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Registration
Number Legal Entity Name RegistrationStart Date
Registration
Expiration Date
Status DBA Name Craft Name
1000003010 BOWMAN ASPHALT, INC. 7/1/23 6/30/25 Active Parking/Highway/Impro vement
1000004812 HARKER INC 7/1/21 6/30/24 Active HARKER STRIPING
AND SIGNAGE
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O@ZE<E<W
AGREEMENT NO. _________
PUBLIC WORKS AGREEMENT
By and Between
CITY OF MCFARLAND
and
Bowman Asphalt, Inc.
-2-
AGREEMENT NO. ___________
PUBLIC WORKS AGREEMENT
BETWEEN
THE CITY OF MCFARLAND
AND
Bowman Asphalt, Inc.
THIS PUBLIC WORKS AGREEMENT (“Agreement”) is made and entered into this 27th day of July, 2023 by and between the CITY OF MCFARLAND, a municipal corporation (“City”) and Bowman Asphalt, Inc., a California Corporation/LLC/Partnership/Etc. (“Contractor”). City and Contractor may sometimes be referred to herein as a “Party” or collectively as the “Parties.”
RECITALS
A. City has sought, by issuance of a Request for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement.
B. Following submission of the lowest responsible and responsive bid for the performance of the services, Contractor was selected by the City to perform those services.
C. Pursuant to the City of McFarland Municipal Code, City has authority to enter into and execute this Agreement.
D. The Parties desire to formalize the selection of Contractor for performance of the services and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1. WORK OF CONTRACTOR
1.1 Scope of Work.
The Contractor shall perform all of the work, furnish all labor, materials, equipment, tools, utility services, and transportation, and comply with all of the specifications and requirements set forth in the Contract Documents for the project entitled 2023 STREET REHABILITATION - VARIOUS LOCATIONS, (“Project”), in accordance with the terms and conditions of this Agreement, which may be referred to as the “services” or “work” hereunder. All such work shall be performed in a good and workmanlike manner, as reasonably determined by the City, and shall be performed in strict compliance with the Contract Documents and all local, state, and federal laws and regulations. As used herein, “Contract Documents” refers to all of the documents included in the solicitation of bids for the Project and Contractor’s bid proposal(s), including but not limited to, the Notice Inviting Bids, Instructions to Bidders, Bid, Federal Provisions, Applicable Federal Wage Decision (if any), General Provisions, Special Provisions, Appendices, Plans, Drawings, and Addenda, and any other documents included, referenced, or incorporated therein. The Contract Documents are incorporated into this Agreement. In the event of any conflict or inconsistency between the terms of the Contract Documents and this Agreement, the terms -3-
of this Agreement shall govern.
1.2 Incorporation of Caltrans Specifications.
The provisions of the Caltrans Standard Specifications (as the same may be updated, amended, or supplemented from time to time, “Standard Specifications”) are incorporated herein, except as explicitly modified by the Contract Documents. The applicable version of the Standard Specifications shall be the version referenced in the Contract Documents, and if no version is referenced in the Contract Documents, the applicable version shall be the most recent version. In the event of any conflict or inconsistency between the provisions of the Standard Specifications and this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Labor and Wage Laws.
(a) Public Work. The Parties acknowledge that the work to be performed under this Agreement is a “public work” as defined in Labor Code Section 1720 and that this Agreement is therefore subject to the requirements of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code relating to public works contracts and the rules and regulations established by the Department of Industrial Relations (“DIR”) implementing such statutes. The work performed under this Agreement is subject to compliance monitoring and enforcement by the DIR. Contractor shall post job site notices, as prescribed by state law and DIR regulations. (b) Registration with DIR. Pursuant to Labor Code Section 1771.1, Contractor and all subcontractors must be registered with, and pay an annual fee to, the DIR prior to and during the performance of any work under this Agreement. Contractor shall notify the City in writing immediately, and in no case more than twenty-four (24) hours, after receiving any information that Contractor’s or any of its subcontractors’ DIR registration status has been suspended, revoked, expired, or otherwise changed. (c) Prevailing Wages. Contractor shall pay prevailing wages as required by Labor Code Section 1771. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages are on file at City Hall and will be made available to any interested Party on request. By initiating any work under this Agreement, Contractor acknowledges receipt of a copy of the DIR determination of the prevailing rate of per diem wages, and Contractor shall post a copy of the same at each job site where work is performed under this Agreement. If this Agreement is subject to the payment of federal prevailing wages under the Davis-Bacon Act (40 U.S.C. § 3141 et seq.), then Contractor shall pay the state or federal prevailing wage applicable to each laborer, whichever is higher. (d) Penalty for Failure to Pay Prevailing Wages. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Contractor shall, as a penalty to the City, forfeit two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Contractor or by any subcontractor. (e) Payroll Records. Contractor shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Contractor and each subcontractor to: keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776; certify and make such payroll records available for inspection as provided by Section 1776; and inform the City of the location of the records.
-4-
(f) Apprentices. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6, and 1777.7 and California Code of Regulations Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects. Contractor shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations. Prior to commencing work under this Agreement, Contractor shall provide City with a copy of the information submitted to any applicable apprenticeship program. Within sixty (60) days after concluding work pursuant to this Agreement, Contractor and each of its subcontractors shall submit to the City a verified statement of the journeyman and apprentice hours performed under this Agreement. (g) Eight-Hour Workday. Contractor acknowledges that eight (8) hours labor constitutes a legal day’s work. Contractor shall comply with and be bound by Labor Code Section 1810. (h) Penalties for Excess Hours. Contractor shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Contractor shall, as a penalty to the City, forfeit twenty-five dollars ($25) for each worker employed in the performance of this Agreement by the Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code Section 1815, work performed by employees of Contractor in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and one-half (1½) times the basic rate of pay. (i) Workers’ Compensation. California Labor Code Sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees if it has employees. In accordance with the provisions of California Labor Code Section 1861, Contractor certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”
(j) Contractor’s Responsibility for Subcontractors. For every subcontractor who will perform work under this Agreement, Contractor shall be responsible for such subcontractor's compliance with Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code and shall make such compliance a requirement in any contract with any subcontractor for work under this Agreement. Contractor shall take all actions necessary to enforce such contractual provisions and ensure subcontractor's compliance, including without limitation, conducting a review of the certified payroll records of the subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages. Contractor shall diligently take corrective action to halt or rectify any such failure by any subcontractor.
1.4 Licenses, Permits, Fees and Assessments.
Contractor shall obtain at its sole cost and expense such licenses, permits, registrations, and approvals as may be required by law for the performance of the services required by this Agreement.
Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor’s performance of the services required by this Agreement, and shall indemnify, defend and hold harmless -5-
City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.
1.5 Familiarity with Work.
By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the Scope of Work to be performed, (ii) has carefully considered how the work should be performed, and (iii) fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder.
1.6 Discovery of Unknown Conditions.
(a) Pursuant to Public Contract Code Section 7104, Contractor shall promptly, and before the following conditions are disturbed, notify the City, in writing, of any: (i) material Contractor believes may be hazardous waste as defined in Section 25117 of the Health & Safety Code required to be removed to a Class I, II, or III disposal site in accordance with existing law; (ii) subsurface, unknown, or latent physical conditions at the Project site, materially different from those indicated by information about the Project site made available to bidders prior to the deadline for submitting bids on the Project; or (iii) unknown physical conditions at the Project site of any unusual nature, different from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement, that will materially affect the performance of Contractor’s services hereunder. (b) City shall promptly investigate the conditions, and if it finds that the conditions do materially differ, or do involve hazardous waste, and cause a decrease or increase in Contractor’s cost of, or the time required for, the performance of any part of the work, the City shall issue a change order in accordance with Section 1.11 of this Agreement.
(c) In the event that a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor's cost of, or time required for, performance of any part of the work, Contractor shall not be excused from any scheduled completion date set, but shall proceed with all work to be performed under this Agreement. Contractor shall retain any and all rights provided either by contract or by law, which pertain to the resolution of disputes and protests between the Parties.
1.7 Unidentified Utilities.
To the extent required by Government Code Section 4215, City will compensate Contractor for the cost of locating, repairing damage not due to the failure of Contractor to exercise reasonable care, and removing or relocating utility facilities not identified by City in the Contract Documents with reasonable accuracy, and for equipment on the Project necessarily idled during such work. Nothing herein shall be deemed to require City to indicate the presence of existing service laterals or appurtenances whenever the presence of such utilities on the Project site can be inferred from the presence of other visible facilities, such as buildings, meters, and junction boxes, on or adjacent to the Project site of the construction; provided, however, nothing herein shall relieve City from identifying main or trunklines in the plans and specifications. If Contractor, while performing the work, discovers utility facilities not identified by City in the plans or specifications, Contractor shall immediately notify City and the utility in writing. This Agreement is subject to Government Code Sections 4126 through 4216.9. Contractor must notify utilities and obtain an identification number before excavation or be subject to liability for damages to subsurface -6-
installations.
1.8 Trench Excavation.
Pursuant to Labor Code Section 6705, if this Agreement is for more than $25,000 and requires the excavation of any trench or trenches five feet or more in depth, Contractor shall submit, in advance of such excavation, a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches. The plan shall be reviewed and accepted by the City, or a registered civil or structural engineer employed by the City to whom authority has been delegated, prior to the excavation. If the plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer.
This Section 1.8 shall not be deemed to allow the use of a shoring, sloping, or protective system less effective than that required by the Construction Safety Orders (set forth in the California Code of Regulations, Title 8, Subchapter 4). This Section 1.8 shall not be construed to impose tort liability on the City or any of its employees. Full compensation for sheeting, shoring, bracing, sloping, and all other provisions required for worker protection shall be considered as included in the contract price shown in the appropriate Bid item in the Contract Documents, and no additional compensation will be allowed therefor.
1.9 Protection and Care of Work and Materials.
The Contractor shall adopt reasonable methods, including providing and maintaining storage facilities, during the life of this Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as caused by City’s own negligence. Stored materials shall be reasonably accessible for inspection. Contractor shall not, without City’s consent, assign, sell, mortgage, hypothecate, or remove equipment or materials which have been installed or delivered and which may be necessary for the completion of the work.
1.10 Warranty.
Contractor warrants all work under this Agreement (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed or corrected and any non-conforming construction or materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in this Agreement, or the Contract Documents, or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance of the Project by the City, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the work or non-conformance of the work to the requirements under this Agreement, commence and prosecute with due diligence all work necessary to fulfill the terms of the warranty at its sole cost and expense. Notwithstanding the foregoing, Contractor shall act as soon as requested by the City in response to any emergency condition or situation. In addition, Contractor shall, at its sole cost and expense, repair, remove and replace any portions of the work (or work of its subcontractors) damaged by its defective work or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor's obligation hereunder to correct defective work shall be reinstated for an additional one-year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of this Agreement. All costs associated with such corrective actions and testing, -7-
including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers, and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Agreement or the Contract Documents, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming work or materials at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.
1.11 Additional Work and Change Orders.
Change orders shall be processed as provided in the Standard Specifications, as may be amended by the Contract Documents and as follows:
The City Manager or their designee shall have authority to fully execute change orders up to any compensation or time extension constraints that may be imposed by the City Council, if any at the time of approval of this agreement.
1.12 Grant Fund Requirements.
(a) Federal Funds; Uniform Requirements. If the Project is funded in whole or in part by federal funds, as indicated in Contract Documents, City and Contractor shall comply with all applicable provisions of the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR Part 200) (“Uniform Requirements”), which are incorporated herein by reference.
In the event of any inconsistency between the applicable Uniform Requirements and the other provisions of the Agreement, the applicable Uniform Requirements shall prevail. (b) Grant Requirements. If the Project is funded in whole or in part by any grant funds, as indicated in the Contract Documents, City and Contractor shall comply with all requirements and conditions of the grant(s), which are incorporated herein by this reference.
