455 EAST CALAVERAS BOULEVARD, MILPITAS, CALIFORNIA 95035-5479 GENERAL INFORMATION: 408-586-3005, WWW.MILPITAS.GOV
12/6/2022
Agenda Item No. 18
ADDITIONAL ATTACHMENT
AFTER AGENDA PACKET
DISTRIBUTION
Item 18 – Letter from the Public
CITY OF MILPITAS
Dec 6, 2022
Rich Tran
Mayor
Milpitas City Hall
Milpitas, CA 95035
Dear Honorable Mayor Tran and Milpitas City Councilmembers, Bloom Energy is pleased to provide comments on the proposed reach codes for building electrification.
We recognize the value of building decarbonization as a key tool for meeting local and state climate goals and hope to help the City avoid unintended consequences negatively impacting local air quality, energy resiliency, and long-term decarbonization.
Bloom Energy is a leading clean energy company headquartered and with manufacturing facilities in the Bay Area. Bloom Energy Servers are a distributed energy resource that delivers reliable, uninterrupted power. Using solid oxide fuel cell technology, Bloom converts natural gas, biogas, or hydrogen into electricity with high efficiency and without combustion, significantly reducing environmental impacts. Utilizing the same technology, Bloom Electrolyzers can be paired with renewable energy sources to create clean, low-cost hydrogen at industry-leading efficiencies.
The updated definition of an “all-electric building” as currently proposed in ordinance 65.154 inadvertently obstructs customers’ ability to procure clean, resilient on-site power by banning pipelines from anywhere within property lines of newly constructed buildings. This would affect the City’s ability to reach key goals of increasing energy reliability, especially for critical facilities and industrial properties, and complicate plans to phase out highly polluting back up generation sources. Therefore, we propose the City retain its current definition for an “All-Electric Building” from the 2019 municipal code as shown below:
“ALL-ELECTRIC BUILDING is a building that has no natural gas or propane plumbing installed within the building and that uses electricity as the only source of energy for space heating, water heating (including pools and spas), cooking appliances, and clothes drying appliances.” Maintaining the current definition will also help the City of Milpitas move towards achieving the goals set forth in the 2022 Milpitas Climate Action Plan Update, as outlined below:
• Measure BE-1.2: Facilitate innovative approaches to energy generation, distribution, and storage (e.g., microgrids). Microgrids and DERs that will help enable greater deployment of renewable energy are most effective when a diverse mix of technologies can be deployed in a complementary fashion.
• Measure BE-2.2: Facilitate all-electric development projects for industrial buildings. Industrial buildings due to higher electricity usage, requirements, and resiliency concerns prove harder and more costly to electrify than residential properties. DERs and microgrids can help address these concerns and more rapidly enable the electrification of end-uses within these buildings. • Action BE-2.4.4: Eliminate the provision of fossil fuel-powered backup generator permits for existing nonresidential development by 2030. As diesel generators proliferate throughout the Bay Area and increasingly underpin an unreliable power grid, non-combustion distributed energy resources such as fuel cells will be necessary to ensure reliability while reducing emissions.
• Measure 2.4: Minimize stress on the electrical grid and increase the resilience of existing residential and commercial development through energy efficiency upgrades and on-site energy generation and storage. Onsite DERs and microgrids reduce the overall load on the grid and can be configured to contribute to the grid during peak demand.
If the City pursues the new definition, fuel cell microgrids would no longer be an option to support reliable and clean power, creating a de-facto monopoly for backup diesel generators. Diesel generators release harmful air pollutants and greenhouse gas emissions,1 and they become the only long-term energy reliability option in the context of a full moratorium on natural gas infrastructure, including uses outside of the building.
Even as we are transitioning to a carbon-neutral energy future, the population of diesel generators in California is growing rapidly due to an aging grid, increased extreme weather events, and the intermittent nature of wind and solar generation. In fact, the diesel generator population in Milpitas increased by 62.5 percent between December 2018 and June 2020. In June 2020, back-up diesel generators in the City had a total capacity of 63.8 MW.2 Other cities in the Bay Area such as Livermore and Mountain View have chosen to adopt reach codes this year which do not preclude the installation of fuel cells or DERs. Other leading national cities such as Seattle and New York City have adopted such codes as well. 1 M.Cubed, 2021. Diesel Back-Up Generator Population Grows Rapidly in the Bay Area and Southern California, p. 7 2 Ibid. p.15
Maintaining the City’s existing definition of an all-electric building will also support the future use of green hydrogen, a zero-carbon fuel identified as a critical tool in achieving a net-zero energy transition by supporting the deployment of solar and wind power. In the near term, technologies like fuel cells can electrify buildings via directed hydrogen utilizing the existing natural gas infrastructure as the market and future hydrogen infrastructure matures.
