agent shall release to the contractor all securities and interest on deposit less escrow fees and charges of the escrow account. The escrow shall be closed immediately upon disbursement of all moneys and securities on deposit and payment of fees and charges. (9) The escrow agent shall rely on the written notifications from the owner and t he contractor pursuant to Sections (1) to (8), inclusive, of this agreement and the owner and contractor shall hold the escrow agent harmless from the escrow agent's release, conversion, and disbursement of the securities and interest as set forth above.
(10) The names of the persons who are authorized to give written notice or to receive written notice on behalf of the owner and on behalf of the contractor in connection with the foregoing, and exemplars of their respective signatures are as follows:

On behalf of the owner: On behalf of the contractor:

Title Title

Name Name

Signature Signature

Address Address

254

On behalf of the escrow agent:

Title Title

Name Name

Signature Signature

Address Address

At the time the escrow account is opened, the owner and contractor shall deliver to the escrow agent a fully executed counterpart of this Agreement.

IN WITNESS WHEREOF, the parties have executed this Agreement by their proper officers on the date first set forth above.

Owner/Contractor Dated:

Title/Title

Approved as to Form
City Attorney

255

Garden Grove City CouncilJuly 9, 2024

Garden Grove City Council
July 9, 2024