1.13 Special Requirements.
Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements,” attached hereto as Exhibit B and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit B and any other provisions of this Agreement, the provisions of Exhibit B shall govern. (If REQUIRED CONTRACT PROVISIONS FOR FEDERAL-AID CONSTRUCTION CONTRACTS applies, attach as Exhibit “B”) ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Contractor the amounts set forth in Contractor’s Bid, attached hereto as Exhibit A and incorporated herein by this reference.
Subject to any additions or deductions that may be made by change order or amendment, and any penalties or damages that may be assessed against Contractor, Contractor shall receive total compensation, -8-
including reimbursement of Contractor’s expenses, of Seven Hundred Ninety-Nine Thousand Five Hundred Sixty-Five dollars and Zero cents ($799,565.00) (“Contract Sum”) for completion of the work. The Contract Sum shall constitute full compensation for furnishing all materials and for doing all the work contemplated and embraced in this Agreement; and also for all loss or damage arising out of the nature of the work, or from the action of the elements, or from any unforeseen difficulties or obstructions which may arise or be encountered in the prosecution of the work until its acceptance by the City, and for all risks of every description connected with the work; also for all expenses incurred by or in consequence of the suspension or discontinuance of work and for well and faithfully completing the work, and the whole thereof, in the manner and according to the plans and specifications, and the requirements of the Contract Documents and this Agreement. The Contract Sum shall be made in the form of progress payments and a final payment as provided in this Section 2 and the Contract Documents unless the Bid or Contract Documents explicitly provide for a lump sum payment.
Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Project Manager in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in Exhibit A. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City. Coordination of the performance of the work with City is a critical component of the services. If Contractor is required to attend additional meetings to facilitate such coordination, Contractor shall not be entitled to any additional compensation for attending said meetings.
2.2 Invoices.
Each month Contractor shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City’s Finance Director. By submitting an invoice for payment under this Agreement, Contractor is certifying compliance with all provisions of this Agreement.
All invoices shall include a copy of Contractor’s Certified Payroll and proof that Certified Payroll has been submitted to the DIR. Contractor shall also submit a list of the prevailing wage rates (including federal prevailing wage rates, if applicable) for all employees and subcontractors providing services under this Agreement, as applicable, with Contractor’s first invoice. If these rates change at any time during the term of this Agreement, Contractor shall submit a new list of rates to the City with its first invoice following the effective date of the rate change.
2.3 Payment.
City shall, as soon as practicable, independently review each invoice submitted by the Contractor to determine whether the work performed, and expenses incurred comply with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Contractor which are disputed by City, City will cause Contractor to be paid within thirty (30) days of receipt of Contractor’s correct and undisputed invoice; however, Contractor acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event that City does not cause Contractor to be paid within thirty (30) days of receipt of an undisputed and properly submitted invoice, Contractor shall be entitled to the payment of interest to the extent allowed under Public Contract Code Section 20104.50. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Contractor, not later than seven (7) days after receipt by the City, for correction and resubmission. Returned invoices shall be accompanied by a document setting forth in writing the reasons why the payment request was rejected. Review and payment by the City of any invoice provided by the Contractor shall not constitute a waiver of any rights or remedies provided -9-
herein or any applicable law.
2.4 Retention; Substitution of Securities.
City will deduct a five percent (5%) retention from all progress payments. In accordance with Public Contract Code Section 22300, which is hereby incorporated into this Agreement, City shall permit the substitution of securities for any moneys withheld by City to ensure performance under this Agreement. The retention held by the City shall be released within sixty (60) days after the date of completion of the work and the Project, as required by Government Code Section 7107. In the event of a dispute between City and Contractor, City may withhold from the final payment an amount not to exceed one hundred fifty percent (150%) of the disputed amount.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Schedule of Performance.
Contractor shall begin work within fifteen (15) calendar days after receiving a Notice to Proceed from the City and the work shall be completed within Thirty (30) consecutive working days from the date on which Contractor received the Notice to Proceed, or otherwise in accordance with any schedule contained in or required to be provided by the Contract Documents, and any revisions thereof approved by the City in writing. Time is of the essence. If the work is not completed within said time period, liquidated damages shall apply as set forth below.
3.2 Force Majeure.
The time period(s) for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10) days of the commencement of such delay notify the Project Manager in writing of the causes of the delay. The Project Manager shall ascertain the facts and the extent of delay and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Project Manager such delay is justified. The Project Manager’s determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor’s sole remedy being extension of this Agreement pursuant to this Section.
3.3 Liquidated Damages.
Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City the sum of ONE THOUSAND DOLLARS AND ZERO CENTS ($1,000.00) as liquidated damages for each working day of delay in the performance of any service required hereunder. The City may withhold any accrued liquidated damages from any monies payable on account of services performed by the Contractor. To the extent required by Government Code Section 4215, Contractor shall not be assessed liquidated damages for delay in completion of the work when such delay was caused by the failure of the City or owner of the utility to provide for removal or relocation of utility facilities. -10-
3.4 Inspection and Final Acceptance.
City may inspect and accept or reject any of Contractor’s work under this Agreement, either during performance or when completed. If City finds that Contractor’s work does not meet the requirements and standards provided in the Bid Document, Contractor shall remedy any defects in the work at Contractor’s sole expense following notice by the City. City shall accept work by a timely written acceptance, otherwise work shall be deemed to have been rejected. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as to amount to fraud. Acceptance of any work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Articles 1 and 5, pertaining to warranty and indemnification and insurance, respectively.
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Contractor.
The following principals of Contractor (“Principals”) are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability, and reputation of the foregoing Principals were a substantial inducement for City to enter into this Agreement. Therefore, the Principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. All personnel of Contractor, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals.
For purposes of this Agreement, the Principals may not be replaced, nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. Additionally, Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor’s staff and subcontractors, if any, assigned to perform the services required under this Agreement. Contractor shall notify City of any changes in Contractor’s staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance.
4.2 Status of Contractor.
Contractor shall have no authority to bind City in any manner, or to incur any obligation, debt, or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City.
Contractor shall not at any time or in any manner represent that Contractor or any of Contractor’s officers, employees, or agents are in any manner officials, officers, employees, or agents of City. Neither Contractor, nor any of Contractor’s officers, employees, or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Contractor expressly waives any claim Contractor may have to any such rights.
4.3 Project Manager.
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The “Project Manager” for the City shall be the City Engineer or any other person as may be designated by the Project Manager. It shall be the Contractor’s responsibility to assure that the Project Manager is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Project Manager. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Project Manager. The Project Manager shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4.4 Independent Contractor.
Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in, or authority over, the selection, discharge, supervision or control of Contractor’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor.
4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Contractor, its Principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. All subcontractors shall obtain, at its or Contractor’s expense, such licenses, permits, registrations and approvals (including from the City) as may be required by law for the performance of any services or work under this Agreement. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City.
ARTICLE 5. INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance Coverages.
Without limiting Contractor’s indemnification obligation to the City (as set forth below), and prior to commencement of any services under this Agreement, Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and, in a form, satisfactory to City.
(a) General liability insurance. Contractor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and -12-
property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted. (b) Automobile liability insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. (c) Professional liability (errors & omissions) insurance. Contractor shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Contractor agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement.
(d) Workers’ compensation insurance. Contractor shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000). (e) Builder’s Risk Insurance. Contractor shall maintain Builder’s Risk (Course of Construction) insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the Project and no coinsurance penalty provisions or provisional limit provisions. The policy must include: (1) coverage for any ensuing loss from faulty workmanship, nonconforming work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) ordinance or law coverage for contingent rebuilding, demolition, and increased costs of construction; (5) transit coverage (unless insured by the supplier or receiving contractor), with sub-limits sufficient to insure the full replacement value of any key equipment item; (6) ocean marine cargo coverage insuring any Project materials or supplies, if applicable; (7) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Project site or any staging area. (f) Pollution Liability Insurance. Contractor shall maintain Environmental Impairment Liability insurance, written on a Contractor’s Pollution Liability form or other form acceptable to City providing coverage for liability arising out of sudden, accidental, and gradual pollution and remediation.
The policy limit shall be no less than $1,000,000 per claim and in the aggregate. All activities contemplated in this Agreement shall be specifically scheduled on the policy as “covered operations.” The policy shall provide coverage for the hauling of waste from the Project site to the final disposal location, including non-owned disposal sites.
5.2 General Insurance Requirements.
(a) Subcontractors. Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall include all of the requirements stated herein. (b) Proof of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all -13-
times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
(c) Duration of Coverage. Contractor shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the services hereunder by Contractor, its agents, representatives, employees or subcontractors.
(d) Primary/noncontributing. Coverage provided by Contractor shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non- contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured. (e) City’s Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary, and any premium paid by City will be promptly reimbursed by Contractor or City will withhold amounts sufficient to pay the premium from any payments due to the Contractor. In the alternative, City may cancel this Agreement. (f) Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City and shall require similar written express waivers and insurance clauses from each of its subcontractors.
(g) Enforcement of Contract Provisions (non-estoppel). Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. (h) Requirements Not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any Party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. (i) Notice of Cancellation. Contractor agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. (j) Additional Insured Status. General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies. (k) Prohibition of Undisclosed Coverage Limitations. None of the coverages required -14-
herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. (l) Separation of Insureds. A severability of interests provision must apply for all additional insureds ensuring that Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
(m) Pass Through Clause. Contractor agrees to ensure that its subconsultants, subcontractors, and any other Party involved with the Project who is brought onto or involved in the Project by Contractor, provide the same minimum insurance coverage and endorsements required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Section. Contractor agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the Project will be submitted to City for review.
(n) Agency’s Right to Revise Specifications. The City reserves the right at any time during the term of this Agreement to change the amounts and types of insurance required by giving the Contractor ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Contractor, the City and Contractor may renegotiate Contractor’s compensation. (o) Self-Insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City.
(p) Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. (q) Additional Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
5.3 Indemnification.
Contractor shall indemnify, defend with legal counsel approved by City, and hold harmless City, its officers, officials, employees, agents, representatives, and volunteers (collectively, “Indemnitees”) from and against all liability, loss, damage, expense, cost (including, without limitation, reasonable legal counsel fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with Contractor’s (or its employees’, officers’, agents’, or subcontractor’s) performance of the work hereunder or its failure to comply with any of its obligations contained in this Agreement, including any injuries to or death of any person (including, but not limited to, workers and the public), or damage to property resulting from the construction of the work or by or in consequence of any negligence regarding the work, use of improper materials or equipment in construction of the work, negligence or refusal of Contractor to faithfully perform the work and all of Contractor's obligations under this Agreement, or by or on account of any act or omission by the Contractor (or it employees /agents) or its subcontractors (or their employees / agents) during the progress of the work or at any time before the completion and final acceptance of the Project by the City, except with respect to any loss or damage which is caused by the sole or active negligence or willful misconduct of the City as determined by a court -15-
of competent jurisdiction. Should conflict of interest principles preclude a single legal counsel from representing both City and Contractor, or should City otherwise find Contractor’s legal counsel unacceptable, then Contractor shall reimburse the City its costs of defense, including, without limitation, reasonable attorneys’ fees, expert fees and all other costs and fees of litigation. Contractor shall promptly pay any final judgment rendered against the City (and its officers, officials, employees and volunteers) with respect to claims determined by a trier of fact to have been the result of the Contractor’s negligent, reckless or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination or expiration of this Agreement.
Contractor’s obligations under this Section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by the City or any Indemnitees. In instances where City or its Indemnitees is shown to have been actively negligent and where City’s active negligence accounts for only a percentage of the liability involved, the obligation of Contractor will be for that entire portion or percentage of liability not attributable to the active negligence of the City.
5.4 Notification of Third-Party Claims.
City shall timely notify Contractor of the receipt of any third-Party claim relating to the work under this Agreement. City shall be entitled to recover from Contractor its reasonable costs incurred in providing such notification.