Thank you for the opportunity to provide input on Milpitas’s building electrification reach code. We believe sound policies that support building decarbonization and ensure energy reliability are key to the successful implementation of the goals of reducing greenhouse gas emissions and promoting resiliency. Please consider us a resource on distributed energy resources and building decarbonization, and feel free to reach out if I can be helpful.
Best Regards,
James Apffel
Government & Community Relations
455 EAST CALAVERAS BOULEVARD, MILPITAS, CALIFORNIA 95035-5479 GENERAL INFORMATION: 408-586-3005, WWW.MILPITAS.GOV
12/6/2022
Agenda Item No. 18
ADDITIONAL ATTACHMENTS
AFTER AGENDA PACKET
DISTRIBUTION
Item 18 – Letter from SCCAOR “SCCAOR Commentary on Agenda Item 18 - Public Hearing 2022 CA Energy Code and Green Building Standards Code”
Item 18 – Letter from Acterra “Please approve your reach”
CITY OF MILPITAS
From: Enrique Navarro-Donnellan
To: Rich Tran; Karina Dominguez; Anthony Phan; Carmen Montano; Evelyn Chua; Suzanne Guzzetta Subject: SCCAOR Commentary on Agenda Item 18 - Public Hearing 2022 CA Energy Code and Green Building Standards Code
Date: Tuesday, December 6, 2022 2:22:40 PM
Attachments: SCC Home Electrification Potential Costs.pdf CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links.
Good Afternoon Milpitas Mayor & City Council,
The Santa Clara County Association of REALTORS®encourages you to reject any additional regulations or requirements beyond state mandates (ie: "reach codes") pertaining to existing homes.
For your reference, I have attached a study we conducted detailing the costs affiliated with reconfiguring a home to accommodate all-electric appliances - costs and necessary home adjustments well beyond solely swapping out appliances. Even in the case where only future development is considered for reach codes, several of these costs will be factored into the cost of said new housing. Our cost ranges were developed with responses from seven licensed electrician contractors in Santa Clara County.
As advocates for more, and affordably-priced housing, we advocate that home and property owners should be driving their own energy consumption decisions and have the option to live with energy systems that meet their needs and budget. In an area already among the most expensive markets in the nation, facing cost-of-living inflation across all consumer goods and services, particularly with electric utility rates higher than that paid elsewhere in the state or nation, we find it helpful to allow residents flexibility with the energy they use.
We ask that you oppose any additional reach codes on existing homes. Additionally, should it be considered, please oppose any mandates to require all-electric home conversion until public financing options are available to cover the costs of gas appliance replacement and the related structural work needed to accomodate all-electric appliances.
Kind Regards,
Enrique Navarro-Donnellan
Government Affairs Associate
Direct: 408.445.5063
Email: [email protected]
Santa Clara County Association of REALTORS®
1651 North First Street, San Jose, CA. 95112
Main 408.445.8500
STRUCTURAL COSTS Low End* High End*
APPLIANCES
Air/Heating System $4,500 $40,000
Range Cooktop $800 $6,500
Water Heater $1,000 $7,500
Clothes Dryer $1,000 $3,000
SERVICES
Rewiring & New 220 Amp Outlets $3,650 $22,000
Construction Access to Electrical $2,000 $9,000
Abatement of Asbestos & Lead $4,000 $36,000
Replacement Housing During Asbestos Removal & Construction Upgrades $5,000 $10,000 Electric Panel Upgrade from 50/100 to 200 amp $3,000 $15,000 Undergrounding of Lines $3,500 $15,000
Replacment of 2 inch pipe with 3 inch pipe to accommodate 200 amp service $5,000 $30,000 PG&E Capping-Off Gas Lines $9,500 $25,000
Permitting $1,000 $5,000
SUBTOTAL APPLIANCES & SERVICES $43,950 $224,000
ADDITIONAL FACTORS
Solar Panels + Structural Upgrades $25,000 $50,000
New Roof $20,000 $75,000
Backup Battery $7,500 $30,000
Swimming Pool/Spa Conversion** $10,000 $35,000
Trigger for Fire Sprinklers $10,000 $35,000
Trigger for Sewer Lateral $9,000 $30,000
*Cost of Labor is the Most Significant Unknown Factor
** Conversion to Electric is Discouraged by Pool Companies due to Inefficiency TOTAL STRUCTURAL COST $125,450 $479,000
Potential Cost Range of All-Electric Conversion
Building Electrification Cost Study Published: June 27, 2022 Sources: Based upon a study conducted by the Santa Clara County Association of REALTORS® (SCCAOR) with estimates from 7 Electrical Contractors in Santa Clara County.