5.5 Performance and Labor Bonds.
Concurrently with execution of this Agreement Contractor shall deliver to the City, the following in the form required under the Contract Documents or otherwise by the City Clerk:
(a) A performance bond in the amount of the Contract Sum of this Agreement, which secures the faithful performance of this Agreement (“Performance Bond”). (b) A labor and materials bond in the amount of the Contract Sum of this Agreement, which secures the payment of all persons furnishing labor and/or materials in connection with the work under this Agreement (“Payment Bond”).
(c) A warranty bond, guaranteeing the Contractor’s warranty under Section 1.11 of this Agreement, in an amount not less than 5% of the Contract Sum.
The bonds shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his/her power of attorney. The bonds shall be unconditional and remain in force during the entire term of this Agreement.
City shall release the Performance Bond and Payment Bond when the following have occurred:
(a) Contractor has made a written request for release and provided evidence of satisfaction of all other requirements under Article 5 of this Agreement, (b) the work for the Project has be finally accepted by the City, and (c) after passage of the time within which lien claims are required to be made pursuant to applicable laws; if lien claims have been timely filed, City shall hold the Payment Bond until such claims have been resolved, Contractor has provided statutory bond, or otherwise as required by applicable law.
5.6 Sufficiency of Insurer or Surety.
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Insurance and bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better in the most recent edition of Best’s Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City (“Risk Manager”) due to unique circumstances. If this Agreement continues for more than 3 years duration, or in the event the Risk Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies and the performance bond required under Article 5 of this Agreement may be changed accordingly upon receipt of written notice from the Risk Manager.
ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
Contractor shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies, certified and accurate copies of payroll records in compliance with all applicable laws, or other documents relating to the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Project Manager to evaluate the performance of such services.
Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Project Manager shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of 3 years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Contractor’s business, custody of the books and records may be given to City, and access shall be provided by Contractor’s successor in interest.
Notwithstanding the above, the Contractor shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
6.2 Reports.
Contractor shall periodically prepare and submit to the Project Manager such reports concerning the performance of the services required by this Agreement as the Project Manager shall require.
Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Project Manager of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Project Manager or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents -17-
and materials hereunder. Any use, reuse, or assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City’s sole risk and without liability to Contractor, and Contractor’s guarantee and warranties shall not extend to such use, reuse, or assignment. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. Moreover, Contractor with respect to any documents and materials that may qualify as “works made for hire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for the City.
6.4 Confidentiality and Release of Information.
(a) Information gained or work product produced by Contractor in its performance of this Agreement shall be considered confidential unless such information is in the public domain or already known to Contractor. Contractor shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Project Manager. (b) Contractor, its officers, employees, agents, or subcontractors, shall not, without prior written authorization from the Project Manager or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Contractor gives City notice of such court order or subpoena.
(c) If Contractor, or any officer, employee, agent, or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any damages, costs and fees, including attorneys’ fees, caused by or incurred as a result of Contractor’s conduct. (d) Contractor shall promptly notify City should Contractor, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any Party regarding this Agreement and the work performed with respect to the Project. City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement shall be interpreted, construed, and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Fresno, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of Fresno, State of California. -18-
7.2 Termination.
The City may terminate this Agreement and be relieved of the payment of any consideration to Contractor should Contractor fail to perform the covenants herein contained or contained in the Specifications at the time and in the manner as required. In the event of such termination, the City may proceed with the work in any manner deemed proper by the City. The cost to the City shall be deducted from any sum due the Contractor under this Agreement, and the balance, if any, shall be paid to the Contractor upon demand.
7.3 Dispute Resolution Process.
(a) Section 20104 et seq. of the California Public Contract Code prescribes a process utilizing informal conferences, non-binding judicial-supervised mediation, and judicial arbitration to resolve disputes on construction claims of $375,000 or less. Additionally, Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims. The intent of this Section is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code. This Section shall be construed to be consistent with said statutes. (b) For purposes of these procedures, “claim” means a separate demand by the Contractor, after the City has denied Contractor’s timely and duly made request for payment for extra work and/or a time extension, for (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 otherwise expressly provided for or the Contractor is not otherwise entitled to, or (C) an amount the payment of which is disputed by the City.
(c) The following requirements apply to all claims to which this Section applies:
i. Claim Submittal. The claim shall be in writing and include the documents necessary to substantiate the claim. Claims governed by this procedure must be filed on or before the date of final payment. Nothing in this Section is intended to extend the time limit or supersede notice requirements otherwise provided in this Agreement for the filing of claims, including all requirements pertaining to compensation or payment for extra work, disputed work, and/or changed conditions. Failure to follow such contractual requirements shall bar any claims or subsequent lawsuits for compensation or payment thereon.
ii. Supporting Documentation. The Contractor shall submit all claims in the following format:
1. Summary of the claim, including references to the specific Bid Document provisions or provisions under this Agreement upon which the claim is based.
2. List of documents relating to claim: (a) Specifications, (b) Drawings, (c) Clarifications (Requests for Information), (d) Schedules, and (e) Other.
3. Chronology of events and correspondence related to the claim.
4. Statement of grounds for the claim.
5. Analysis of the claim’s cost, if any.
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6. Analysis of the claim’s time/schedule impact, if any. (d) City’s Response. Upon receipt of a claim pursuant to this Section, City shall conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall provide the Contractor a written statement identifying what portion of the claim is disputed and what portion is undisputed. Any payment due on an undisputed portion of the claim will be processed and made within 60 days after the City issues its written statement.
i. If the City needs approval from the City Council to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the claim, and the City Council does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a claim sent by registered mail or certified mail, return receipt requested, the City shall have up to three days following the next duly publicly noticed meeting of the City Council after the 45-day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputed portion.
ii. Within 30 days of receipt of a claim, the City may request in writing additional documentation supporting the claim or relating to defenses or claims the City may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of City and the Contractor. iii. The City’s written response to the claim, as further documented, shall be submitted to the Contractor within 30 days (if the claim is less than $50,000, within 15 days) after receipt of the further documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation, whichever is greater. (e) Meet and Confer. If the Contractor disputes the City’s written response, or the City fails to respond within the time prescribed, the Contractor may so notify the City, in writing, either within 15 days of receipt of the City’s response or within 15 days of the City’s failure to respond within the time prescribed, respectively, and demand an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand, the City shall schedule a meet and confer conference within 30 days for settlement of the dispute.
(f) Mediation. Within 10 business days following the conclusion of the meet and confer conference, if the claim or any portion of the claim remains in dispute, the City shall provide the Contractor a written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the City issues its written statement. Any disputed portion of the claim, as identified by the contractor in writing, shall be submitted to nonbinding mediation, with the City and the Contractor sharing the associated costs equally. The City and Contractor shall mutually agree to a mediator within ten (10) business days after the disputed portion of the claim has been identified in writing, unless the Parties agree to select a mediator at a later time.
i. If the Parties cannot agree upon a mediator, each Party shall select a mediator and those mediators shall select a qualified neutral third Party to mediate with regard to the disputed portion of the claim. Each Party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator.
ii. For purposes of this Section, mediation includes any nonbinding process, -20-
including, but not limited to, neutral evaluation or a dispute review board, in which an independent third Party or board assists the Parties in dispute resolution through negotiation or by issuance of an evaluation.
Any mediation utilized shall conform to the timeframes in this Section. iii. Unless otherwise agreed to by the City and the Contractor in writing, the mediation conducted pursuant to this Section shall excuse any further obligation under Public Contract Code Section 20104.4 to mediate after litigation has been commenced. iv. All unresolved claims shall be considered jointly in a single mediation, unless a new unrelated claim arises after mediation is completed. (g) City’s Responses. The City’s failure to respond to a claim from the Contractor within the time periods described in this Section or to otherwise meet the time requirements of this Section shall result in the claim being deemed rejected in its entirety. A claim that is denied by reason of the City’s failure to have responded to a claim, or its failure to otherwise meet the time requirements of this Section, shall not constitute and adverse finding with regard to the merits of the claim or the responsibility of qualifications of the Contractor. City’s failure to respond shall not waive City’s rights to any subsequent procedures for the resolution of disputed claims.
(h) Government Code Claims. If following the mediation, the claim or any portion remains in dispute, the Contractor must comply with the claim procedures set forth in Government Code Section 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, construction claims, and/or changed conditions, including any required mediation, have been followed by Contractor. If no such Government Code claim is submitted, or if the prerequisite contractual requirements are not satisfied, no action against the City may be filed. A Government Code claim must be filed no earlier than the date that Contractor completes all contractual prerequisites to filing a Government Code claim, including any required mediation. A Government Code claim shall be inclusive of all unresolved claims unless a new unrelated claim arises after the Government Code claim is submitted. For purposes of Government Code Section 900 et seq., the running of the period of time within which a claim must be filed shall be tolled from the time the Contractor submits his or her written claim to the City until the time the claim is denied, including any period of time utilized by the meet and confer conference or mediation that does not result in a complete resolutions of all claims.
(i) Civil Actions for Claims of $375,000 or Less. The following procedures are established for all civil actions filed to resolve claims totaling $375,000 or less:
i. Within 60 days, but no earlier than 30 days, following the filing or responsive pleadings, the court shall submit the matter to non-binding mediation unless waived by mutual stipulation of both Parties or unless mediation was held prior to commencement of the action in accordance with Public Contract Code Section 9204 and the procedures in this Section. The mediation process shall provide for the selection within 15 days by both Parties of a disinterested third person as mediator, shall be commenced within 30 days of the submittal, and shall be concluded within 15 days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court.
ii. If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1141.11 of that code. The Civil Discovery Act of 1986 (Article -21-
3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration.
iii. Upon stipulation of the Parties, arbitrators appointed for these purposes shall be experienced in construction law, and, upon stipulation of the Parties, mediators and arbitrators shall be paid necessary and reasonable hourly rates of pay not to exceed their customary rate, and such fees and expenses shall be paid equally by the Parties, except in the case of arbitration where the arbitrator, for good cause, determines a different division.
iv. In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, any Party who after receiving an arbitration award requests a trial de novo but does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, pay the reasonable attorneys’ fees of the other Party arising out of the trial de novo.
7.4 Waiver.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Contractor shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
7.6 Unfair Business Practices Claims.
Pursuant to Public Contract Code Section 7103.5, in entering into this Agreement, Contractor offers and agrees to assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services or materials related to this Agreement. This assignment shall be made and become effective at the time the City tenders final payment to the Contractor without further acknowledgment by the Parties.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the -22-
Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest.
Contractor covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contractor’s performance of services under this Agreement. Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Project Manager. Contractor agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to this Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay or give any third Party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination.
Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class in the performance of this Agreement. Contractor shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class.
8.4 Unauthorized Aliens.
Contractor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Contractor so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Provisions Required By Law.
Each and every provision of law and clause required by law to be inserted in this Agreement shall be deemed to be inserted herein, and this Agreement shall be read and enforced as though it were included herein. If through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon application of either Party, this Agreement shall forthwith be amended to make such insertion or correction.
9.2 Notices.
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Any notice, demand, request, document, consent, approval, or communication either Party desires or is required to give to the other Party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Project Manager (with her/his name and City title), City of McFarland, 401 W Kern Ave, McFarland, CA 93250, and in the case of the Contractor, to the person at the address designated on the execution page of this Agreement. Either Party may change its address by notifying the other Party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. All correspondence relating to this Agreement shall be serialized consecutively.
9.3 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
9.4 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
9.5 Integration; Amendment.
This Agreement, together with the documents incorporated herein (including the Standard Specifications and the Contract Documents) and the exhibits attached hereto constitutes the entire, complete, and exclusive expression of the understanding of the Parties with respect to the subject matter hereof. It is understood that there are no oral agreements between the Parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, and understandings, if any, between the Parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Contractor and by the City Council. The Parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
9.6 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
9.7 Warranty & Representation of Non-Collusion.
No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any -24-
corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of “financial interest” shall be consistent with State law and shall not include interests found to be “remote” or “non-interests” pursuant to Government Code Sections 1091 or 1091.5. Contractor warrants and represents that it has not paid or given, and will not pay or give, to any third Party including, but not limited to, any City official, officer, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement. Contractor further warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third Party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being awarded any agreement. Contractor is aware of and understands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effect.
9.8 Corporate Authority.
The persons executing this Agreement on behalf of the parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which said Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.
CITY:
CITY OF MCFARLAND, a municipal
corporation
Kenny Williams, City Manager
ATTEST:
Francisca Alvarado, City Clerk
APPROVED AS TO FORM:
HODGES LAW GROUP
By:
Nathan M. Hodges, City Attorney
CONTRACTOR:
BOWMAN ASPHALT, INC.
By:
Name:
By:
Name:
Address:
Two corporate officer signatures required when Contractor is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONTRACTOR’S SIGNATURES SHALL BE DULY NOTARIZED, AND
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE
BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONTRACTOR’S BUSINESS ENTITY.
PAGE LEFT BLANK INTENTIONALLY
EXHIBIT A
CONTRACTOR’S BID
EXHIBIT B
SPECIAL REQUIREMENTS
PERFORMANCE BOND
WHEREAS, the CITY OF MCFARLAND, (“City”), has awarded to Bowman Asphalt, Inc., as Contractor (“Principal”), a Contract for the work entitled and described as follows: 2023 STREET REHABILITATION - VARIOUS LOCATIONS;
WHEREAS, the Contractor is required under the terms of said Contract to furnish a bond for the faithful performance of the Contract;
NOW, THEREFORE, we the undersigned Contractor and Surety, are held and firmly bound unto the City in the sum of Seven Hundred Ninety-Nine Thousand Five Hundred Sixty-Five dollars and Zero cents ($799,565.00), this amount being not less than one hundred percent (100%) of the total Contract price, lawful money of the United States of America, for payment of which sum well and truly be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, firmly by these presents. In case suit is brought upon this bond, the Surety will pay a reasonable attorney’s fee to the City in an amount to be fixed by the court.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT, if the hereby bound Contractor, or its heirs, executors, administrators, successors, or assigns, shall in all things stand and abide by, well and truly keep and perform all undertakings, terms, covenants, conditions, and agreements in the said Contract and any alteration thereof, made as therein provided, all within the time and in the manner designated and in all respects according to their true intent and meaning, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
FURTHER, the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or modification of the Contract Documents or of the work to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of such change, extension of time, alteration, or modification of the Contract Documents or of the work to be performed thereunder.
Executed on , 2023 PRINCIPAL
By:
(Seal Of Corporation) Name:
Title:
(Attach Acknowledgment of Authorized Representative of Principal) Any claims under this bond may be addressed to:
Name and address of Surety:
Name and address of Surety's agent for service of process in California, if different from above:
Telephone number of Surety’s Agent in California:
(Attach Acknowledgment)
SURETY
By:
(Attorney-in-Fact)
APPROVED:
(Attorney for CITY)
NOTICE:
No substitution or revision to this bond form will be accepted. Sureties must be authorized to do business in and have an agent for service of process in California. Certified copy of Power of Attorney must be attached.
PAYMENT BOND
(Labor and Material Bond)
WHEREAS, the CITY OF MCFARLAND, (“City”), has awarded to Bowman Asphalt, Inc., as Contractor (“Principal”), a Contract for the work entitled and described as follows: 2023 STREET REHABILITATION - VARIOUS LOCATIONS;
WHEREAS, said Contractor is required to furnish a bond in conjunction with said Contract, to secure the payment of claims of laborers, mechanics, material men, and other persons as provided by law; NOW, THEREFORE, we the undersigned Contractor and Surety, are held and firmly bound unto the City in the sum of Seven Hundred Ninety-Nine Thousand Five Hundred Sixty-Five dollars and Zero cents ($799,565.00), this amount being not less than one hundred percent (100%) of the total Contract price, lawful money of the United States of America, for payment of which sum well and truly be made we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, firmly by these presents. In case suit is brought upon this bond, the Surety will pay a reasonable attorney’s fee to the City in an amount to be fixed by the court.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT, if said Contractor, its heirs, executors, administrators, successors, assigns, or subcontractor fails to pay: (1) for any work, materials, services, provisions, provender, or other supplies, or for the use of implements of machinery, used in, upon, for, or about the performance of the work to be done, or for any work or labor thereon of any kind; (2) for work performed by any of the persons named in Civil Code Section 9100; (3) for any amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract; and/or (4) for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the Contractor and/or its subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, then the Surety herein will pay for the same in an amount not exceeding the sum specified in this bond, otherwise the above obligation shall be void.
This bond shall inure to the benefit of any of the persons named in Civil Code Section 9100 so as to give a right of action to such persons or their assigns in any suit brought upon the bond. Moreover, if the City or any entity or person entitled to file stop payment notices is required to engage the services of an attorney in connection with a lawsuit concerning the enforcement of this bond, Contractor / Principal and surety shall pay City or any entity or person reasonable attorney’s fees incurred, but in no event shall the surety be liable in the aggregate for more than the penal sum of this Payment Bond.
Said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or modification of the Contract Documents or of the work to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of such change, extension of time, alteration, or modification of the Contract Documents or of the work to be performed thereunder. ///
///
///
Executed on , 2023 PRINCIPAL
By:
(Seal Of Corporation) Name:
Title:
(Attach Acknowledgment of Authorized Representative of Principal) Any claims under this bond may be addressed to:
Name and address of Surety:
Name and address of Surety's agent for service of process in California, if different from above:
Telephone number of Surety’s Agent in California:
(Attach Acknowledgment)
SURETY
By:
(Attorney-in-Fact)
APPROVED:
(Attorney for CITY)
NOTICE:
No substitution or revision to this bond form will be accepted. Sureties must be authorized to do business in and have an agent for service of process in California. Certified copy of Power of Attorney must be attached.
WORKERS COMPENSATION INSURANCE CERTIFICATE
Description of Contract: City of McFarland
Project: 2023 STREET REHABILITATION - VARIOUS LOCATIONS Type of Insurance: Workers' Compensation and Employers' Liability Insurance THIS IS TO CERTIFY that the following policy has been issued by the below-stated company in conformance with the requirements of Article 5 of the Contract and is in force at this time, and is in a form approved by the Insurance Commissioner.
The Company will give at least 30 days' written notice to the City and Engineer/Architect prior to any cancellation of said policy.
POLICY NUMBER EXPIRATION DATE LIMITS OF LIABILITY
Workers' Compensation: Statutory Limits Under
the Laws of the State of California
Employers' Liability:
$ Each Accident
$ Disease - Policy Limit
$ Disease - Each Employee
Named Insured (Contractor) Insurance Company
Street Number Street Number
City and State City and State
By:
(Company Representative)
(SEE NOTICE ON NEXT PAGE)
Insurance Company Agent for Service
of Process in California:
Name
Agency
Street Number
City and State
Telephone Number
This certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend, or alter the coverage afforded by the policy listed herein.
This is to certify that the policy has been issued to the named insured for the policy period indicated, notwithstanding any requirement, term, or condition of any contract or other document with respect to which this certificate may be issued or may pertain, the insurance afforded by the policy described herein is subject to all the terms, exclusions, and conditions of such policy.
NOTICE:
No substitution or revision to the above certificate form will be accepted. If the insurance called for is provided by more than one insurance company, a separate certificate in the exact above form shall be provided for each insurance company.
BHT Job # 22603, 22604 22605
BID OPENING: JULY 13, 2023 @ 2:15 PMSIX (6) BIDS TOTAL RECEIVED. Three (3) Lowest Bids Shown ITEM UNIT OF EST. UNIT TOTAL UNIT TOTAL UNIT TOTAL UNIT TOTAL NO. MEASURE QNTY. COST COST COST COST COST COST COST COST 1 SITE DEMOLITION, HAUL-OFF EXCESS MATERIAL L.S. 1 $ 40,000.00 40,000.00 $ 42,345.05 $ 42,345.05 $ 62,580.00 $ 62,580.00 $ 16,000.00 $ 16,000.00 $ 2 COLD PLANE ± 3" OF EXISTING SURFACE, PROOF ROLL SUBGRADE S.F. 210,283 $ 94,627.00 0.45 $ 0.40 $ 84,113.20 $ 0.20 $ 42,056.60 $ 0.40 $ 84,113.20 $ 3 TYPE B HOT MIX ASPHALT TON 4100 $ 451,000.00 110.00 $ 91.00 $ 373,100.00 $ 98.00 $ 401,800.00 $ 120.00 $ 492,000.00 $ 4 APPLY FOG SEAL ON NEW PAVEMENT L.S. 1 $ 7,500.00 7,500.00 $ 6,400.00 $ 6,400.00 $ 9,000.00 $ 9,000.00 $ 10,000.00 $ 10,000.00 $ 5 INSTALL CURB & GUTTER - (INCLUDES SAWCUT, LAYOUT, DEMOLITION OF EXISTING IMPROVEMENTS, SCARIFY 12" NATIVE MATERIAL, GRADE, & COMPACT TO 90%) L.F. 602 $ 42,140.00 70.00 $ 100.00 $ 60,200.00 $ 92.00 $ 55,384.00 $ 95.00 $ 57,190.00 $ 6 INSTALL ADA CURB RAMP (INCLUDES SAWCUT, LAYOUT, DEMOLITION OF EXISTING IMPROVEMENTS, SCARIFY 12" NATIVE MATERIAL, GRADE, & COMPACT TO 90%) EA. 17 $ 76,500.00 4,500.00 $ 5,255.00 $ 89,335.00 $ 4,353.00 $ 74,001.00 $ 4,000.00 $ 68,000.00 $ 7 INSTALL 8" THICK CONCRETE APRON (INCLUDES SAWCUT, LAYOUT, DEMOLITION OF EXISTING IMPROVEMENTS, SCARIFY 12" NATIVE MATERIAL, GRADE, & COMPACT TO 90%) S.F. 62 $ 2,480.00 40.00 $ 49.00 $ 3,038.00 $ 92.50 $ 5,735.00 $ 95.00 $ 5,890.00 $ 8 INSTALL WHITE THERMOPLASTIC PAVEMENT MARKINGS S.F. 352 $ 5,280.00 15.00 $ 14.00 $ 4,928.00 $ 10.00 $ 3,520.00 $ 10.00 $ 3,520.00 $ 9 INSTALL LIMIT LINE - THERMOPLASTIC L.F. 331 $ 1,986.00 6.00 $ 3.75 $ 1,241.25 $ 6.00 $ 1,986.00 $ 6.00 $ 1,986.00 $ 10 INSTALL 12" YELLOW CROSSWALK LINE - THERMOPLASTIC L.F. 334 $ 2,672.00 8.00 $ 4.00 $ 1,336.00 $ 6.00 $ 2,004.00 $ 6.00 $ 2,004.00 $ 11 INSTALL 6" YELLOW CENTER LINE (DETAIL 2) - THERMOPLASTIC L.F. 4818 $ 9,636.00 2.00 $ 1.00 $ 4,818.00 $ 2.00 $ 9,636.00 $ 2.00 $ 9,636.00 $ 12 INSTALL 6" YELLOW CENTER LINE (DETAIL 22) - THERMOPLASTIC L.F. 1300 $ 6,500.00 5.00 $ 2.50 $ 3,250.00 $ 3.25 $ 4,225.00 $ 3.00 $ 3,900.00 $ 13 INSTALL ON-STREET PARKING STALL STRIPING L.F. 353 $ 2,118.00 6.00 $ 3.50 $ 1,235.50 $ 3.50 $ 1,235.50 $ 4.00 $ 1,412.00 $ 14 FURNISH AND INSTALL SOLAR-POWERED FLASHING LED STOP SIGN - R1-1 (30"X30") EA. 15 $ 45,000.00 3,000.00 $ 3,000.00 $ 45,000.00 $ 2,500.00 $ 37,500.00 $ 2,600.00 $ 39,000.00 $ 15 FURNISH AND INSTALL - PROJECT FUNDING SIGN FOR SB1 - C48 (CA) (48"x30") EA. 6 $ 4,800.00 800.00 $ 950.00 $ 5,700.00 $ 1,000.00 $ 6,000.00 $ 500.00 $ 3,000.00 $ 16 SALVAGE/RE-INSTALL EXISTING SIGN EA. 14 $ 2,800.00 200.00 $ 375.00 $ 5,250.00 $ 270.00 $ 3,780.00 $ 250.00 $ 3,500.00 $ 17 FURNISH AND INSTALL BLUE FIRE HYDRANT MARKER EA. 2 $ 50.00 25.00 $ 25.00 $ 50.00 $ 14.00 $ 28.00 $ 400.00 $ 800.00 $ 18 ADJUST SEWER MANHOLE TO NEW GRADE EA. 8 $ 16,000.00 2,000.00 $ 1,700.00 $ 13,600.00 $ 2,160.00 $ 17,280.00 $ 900.00 $ 7,200.00 $ 19 ADJUST MONUMENT/WATER VALVE TO NEW GRADE EA. 11 $ 19,250.00 1,750.00 $ 1,400.00 $ 15,400.00 $ 1,615.00 $ 17,765.00 $ 900.00 $ 9,900.00 $ 20 FURNISH AND INSTALL TREE ROOT BARRIER L.F. 17 $ 850.00 50.00 $ 225.00 $ 3,825.00 $ 162.00 $ 2,754.00 $ 160.00 $ 2,720.00 $ 21 RELOCATE/ADJUST IRRIGATION SYSTEM - IN KIND L.F. 60 $ 3,000.00 50.00 $ 40.00 $ 2,400.00 $ 52.00 $ 3,120.00 $ 50.00 $ 3,000.00 $ 22 PREPARE AND IMPLEMENT SWPPP L.S. 1 $ 5,000.00 5,000.00 $ 3,000.00 $ 3,000.00 $ 12,000.00 $ 12,000.00 $ 4,000.00 $ 4,000.00 $ 23 TEMPORARY TRAFFIC CONTROL L.S. 1 $ 40,000.00 40,000.00 $ 30,000.00 $ 30,000.00 $ 32,000.00 $ 32,000.00 $ 22,000.00 $ 22,000.00 $ Date Updated: 07/14/23. By: JMP TOTAL BASE BID: 879,189.00 $ $ 805,390.10 799,565.00 $ 850,771.20 $ 123
Emmett Valley Construction
Fresno, CA (559) 408‐5908
Lic No. 913590
ITEM DESCRIPTION
CITY OF MCFARLAND - BID SUMMARY
2023 STREET REHABILITATION - VARIOUS LOCATIONS
Engineer's Estimate
Bowman Asphalt, Inc
Bakersfield, CA (661) 334‐1356
Lic No. 862672
Central Valley Asphalt
Lindsay, CA (559) 562‐7802
Lic No. 777434
BHT ENGINEERING, INC.