The appliances, services, and additional factors are a "menu" of options and range of costs. Some newer homes will require fewer of the options and older homes will require most of the listed services and additional factors. 1651 North First Street, San Jose, CA 95112 • (408) 445-8500 • sccaor.com From: Jared Johnson
To: City Clerk
Subject: Please approve Your Reach!
Date: Tuesday, December 6, 2022 4:33:33 PM
Attachments: 22.12.6 Milpitas Reach Code Letter.pdf
CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links.
Hello!
My name is Jared Johnson, I am the Sr. Manager of Policy and External Relations for Acterra and attached is a letter from us, Mothers out Front, and Silicon Valley Youth Climate Action asking the city council to approve the 2022 California Green Building Standards Code with amendments.
Best regards,
JJ
Jared Johnson (he/him/his)
Senior Manager of Policy & External Relations
Acterra: Action for a Healthy Planet 3921 East Bayshore Road, Suite 208 Palo Alto, CA 94303-4303
(650) 223-5462
acterra.org | Subscribe
Acterra staff use self-identified pronouns to support workplace inclusion for everyone.
I respectfully acknowledge that my work takes place on the ancestral and unceded land of the Ramaytush Ohlone. Whose land are you on?
December 5, 2022
Subject: We urge you to reject requests to “support gas infrastructure” or for any exemptions for "distributed energy resources"
Dear Council Mayor Tran, Vice Mayor Montano, Councilmember Chua, Councilmember Dominguez, Councilmember Phan,
Acterra, Mother's out Front (Silicon Valley), and Silicon Valley Youth Climate Action (SYVCA) are commissioning this letter to represent hundreds of members residing in Milpitas and neighboring Silicon Valley cities. First of all we would like to thank you for voting to pass the Milpitas Climate Action Plan. This is a powerful investment in ensuring a just and livable world for current members of our community as well as future generations. In light of increasing climate catastrophes and public health hazards—from superstorms, extreme heat and rising sea levels to out-of-control wildfires and devastating drought—we ask that Milpitas continues to rein in its greenhouse gas emissions.
However, it is concerning that certain corporations may be lobbying the Milpitas City Council to weaken the Climate Action Plan by not going forward in approving the 2022 California Green Building Standards Code with amendments.
We urge you to reject their request to “support gas infrastructure” or for any exemptions for "distributed energy resources" (DER) for the following reasons:
1. Protect our climate and meet our Climate Action Plan goals: The DER exemption allows for the continued expansion of new gas pipelines in Milpitas. These soon-to-be stranded assets are a threat to our climate. While touted as “clean energy,” these fuel cells run on fossil gas 24 hours per day, 7 days per week, 365 days per year to power facilities using large amounts of energy. Scrapping the reach code altogether and not adopting the 2022 California Green Building Standards Code with amendments is completely incompatible with your commitment to protect our residents and future generation from the ravages of climate change.
2. Practice good governance: Milpitas should avoid hastily adding a last minute DER exemption, forcing Council to make a decision without full knowledge of the impacts of gas-powered fuel cells and other forms of gas-powered Distributed Energy Resources (DER).
3. Protect frontline communities: Gas-powered fuel cells perpetuate the use of fossil gas, which is extracted and refined primarily in low-income communities and BIPOC communities, who suffer serious health harms as a result. Encouraging new buildings to install new gas pipelines to power fuel cells contributes to environmental injustice.