Civil Engineering & Construction Management
218 S. “H” Street, Ste. 201
Bakersfield, CA 93304
(661) 558-4641
T:\6-McFARLAND\DOC\2022 Projects\22603 - Ebell St - Woodruff to Mast\BIDDING PHASE\Low Bidder Qualification\McFarland - 2023 Street Rehab - Low Bid Analysis.doc Page 1 of 2
Memorandum
Transmitted by email on 07/21/23
[email protected]
[email protected]
TO: Florentine S. Ortiz
City of McFarland, Public Works Director
401 W. Kern Ave.
McFarland, CA 93250
FROM: Juan M. Pantoja
Project Manager / Engineer
DATE: July 21, 2023
SUBJECT: Lowest Responsive Bid Analysis for the 2023 Street Rehabilitation - Various Locations, project.
A. The City of McFarland received a total of SIX (6) bids for the subject project. Bids were opened on July 13, 2023 at 2:15 pm, by the City Clerk, Francisca Alvarado. Bids ranged from a low of $799,565.00. to a high of $964,188.00; with an average bid of $881,861.77. The 6 received bids are:
Company Bid Amount
Bowman Asphalt $ 799,565.00
Central Valley Asphalt $ 805,390.10
Emmett Valley Construction $ 850,771.20
MAC General Eng. $ 917,521.31
Griffith Company $ 953,735.00
Burtch Construction $ 964,188.00
Bowman Asphalt submitted the apparent low bid of $799,565.00, which was about 9% lower than the engineer's estimate of $879,189.00. The highest bid of $964,188.00 was about 10% higher than the engineer’s estimate.
B. BHT Engineering, Inc. proceeded to qualify the lowest responsive bidder Bowman Asphalt and verified the bidder's proposal as follows:
1. The low bidder submitted the proposal on the required forms and provided all requested information.
2. The low bidder computed the total amount bid and extended amounts correctly.
3. BHT Staff verified with the State Contractor’s License Board (http://www.cslb.ca.gov/) and the California Department of Industrial Relations (Registrations (salesforce-sites.com) that the low bidder and all subcontractors hold current and active State Contractor’s Licenses and are registered with the DIR, as follows:
Contractor Name License No. & Class License Expiration
Date DIR Regis. No.
Bowman Asphalt, Inc. 862672
A 08/31/2023 1000003010
Harker, Inc.
dba Harker Striping & Signage
615222
C32 04/30/2025 1000004812
T:\6-McFARLAND\DOC\2022 Projects\22603 - Ebell St - Woodruff to Mast\BIDDING PHASE\Low Bidder Qualification\McFarland - 2023 Street Rehab - Low Bid Analysis.doc Page 2 of 2
4. BHT Staff verified that the low bidder’s Workers' Compensation Insurance coverage is current.
5. A proposal guarantee accompanied the proposal in the form of a Bid Bond totaling ten percent (10%) of the bid. The low bidder signed and properly notarized the Bid Bond. The surety agent is Travelers Casualty and Surety Company of America.
6. BHT Staff verified through the State Department of Insurance website (https://interactive.web.insurance.ca.gov/companyprofile/companyprofile) that the Bonding Company, Travelers Casualty and Surety Company of America, is an admitted surety in the State of California.
7. BHT Engineering, Inc. verified that neither the low bidder nor any of its key personnel appear on the Federal or State debarment lists (https://www.sam.gov/SAM/; https://www.dir.ca.gov/dlse/debar.html)
8. The low bidder has successfully completed several recent projects in Southern California, including a project in McFarland, the W. Kern Ave. Reconstruction and 6th Street Overlay, completed on September 23, 2021.
C. Recommendation of Award:
Bowman Asphalt is the lowest responsive bidder based on the stated basis of award. If a construction contract is awarded, it is recommended that the contract be awarded to Bowman Asphalt.
Attachments: Bid Summary
Bid Opening Checklist
Contractor’s License verification
Contractor and Subcontractor’s (DIR) Registration number Bonding Company Information
System for Award Management (SAM) report
DLSE Debarments list
BHT Job # 22603, 22604 22605
BID OPENING: JULY 13, 2023 @ 2:15 PMSIX (6) BIDS TOTAL RECEIVED. Three (3) Lowest Bids Shown ITEM UNIT OF EST. UNIT TOTAL UNIT TOTAL UNIT TOTAL UNIT TOTAL NO. MEASURE QNTY. COST COST COST COST COST COST COST COST 1 SITE DEMOLITION, HAUL-OFF EXCESS MATERIAL L.S. 1 $ 40,000.00 40,000.00 $ 42,345.05 $ 42,345.05 $ 62,580.00 $ 62,580.00 $ 16,000.00 $ 16,000.00 $ 2 COLD PLANE ± 3" OF EXISTING SURFACE, PROOF ROLL SUBGRADE S.F. 210,283 $ 94,627.00 0.45 $ 0.40 $ 84,113.20 $ 0.20 $ 42,056.60 $ 0.40 $ 84,113.20 $ 3 TYPE B HOT MIX ASPHALT TON 4100 $ 451,000.00 110.00 $ 91.00 $ 373,100.00 $ 98.00 $ 401,800.00 $ 120.00 $ 492,000.00 $ 4 APPLY FOG SEAL ON NEW PAVEMENT L.S. 1 $ 7,500.00 7,500.00 $ 6,400.00 $ 6,400.00 $ 9,000.00 $ 9,000.00 $ 10,000.00 $ 10,000.00 $ 5 INSTALL CURB & GUTTER - (INCLUDES SAWCUT, LAYOUT, DEMOLITION OF EXISTING IMPROVEMENTS, SCARIFY 12" NATIVE MATERIAL, GRADE, & COMPACT TO 90%) L.F. 602 $ 42,140.00 70.00 $ 100.00 $ 60,200.00 $ 92.00 $ 55,384.00 $ 95.00 $ 57,190.00 $ 6 INSTALL ADA CURB RAMP (INCLUDES SAWCUT, LAYOUT, DEMOLITION OF EXISTING IMPROVEMENTS, SCARIFY 12" NATIVE MATERIAL, GRADE, & COMPACT TO 90%) EA. 17 $ 76,500.00 4,500.00 $ 5,255.00 $ 89,335.00 $ 4,353.00 $ 74,001.00 $ 4,000.00 $ 68,000.00 $ 7 INSTALL 8" THICK CONCRETE APRON (INCLUDES SAWCUT, LAYOUT, DEMOLITION OF EXISTING IMPROVEMENTS, SCARIFY 12" NATIVE MATERIAL, GRADE, & COMPACT TO 90%) S.F. 62 $ 2,480.00 40.00 $ 49.00 $ 3,038.00 $ 92.50 $ 5,735.00 $ 95.00 $ 5,890.00 $ 8 INSTALL WHITE THERMOPLASTIC PAVEMENT MARKINGS S.F. 352 $ 5,280.00 15.00 $ 14.00 $ 4,928.00 $ 10.00 $ 3,520.00 $ 10.00 $ 3,520.00 $ 9 INSTALL LIMIT LINE - THERMOPLASTIC L.F. 331 $ 1,986.00 6.00 $ 3.75 $ 1,241.25 $ 6.00 $ 1,986.00 $ 6.00 $ 1,986.00 $ 10 INSTALL 12" YELLOW CROSSWALK LINE - THERMOPLASTIC L.F. 334 $ 2,672.00 8.00 $ 4.00 $ 1,336.00 $ 6.00 $ 2,004.00 $ 6.00 $ 2,004.00 $ 11 INSTALL 6" YELLOW CENTER LINE (DETAIL 2) - THERMOPLASTIC L.F. 4818 $ 9,636.00 2.00 $ 1.00 $ 4,818.00 $ 2.00 $ 9,636.00 $ 2.00 $ 9,636.00 $ 12 INSTALL 6" YELLOW CENTER LINE (DETAIL 22) - THERMOPLASTIC L.F. 1300 $ 6,500.00 5.00 $ 2.50 $ 3,250.00 $ 3.25 $ 4,225.00 $ 3.00 $ 3,900.00 $ 13 INSTALL ON-STREET PARKING STALL STRIPING L.F. 353 $ 2,118.00 6.00 $ 3.50 $ 1,235.50 $ 3.50 $ 1,235.50 $ 4.00 $ 1,412.00 $ 14 FURNISH AND INSTALL SOLAR-POWERED FLASHING LED STOP SIGN - R1-1 (30"X30") EA. 15 $ 45,000.00 3,000.00 $ 3,000.00 $ 45,000.00 $ 2,500.00 $ 37,500.00 $ 2,600.00 $ 39,000.00 $ 15 FURNISH AND INSTALL - PROJECT FUNDING SIGN FOR SB1 - C48 (CA) (48"x30") EA. 6 $ 4,800.00 800.00 $ 950.00 $ 5,700.00 $ 1,000.00 $ 6,000.00 $ 500.00 $ 3,000.00 $ 16 SALVAGE/RE-INSTALL EXISTING SIGN EA. 14 $ 2,800.00 200.00 $ 375.00 $ 5,250.00 $ 270.00 $ 3,780.00 $ 250.00 $ 3,500.00 $ 17 FURNISH AND INSTALL BLUE FIRE HYDRANT MARKER EA. 2 $ 50.00 25.00 $ 25.00 $ 50.00 $ 14.00 $ 28.00 $ 400.00 $ 800.00 $ 18 ADJUST SEWER MANHOLE TO NEW GRADE EA. 8 $ 16,000.00 2,000.00 $ 1,700.00 $ 13,600.00 $ 2,160.00 $ 17,280.00 $ 900.00 $ 7,200.00 $ 19 ADJUST MONUMENT/WATER VALVE TO NEW GRADE EA. 11 $ 19,250.00 1,750.00 $ 1,400.00 $ 15,400.00 $ 1,615.00 $ 17,765.00 $ 900.00 $ 9,900.00 $ 20 FURNISH AND INSTALL TREE ROOT BARRIER L.F. 17 $ 850.00 50.00 $ 225.00 $ 3,825.00 $ 162.00 $ 2,754.00 $ 160.00 $ 2,720.00 $ 21 RELOCATE/ADJUST IRRIGATION SYSTEM - IN KIND L.F. 60 $ 3,000.00 50.00 $ 40.00 $ 2,400.00 $ 52.00 $ 3,120.00 $ 50.00 $ 3,000.00 $ 22 PREPARE AND IMPLEMENT SWPPP L.S. 1 $ 5,000.00 5,000.00 $ 3,000.00 $ 3,000.00 $ 12,000.00 $ 12,000.00 $ 4,000.00 $ 4,000.00 $ 23 TEMPORARY TRAFFIC CONTROL L.S. 1 $ 40,000.00 40,000.00 $ 30,000.00 $ 30,000.00 $ 32,000.00 $ 32,000.00 $ 22,000.00 $ 22,000.00 $ Date Updated: 07/14/23. By: JMP TOTAL BASE BID: 879,189.00 $ $ 805,390.10 799,565.00 $ 850,771.20 $ 123
Emmett Valley Construction
Fresno, CA (559) 408‐5908
Lic No. 913590
ITEM DESCRIPTION
CITY OF MCFARLAND - BID SUMMARY
2023 STREET REHABILITATION - VARIOUS LOCATIONS
Engineer's Estimate
Bowman Asphalt, Inc
Bakersfield, CA (661) 334‐1356
Lic No. 862672
Central Valley Asphalt
Lindsay, CA (559) 562‐7802
Lic No. 777434
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Registration
Number Legal Entity Name RegistrationStart Date
Registration
Expiration Date
Status DBA Name Craft Name
1000003010 BOWMAN ASPHALT, INC. 7/1/23 6/30/25 Active Parking/Highway/Impro vement
1000004812 HARKER INC 7/1/21 6/30/24 Active HARKER STRIPING
AND SIGNAGE
Parking/Highway/Impro
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STAFF REPORT
CITY OF MCFARLAND
1 | Page
TO: Honorable Mayor and City Council Members
FROM: Kenny Williams, City Manager
Serrena McCuan, Human Resources Director
DATE: July 27, 2023
SUBJECT: Report, Discuss, and Possible Approval of the Employment Agreement between the City and Adam Cabrera.
SUMMARY:
In recent months, Patrick Jacobs has commendably fulfilled the roles as the City’s Interim Public Works Director and Interim Deputy Public Works Director. However, his employment agreement expired on June 30, 2023. Also, commencing July 1, 2023, the City Council authorized the consolidation of two Deputy Public Works Director roles into a singular Assistant Public Works Director position. This strategic restructuring is designed to address the evolving needs and challenges of our city more efficiently.
In preparation for this transition, we have filled the Public Works Director position and have actively sought a suitable individual for the full-time Assistant Public Works Director role. Our exhaustive recruitment and evaluation process led us to identify Mr. Adam Cabrera as an exceptionally strong contender for the position.
Mr. Cabrera has several years of experience in project management in both private and public sectors. Based on his knowledge, skills, and abilities Mr. Cabrera was provided with a conditional job offer.
FINANCIAL IMPACT:
Mr. Cabrera was offered a salary of $78,000 annually plus benefits as listed below. • 401K $7,800 annually
• Payroll tax $6,000 annually
• Medical Benefits $20,000 annually (Estimate)
Total estimated annual cost $111,800. No additional appropriation is required at this time as the total cost is within the amount budgeted for this position in fiscal year 2023-2024.
RECOMMENDATION:
STAFF REPORT
CITY OF MCFARLAND
2 | Page
Staff recommends council discuss & possibly approve the employment agreement between the City and Adam Cabrera for the position of Assistant Public Works Director.
ATTACHMENT:
Employment agreement between the City and Adam Cabrera.
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
This employment agreement (“Agreement”) is made on this 27th day of July 2023, by and between the City of McFarland, a Municipal Corporation (“City”), and Adam Cabrera (“Cabrera”). The City and Cabrera are collectively referred to as the “Parties” where appropriate.
Once effective, this Agreement shall replace and supersede any prior employment contracts or agreements between the Parties, which are hereby deemed rescinded and of no further effect, except where indicated within this Agreement.
RECITALS:
WHEREAS, the City Council now wishes to engage the services of Cabrera as the City’s Assistant Public Works Director; and
WHEREAS, the position of Assistant Public Works Director is an “at will” position, not subject to the City’s personnel rules; and
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth hereinafter, the Parties mutually agree as follows:
AGREEMENT
1. Incorporation. The Parties incorporate the foregoing recitals as if fully set forth herein verbatim.
2. Hire. City acknowledges that it will hire Cabrera as its Public Works Director as of July 31, 2023 (“Effective Date”). Cabrera and the City agree to the terms and conditions of this Agreement. Cabrera shall remain in the exclusive hire of City during the term of this Agreement and shall neither accept other employment nor become employed by any other employer until the end of the Term or earlier termination of this Agreement.
3. “At-Will” Employment. Cabrera’s employment with City is at the sole will, discretion, and pleasure of the City. The City Manager may fix any such additional terms and conditions of employment, as they may determine from time to time, relating to Cabrera’s performance, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement, the City Municipal Code, or any other law.
The terms of the City’s personnel rules, policies, procedures, ordinances, or resolutions (collectively “Personnel Policies”) shall not apply to Cabrera unless made expressly applicable, except that all policies and regulations related to the prevention of harassment, discrimination and retaliation shall apply to Cabrera.
This Agreement is not intended to, or does it confer any right to any property interest in continued employment, or any due process property right to a hearing before or after a decision by the City Manager to terminate Cabrera’s employment. Subject to State and
EMPLOYMENT AGREEMENT
Federal law, nothing contained in this Agreement shall in any way prevent, limit or otherwise interfere with the right of the City to terminate the services of Cabrera.
4. Duties.
a. Assistant Public Works Director. Employee accepts employment with the City as its Assistant Public Works Director and agrees to perform all functions, duties, and services as promulgated by City regulations and procedures, the City Manager, and the Assistant Public Works Director job description, including, but not limited to the following:
i. Plan, organize, direct, and supervise all departmental programs. Oversee and evaluate the efficiency and effectiveness of all aspects of the department’s programs in light of the City’s goals, objectives, and priorities. ii. Directs development of City goals, objectives, and priorities. Based on these City goals, objectives, and priorities, develop those of each department. Participate in the development and administration of the departmental budgets. iii. Directs the selection and assignment of department employees and provide for the supervision and training of all such personnel. Assign, direct, evaluate and recommend reward and discipline of employees directly supervised, in accordance with City policy. Assure that department employees are instructed in job safe practices associated with their typical work environments and in the handling of hazardous materials. Resolve routine personnel issues. Investigate accidents. iv. Maintain adequate monitoring and reporting systems to ensure the adequacy, quality and timeliness of department activities, programs, and compliance with City regulations. Determine work procedures to improve efficiency and effectiveness of operations.
v. Prepare City Council agenda items for review and approval by the City Manager vi. Attend a variety of management meetings and other city meetings representing the department. Make presentations before various boards and commissions and as requested by the City Manager, before the City Council
vii. Represent the City on various regional, community and professional boards, committees, and commissions, as requested by the City Manager. Make necessary presentations and maintain effective liaison with colleagues and practitioners in similar local, state, and federal activities.
viii. Provide technical staff assistance to the City Manager and other department heads.
Draft correspondence in response to public inquiries and monitor department program activities for compliance with regulations and City priorities. Serve the City by taking on special non-public works assignments from the City Manager, staffing special studies, inquiries and fact finding. Prepare staff analysis and reports on various projects and programs. Present analysis in both oral and written form to the City Manager and Council
ix. Resolve the department’s most difficult, complex and sensitive customer service issues as necessary or directed and maintain related records. Keep the City manager informed of problems, issues, and concerns. Recommend changes in programs and policies to the City Manager
EMPLOYMENT AGREEMENT
x. Research, identify and develop suggested changes to the department programs and prepare proposed supporting budgets during the City’s annual budgetary process.
Direct the development and presentation of the Public Works budgets. xi. Estimate department revenues and expenses, including any revenue and expense associated with grants and contracts of the department. Administer budgets for each of the departmental divisions.
xii. Direct the planning, development, and implementation of public works projects.
Approve plans for public works projects. Review contractor bids and recommend contract award.
xiii. Enter into discussions with outside entities concerning the establishment of contractual relationships with the City concerning those matters under department cognizance. Monitor these and other City contracts that relate to and are within the scope of department responsibilities.
xiv. Responsible for authorizing the purchase of departmental materials and equipment within the established dollar limits and the department’s budget. Prepare staff analysis and reports on various projects and programs. Present analysis in both oral and written form through Council and other public presentations, as requested by the City Manager
xv. Plan, organize, direct, and coordinate all the activities of the Public Works Department. Functional activities include street and traffic signing maintenance and repair, vehicular and equipment maintenance and repair, electrical and electronic maintenance and repair, solid waste collection and disposal, wastewater collection and treatment, and water production, treatment, code enforcement, engineering and distribution programs and services.
xvi. Plan for facility expansion, storage facilities, and equipment purchases. Assure safe storage of volatile materials that meet State OSHA requirements and regulations.
Prepare specifications for projects and equipment. Implement Federal and State mandates.
xvii. Prepare or supervise the timely preparation of mandatory annual reports to the Federal, State, and other agencies. Prepare additional periodic reports for the City Manager and City Council.
xviii. Performs other duties as assigned.
.
5. Term. Except as hereinafter described, the term of this Agreement shall be for one (1) year commencing on the Effective Date. The term of this contract shall automatically renew for an additional one (1) year on the effective date of each subsequent year, unless mutually agreed by both parties to renegotiate the terms of this contract. The termination of this contract may be accomplished pursuant to the provisions of Section 6 of this Agreement.
6. Termination. Cabrera’s “at-will” employment as Assistant Public Works Director may be terminated as follows:
a. Resignation. If Cabrera elects to resign at any time during the term of this Agreement, he may do so upon giving City thirty (30) days' written notice.
EMPLOYMENT AGREEMENT
Termination pursuant to such action shall occur thirty (30) calendar days after service of said notice, or on such other date as may be agreed to by the Parties. b. Retirement. If Cabrera elects to retire, He shall inform City, in writing, at least thirty (30) days prior to the effective date of such retirement. City shall cooperate fully with Employee to provide all information in a timely manner. c. Termination “Without Cause.” City reserves the right to terminate this Agreement and Cabrera's employment as Assistant Public Works Director at any time, “without cause” or advance notice.
d. Termination “With Cause.” The City reserves the right to terminate this Agreement and Cabrera’s employment at any time, “with cause.” “Cause” shall include, but not be limited to:
i. Willful misconduct or gross negligence;
ii. Theft, or attempted theft, financial mismanagement, material dishonesty, willful or persistent breach of duties, engaging in conduct tending to bring embarrassment or disrepute to the City, unauthorized or excessive absences; iii. A formal investigation commissioned by the City Council and conducted by a third-party investigator hired by the City Council in which the City Council has determined that the Employee has engaged in unlawful discrimination or harassment of Employees or any third party while on City Premises or on City time. City is not required to wait until Employee has exhausted any appeal rights prior to terminating this Agreement “for cause;” iv. Conviction of any felony, or for any misdemeanor involving moral turpitude, corruption, or dishonesty. “Conviction” shall include any guilty plea, plea of nolo contendere, or any other disposition other than a dismissal of charges or acquittal. City is not required to wait until Employee has exhausted any appeal rights prior to terminating this Agreement “for cause;” v. Cabrera’s death; or
vi. If Cabrera is determined by a court of competent jurisdiction of the State of California’s Fair Political Practices Commission to have knowingly and unlawfully participated in a governmental decision I which he had a conflict of interest as defined in Government Code Section 87100 et seq. or Government Code Section 1090 et seq.;
vii. Cabrera’s permanent disability if such disability precludes Cabrera from performing His essential job duties for more than six (6) cumulative months after attempts at a reasonable accommodation pursuant to the Americans with Disabilities Act and/or California’s Fair Employment & Housing Act.
7. Salary and Benefits. Cabrera’s salary and other benefits for all work or services called for under this Agreement shall be as follows:
A. Salary. Commencing on the Effective Date, Cabrera’s annual salary shall be seventyeight thousand dollars ($78,000), which shall be paid in bi-weekly pay periods. Any
EMPLOYMENT AGREEMENT
salary increases shall be implemented by written amendment to this Agreement and upon approval by the City Council.
B. Vacation. Cabrera shall receive eighty (80) hours of vacation leave, commencing on the effective date. At the end of each year of Cabrera’s employment, any unused vacation hours shall be cashed out prior to his accrual of an additional eighty (80) hours.
C. Sick Leave. Cabrera shall accrue eight (8) hours of sick leave per month of employment. The balance of sick leave shall not exceed any maximum accrual amounts set forth in the City's Employee Handbook. Unused sick leave will not be paid out upon termination or expiration of this Agreement.
D. Administrative Leave. Cabrera shall receive forty (40) hours of administrative leave per year, commencing on the first day of each year of his employment. Administrative leave will not carry over calendar years. At the end of each year of Cabrera’s employment, any unused hours shall be cashed out prior to His accrual of an additional forty (40) hours.
E. Holiday and Other Leaves. Cabrera shall receive the same leaves, holidays, and other time off as provided to other employees at the City.
F. Health Insurance Benefits. City shall provide health insurance coverage for Cabrera and his family consistent with the health insurance benefits provided to City employees.
Cabrera may waive this health insurance coverage so long as he has proof of other group coverage in accordance with the Affordable Care Act, (i.e. is not purchasing coverage from the exchange).
G. Term Life Insurance. The City shall pay the premiums for a group life insurance policy consistent with the City employee handbook. Cabrera shall name the beneficiary of the life insurance policy, provided said beneficiary has and maintains an insurable interest in Cabrera.
H. Vehicle. Cabrera shall be required to adhere to all City policies and procedures regarding the use of City vehicles.
I. Cell Phone. City shall provide Cabrera with a cell phone purchased by City to be used by Cabrera exclusively for performance of His duties under this Agreement and City shall pay the monthly charges for the cell phone data usage. Alternatively, at Cabrera’s election, City will pay Cabrera an allowance of $50.00 per month for use toward His personal cell phone and data plan. Cabrera acknowledges that use of the City provided cell phone, or His personal cell phone, for City business may be subject to such usage to disclosure under the California Public Records Act.
J. Retirement. City represents and Cabrera acknowledges that City is not a CalPERS agency for retirement purposes. The City shall contribute the equivalent of ten percent
EMPLOYMENT AGREEMENT
(10%) of Cabrera’s salary annually to Cabrera’s 401(k) or deferred compensation retirement account. Cabrera shall choose whether he wants the contribution made to His 401(k) or deferred compensation account, or a combination of both.
K. Expenses. City shall reimburse Cabrera for all reasonable out-of-pocket expenses incurred while performing the duties described in this Agreement, which may include travel, meals, lodging expenses, and parking fees. Cabrera shall submit a receipt and a description of the expenses to the City’s Finance Director within thirty (30) days of the date each expense is incurred as a condition of obtaining reimbursement.
8. Bonding and Indemnification. City shall bear the full costs of any fidelity or other bond required of Cabrera under any law or ordinance. City shall defend, save harmless and indemnify Cabrera from any and all demands, claims, suits, actions, or other legal proceedings (“Claims”) brought against Him in His individual capacity or in His official capacity as Assistant Public Works Director, provided the Claims arise while Cabrera is acting within the course and scope of His employment and provided He did not act or fail to act because of actual fraud, corruption or malice. The provision shall not extend to claims brought by City itself or where indemnity is otherwise prohibited by law.
9. Evaluation. The City Manager shall evaluate Cabrera after the first six (6) months of the Term of this Agreement. The City Manager shall have the right to establish the format and the forms to be used.
10. Notices. Notices pursuant to this Agreement shall be deemed to be given when personally delivered to the party to whom directed or when deposited in the United States Mail, postage prepaid or by electronic mail (Email) or, if notice is given to City, if sent by confirmed facsimile, addressed as follows:
City Cabrera
City Manager, City of McFarland Adam Cabrera
401 West Kern Avenue
McFarland, California 93250
Email: [email protected]
Either party may change His or its address by providing written notice to the other party in the manner described herein.
11. General Provisions.
A. Entire Agreement. This Agreement constitutes the complete understanding between the Parties, is fully integrated, and supersedes any and all prior agreements – including the Parties’ Consulting Agreement – promises, representations, or inducements, no matter their form, concerning the subject matter of this Agreement. No subsequent agreements, promises, representations, or inducements will be binding unless recorded in a written document, which specifically references this Agreement and is signed by the Parties or their authorized representatives. The Parties acknowledge that this
EMPLOYMENT AGREEMENT
Agreement may be used as evidence in any subsequent proceeding in which either Party alleges a breach of this Agreement or seeks to enforce its terms, provisions, obligations, or as compelled by law.
B. Captions. The headings used in this Agreement are inserted for reference purposes only and shall not be deemed to limit or affect in any way the meaning or interpretation of any of the terms or provisions of this Agreement.
C. Severability. If any provision contained in this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be deemed severable and shall not be affected thereby and same shall remain in full force and effect.
D. Amendment. This Agreement may only be amended by a writing executed by all parties.
E. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action or motion to enforce the terms or conditions of this Agreement shall be brought only in the Superior Court of California for the County of Kern.
F. Waiver. Waiver by any party of any breach of this Agreement by the other party, whether such waiver be direct or implied, shall not be construed as a continuing waiver or consent to any subsequent breach of this Agreement on the part of the other party.
G. Further Assurances. Each party shall execute and deliver such papers, documents, and instruments, and perform such acts as are necessary or appropriate, to implement the terms of this Agreement and the intent of the parties to this Agreement.
H. Assignment. Neither this Agreement, nor any interest in it, may be assigned or transferred by any party without the prior written consent of all the parties. Any such assignment will be subject to such terms and conditions as City may choose to impose.
I. Binding Effect. The rights and obligations of this Agreement shall inure to the benefit of, and be binding upon, the parties to the contract and their heirs, administrators, executors, personal representatives, successors and assigns, and whenever the context so requires, the masculine gender and includes the feminine and neuter, and the singular number includes the plural. This Agreement may be executed in any number of counterparts, each of which shall be considered as an original and be effective as such.
J. Merger And Modification. This contract sets forth the entire Agreement between the parties and supersedes all other oral or written representations. This contract may be modified only in writing, approved by the City Council and signed by all the parties.
K. Attorneys’ Fees. If either party commences any action or proceeding relating to this Agreement or the enforcement of any provision of this Agreement against the other
EMPLOYMENT AGREEMENT
party, the prevailing party, in such action or proceeding, shall be entitled to recover reasonable attorneys’ fees, costs, and all other litigation costs.
L. Execution. This Agreement is effective July 31, 2023. It is the product of negotiation, and all parties are equally responsible for authorship of this Agreement. Section 1654 of the California Civil Code shall not apply to the interpretation of this Agreement.
M. Non-Interest. Except for Cabrera, no officer or employee of City shall hold any interest in this Agreement (California Government Code section 1090).
N. Counterparts. This Agreement may be executed in counterparts and the respective signature pages for each party may thereafter be attached to the body of this Agreement to constitute one integrated Agreement which is as fully effective and binding as if the entire document had been signed at one time.
O. Acknowledgement of Statutes That May Affect Employment Relationship. City and Employee acknowledge that, in addition to the statutes previously referenced in this Agreement, the following statutes shall govern this employment relationship under the circumstances described in the statutes:
a. Government Code section 53243 states that on or after January 1, 2012, any contract executed or renewed between a local agency, such as the City, and an officer or Employee of a local agency, such as Cabrera, that provides paid leave salary offered by the local agency to the officer or Employee pending an investigation shall require that any salary provided for that purpose be fully reimbursed if the officer or Employee is convicted of a crime involving an abuse of His office or position.
b. Government Code section 53243.1 states that on or after January 1, 2012, any contract executed or renewed between a local agency, such as the City, and an officer or Employee of a local agency, such as Employee that provides funds for the legal criminal defense of an officer or Employee shall require that any funds provided for that purpose be fully reimbursed to the local agency if the officer or Employee is convicted of a crime involving an abuse of His office or position. c. Government Code section 53243.3 states that on or after January 1, 2012, if a local agency, such as the City, provides, in the absence of a contractual obligation, for any of the payments described in the corresponding article of the Government Code, then the Employee or officer, such as Employee, receiving any payments provided for those purposes shall fully reimburse the local agency that provided those payments in the event that the Employee or officer is convicted of a crime involving the abuse of His office or position.
d. Government Code sections 87100 et seq., section 1090 and section 1126, and all other similar statutory and administrative rules, prohibit conflicts of interest.
During the term of this Agreement, Cabrera shall comply with all those
EMPLOYMENT AGREEMENT
requirements of law, and shall not engage in any business or transaction or maintain a financial interest which conflicts, or reasonably might be expected to conflict, with the proper discharge of Employee's duties under this Agreement.
Cabrera represents that He has reviewed, is familiar with, and agrees to comply fully with each of these provisions if any of these provisions are applicable to him, including that Employee agrees that any cash settlement or severance related to a termination that Employee may receive from City shall be fully reimbursed to the local agency if Employee is convicted of a crime involving an abuse of Employee's office or position.
P. Independent Legal Advice. City and Cabrera represent and warrant to each other that each has received legal advice from independent and separate legal counsel with respect to the legal effect of this Agreement or had the opportunity to do so and City and Cabrera further represent and warrant that each has carefully reviewed this entire Agreement and that each term thereof is understood and that the terms of this Agreement are contractual and not a mere recital. This Agreement shall not be construed against the Party or its representatives who drafted it or who drafted any portion thereof.
[Signature Page Follows]
EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective on the day and year first above written:
Dated: CITY OF MCFARLAND
By: _________________________
Saul Ayon
Title: Mayor
Dated: EMPLOYEE
By: _________________________
Adam Cabrera
APPROVED AS TO FORM:
By:
Nathan M. Hodges, Esq.
Hodges Law Group
City Attorney
Attachments:
Exhibit A: City of McFarland Position Description – Assistant Public Works Director City of McFarland
Assistant Public Works Director
Salary Range: $74,784 - $96,648 Annually (CONTRACT)
POSITION SUMMARY:
The fundamental reason this classification exists is to perform professional and administrative work of great complexity and sensitivity in the planning, organizing, directing, and coordinating of activities of the Public Works Department; supervises technical staff and subordinate personnel in the planning and implementation of division functions including water operations, wastewater operations, storm drainage systems, fleet and equipment maintenance, streets, sidewalks, signs, traffic signals and street lighting; and performs related work as required. This is accomplished in compliance with all applicable regulatory, operational, procedural, and budget guidelines. Makes public presentations and responds to public inquiries; provides policy guidance and maintains cooperative relationships with community groups, intergovernmental agencies and City staff and performs other work as required. Serve as Acting Director of Public Works in the absence of the Director.
This single position class has division head responsibility for the overall administration of streets and sidewalk maintenance and repair, water utility operation, wastewater collection system maintenance and repair, fleet and equipment purchasing, maintenance and repair, and storm drain system maintenance and repair. Requirements include evening and weekend hours and response to emergency situations. This is a Fair Labor Standards Act (FLSA) Exempt position.
ESSENTIAL JOB DUTIES AND RESPONSIBILITIES:
o Manages the activities of the Streets, Wastewater, Transit, Refuse, and Water Divisions and Capital Improvement Projects from those divisions
o Plans, organizes, coordinates, and directs the work of the Streets, Wastewater, Transit, Refuse, and Water Divisions and oversees the work of the Capital Improvement Projects from those divisions o Develops and directs the implementation of goals, objectives, policies, procedures, and work standards
o Develops and implements management systems, procedures, and standards for program evaluation. o Directs the preparation of a variety of studies and reports relating to the current and long-range needs of the City Streets, Wastewater, Transit, Refuse and Water Divisions and develops specific proposals to meet them; provides technical assistance to staff o Plans and directs project management activities for a variety of Streets, Wastewater, Transit, Refuse and water activities, including the preparation of plans, estimates, schedules, and project monitoring. o Confers with developers and others to resolve issues relating to public improvement requirements for subdivisions
o Directs the preparation and administration of the division's budget o Directs the selection, supervision and work evaluation for division staff and provides for their training and professional development.
o Prepares or reviews reports for the Public Works Director; works closely with Council and other groups to explain or coordinate plans for proposed projects and to respond to their concerns o Coordinates the work of the division with that of other divisions o Monitors developments related to public works Streets, Wastewater, Transit, Refuse, and Water Divisions, evaluates their impact on City operations and implements policy and procedure improvements
o Ensures adherence to codes, applicable laws, regulations, and guidelines relating to Streets, Wastewater, Transit, Refuse and Water activities
o Administers capital improvement and division outlay budgets; prepares draft cooperative agreements with other agencies; reviews plans and proposals for their relationship with the City; administers policy as established by the City Council; and interacts extensively with the public o Supervises and participates in the preparation of special studies and reports o Assists in the evaluation, selection, and supervision of professional consultants o Reviews proposed private developments and assists in establishing conditions of approval o Assists in the supervision and review of improvement plans, maps, use permits, tentative maps, zone changes, specific plans, general plan amendments, and their associated environmental documentation
o Assists in the supervision of the Public Works permit functions for the Department, including the implementation, collection, and administration of Public Works fees o Assists in the Coordination of the Public Works development review activities with the Planning Department and other City departments and outside agencies o Assists in the Supervision of the bidding, construction management, and inspection of capital improvement projects
o Supervises the inspection of Public Works infrastructure installed in conjunction with new development.
o Participates in the preparation of Capital Improvement Program and budgets o May perform other work as assigned.
ABILITY TO: Plan, organize, administer and direct Street, Wastewater, Transit, Refuse, and Water programs; select, motivate and evaluate staff including professional, technical and clerical personnel; develop and implement goals, recommend policies and internal controls; analyze complex technical and administrative problems; and to make clear and concise technical reports, both written and oral; act as liaison to local, state and federal agencies, boards, etc.; establish and maintain cooperative working relationships with the news media, public, boards, agencies, City staff, etc.; make presentations to City Council.
SKILLED IN: Managing and directing the Streets, Wastewater, Transit, Refuse, and Water Divisions programs; Planning, organizing, directing, and coordinating a variety of functional specialties with overlapping work areas; Selecting, motivating and evaluating staff and providing for their training and professional development; Analyzing complex technical and administrative problems, evaluating alternative solutions and recommending or adopting effective courses of action; Developing and implementing goals, objectives, policies, procedures, work standards and internal controls; Preparing clear and concise reports, correspondence and other written materials; Exercising sound independent judgment within general policy guidelines; Establishing and maintaining effective working relationships with those contacted in the course of work.
MINIMUM QUALIFICATIONS: Any combination of experience and training that would provide the required knowledge and abilities is qualifying. A typical way to obtain the required knowledge and abilities would be:
Education: Equivalent to a bachelor's degree from an accredited college or university with major course work in public or business administration, management, civil engineering, construction management or a related field.
Or,
Experience: Four (4) years of increasingly responsible management experience in public works or utilities operations and maintenance or a related field.
KNOWLEDGE OF: Principles and practices of the Streets, Wastewater, Transit, Refuse, and Water functions; principles and practices of Street, Wastewater, Transit, Refuse and Water systems; principles, practices and equipment of modem office management; public administration principles and methods; program and budget development; principles of management and supervision of employees; principles of contract negotiation and administration relating to Streets, Wastewater, Transit, Refuse and Water systems; techniques and methods utilized in the Streets, Wastewater, Transit, Refuse and Water systems; computer applications related to work.
LICENSE OR CERTIFICATE- A California class C driver’s license is required. Possession of one of the following is highly desirable: Possession of a Grade IV Certification as a Wastewater Plant Operator from the California State Water Resources Control Board. Possession of a Grade IV Certification as a Water Treatment or Distribution Operator from the California Department of Health Services.
PHYSICAL REQUIREMENTS- The physical demands described here are representative of those that must be met by an employee to successfully perform the essential functions of this job in compliance with Americans with Disabilities Act (ADA) requirements. On a case-by-case basis, reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions.
Requires the maintenance of physical conditioning necessary to operate motorized equipment and vehicles; Ability to work in a standard office environment, sit, stand, walk, kneel, crouch, squat, stoop, reach, crawl, twist, climb and lift 50 pounds; walk over uneven surfaces; exposure to outdoor elements and confined work spaces, electrical hazards, chemicals, dust and mechanical hazards associated with construction, maintenance and repair activities; manual and physical dexterity to operate phone, computer keyboard, and office equipment
OTHER- Must complete an annual Statement of Economic Interest. Bilingual fluency in English and Spanish is desirable.
EDUCATION AND EXPERIENCE:
Any combination of experience and education that would be likely to provide the required knowledge, skills, and abilities could be qualifying, as determined by the City. A typical way to obtain the knowledge, skills, and abilities is:
Experience - Four years of progressively responsible professional experience in Streets, Wastewater, Transit, Refuse and Water systems, including both field and office work.
Education - Graduation from an accredited college or university with a bachelor's degree with major course work in public or business administration, management, civil engineering, construction management or a related field.
COMPENSATION AND BENEFITS:
The City of McFarland offers an excellent benefit package including:
o Comprehensive City paid medical, dental, and vision benefits for the employee and Dependents o Life insurance equal to 1-year base salary with a minimum of $50,000 o Retirement: Deferred Compensation 401(k) -
The City of McFarland contributes an additional 10% of an employee's pay each pay period into a 401 K plan, at no cost to the employee. The City is not a PERS (Public Employees Retirement System) Agency
o Supplemental life insurance (Optional)
o Deferred Compensation 457 Plan (Optional)
o Section 125 plan participation
o 12 days' vacation and 12 days sick pay accrued annually o 12 Days Holiday Pay
o 9/80 Work Schedule- every other Friday off
APPLICATION: To apply, please complete and application online at www.mcfarlandcity.org. Resumes will not be accepted in lieu of a City employment application.
EQUAL OPPORTUNITY EMPLOYER: The City of McFarland is an Equal Opportunity Employer in accordance with the Americans with Disabilities Act of 1990 (ADA), requests for special accommodations during any stage of the examination process should be made in advance to the Human Resources Department.
CITY OF MCFARLAND
STAFF REPORT
TO: Honorable Mayor and Council Members
FROM: Kenny Williams, City Manager
DATE: July 27, 2023
SUBJECT: Report, Discuss, and Possible Approval of resolution No.2023-0089 A Resolution of the City Council of the City of McFarland approving funds from the City’s Community Grant Program to the McFarland Lions club #2351 for the McFarland Panthers Football program.
SUMMARY:
In February 2023 the McFarland City Council created the community grants program to allow funding opportunities for the various groups, organizations, volunteers, who through events improve upon the cultural, social and economic well-being of the City.
The council also recognizes that citizens have the right to expect that tax dollars will be expended in a manner that is justifiable, fair and holds groups accessing public funds accountable for their spending. In that regard, municipal grant funding demonstrates Council's commitment to working with groups which provide these beneficial programs, services or projects to the community while at the same time recognizing the financial constraints impacting the City's ability to provide funding to these groups.
The Community Grants requests which can be considered by the city council require that the requests meet the criteria of providing a public service, or otherwise promote the health, safety or welfare of the community; and benefit the community. The Community Grant request must be approved by the majority of Council Members for the funds to be designated for the requesting entity.
On July 12, 2023, staff members received a request from the McFarland Lions Club requesting funding in the amount of $2500 for the McFarland Panthers Football program. The Lions Club submitted a request for funding to assist with, referees, equipment, fees, and football field rentals for the McFarland Panther football program. The Lions club indicated the Football league teaches the youth group respect for their community and keeps them off the streets in a positive atmosphere. The requested amount of funding is $2500.
FINANCIAL IMPACT:
If the request is approved the impact to the Community Grant funds would be $2,500.
RECOMMENDATION:
Report, Discuss, and Possible Approval of resolution No.2023-0089 A Resolution of the City Council of the City of McFarland approving funds from the City’s Community grant program to the McFarland lions club #2351 for the McFarland Panthers Football program in the amount of $2500.
ATTACHMENTS:
1. McFarland Lions club community grant application
2. Resolution nu 2023-0089
RESOLUTION NO. 2023-0089
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MCFARLAND
APPROVING FUNDS FROM THE CITYS COMMUNITY GRANTS PROGRAM TO THE MCFARLAND LIONS CLUB #2351
WHEREAS, The City Council recognizes the many benefits that various groups, organizations, volunteers, and events within the City of McFarland provide by promoting and improving upon the cultural, social and economic well-being of the City; and WHEREAS, Council also recognizes that citizens have the right to expect that tax dollars will be expended in a manner that is justifiable, fair and holds groups accessing public funds accountable for their spending; and
WHEREAS, in that regard, municipal grant funding demonstrates Council's commitment to working with groups which provide these beneficial programs, services or projects to the community while at the same time recognizing the financial constraints impacting the City's ability to provide funding to these groups; and
WHEREAS, The Community Grants requests which can be considered by the city council require that the requests meet the criteria of providing a public service, or otherwise promote the health, safety or welfare of the community; and benefit the community.
NOW THEREFORE BE IT RESOLVED, by the City Council of the City of McFarland that it hereby finds and determines as follows:
1. The foregoing recitals are true and correct and incorporated herein as if set forth in full.
2. The City of McFarland (“City”) desires to approve the following requests for funds for McFarland Lions club #2351 for the McFarland Panthers Football program.
3. The City of McFarland acknowledges that in consideration of the funding requests the requesting organization, McFarland Lions club, meets the criteria for the funding approval; and
4. The City of McFarland acknowledges that the funding requests meet the criteria of providing a public service, or otherwise promote the health, safety or welfare of the community; and benefit the community; and
5. The City Manager is hereby authorized and directed to proceed with the funding requests as indicated in the resolution, and.
6. The City Clerk shall certify to the passage and adoption of this resolution.
7. This resolution is effective immediately.
PASSED, AND ADOPTED at a regular meeting of the City Council of the City of McFarland, California on the 27th day of July, 2023 by the following vote:
Aye Nae Abstain Absent
Saul Ayon
Ricardo Cano
Amador Ayon
Anita Gonzalez
Maria Pérez
_____________________________
Saul Ayon, Mayor
I hereby certify that the foregoing Ordinance was duly and regularly adopted by the City Council of the City of McFarland by a regular meeting thereof held on July 27, 2023.
ATTEST:
_______________________________
Francisca Alvarado, City Clerk