4. Avoid unintended consequences: The DER exemption in particular can be written in such a way to open the door to other forms of dirty energy, including co-generation and tri-generation, which are highly polluting and inefficient technologies. Stet Sanborn (a LEED-certified architect from the Smith Group) explains that the exemption for DER is actually “a CO2-wolf in fuel cell clothing” that opens the door to power generation even dirtier than gas-powered fuel cells. The exemption “also includes all combined heat and power [CHP] systems, including co-gen and tri-gen systems [which use fossil fuels and generate large amounts of greenhouse gas emissions] which are far more widespread and far cheaper than Bloom fuel cells. They also have a much longer lifespan, typically lasting from 12-20 years.”
5. Remove an unnecessary and duplicative exemption: City staff report that no exemptions for new fuel cell installations have been permitted since the Natural Gas Infrastructure Prohibition Ordinance went into effect for commercial buildings in August 2021. Therefore, it appears that the ordinance is not needed. In any case, the ordinance contains a similarly worded “hardship clause” that a new facility with a mission-critical need to use fuel cells or another type of DER could apply for if there were no other solution for its energy needs. Why continue to include an exemption that is not needed and duplicates the hardship exemption?
Not approving the 2022 California Green Building Standards Code with amendments or inserting a last-minute DER exemption would move the city backwards. Milpitas currently has one of the cleanest grids in the nation and is reducing its emissions to address the climate crisis. Let’s reject this request to “support gas infrastructure” which is causing the climate crisis or allow corporations to profit off selling their ‘green’ fossil-fuel-powered equipment in Milpitas.
Hope this council continues to follow through with its commitment to ensure a just and livable world for current members of our community as well as future generations, by approving the 2022 California Green Building Standards Code with amendments this year and enacting even more ambitious climate policies and programs in the near future.
Thank you for your consideration.
Sincerely,
Acterra staff & leadership,
SVYCA students & leadership,
Mothers out Front Silicon Valley volunteers & leadership 455 EAST CALAVERAS BOULEVARD, MILPITAS, CALIFORNIA 95035-5479 GENERAL INFORMATION: 408-586-3005, WWW.MILPITAS.GOV
12/6/2022
Agenda Item No. C16
ADDITIONAL ATTACHMENT
AFTER AGENDA PACKET
DISTRIBUTION
Item C16 – Email from City Manager
CITY OF MILPITAS
From: Steven McHarris
To: Walter C. Rossmann; Ashwini Kantak; Steven McHarris Cc: Roger Lee; Suzanne Guzzetta
Subject: Item C.16 - Report on Bids and Award Construction Contract to G&G Builders Inc. in the Amount of $872,029.00 for Rehabilitation of Up to Eleven City Parks Project
Date: Tuesday, December 6, 2022 3:28:38 PM
Attachments: image006.png
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Good Afternoon Mayor Tran and Members of the City Council (bcc’d), In response to Council inquiry, I am advising the City Council of an inadvertent typographical error for the subject Agenda Report.
The staff report recommends awarding a contract for rehabilitation work at 11 City parks to address potential health and safety issues. The third paragraph in the Background section of the staff report, the report appeared to have listed twelve parks by not properly identifying the Sunnyhills Albert Augustine Memorial park.
This contract award is related to City Council approval (August 9, 2021) of an American Rescue Plan Act (ARPA) funding allocation of $4,386,815 for repairs and improvements to 20 of the City’s 36 parks. Of this amount, $1,116,000 has been scheduled to the repair and improvement of up to 11 parks administered by Public Works. The remaining $3,270,815 has been allocated to Engineering for the design and construction to address short-term repairs and improvements for 13 parks to improve the condition of parks noted as in critical and poor condition per the City’s Park & Recreation Master Plan adopted in December 2021.
The table below identifies the 20 parks as approved for rehabilitation on August 9, 2021, the condition of the parks as identified in the Park Master Plan, the park improvements included as Base Bid or Add Alternate in the recommended contract award administered by Public Works, and the parks included in the forthcoming Invitation for Bid administered by Engineering.
Name of Park
Condition of Park per
the City Council
Approved Park Master
Plan
Improvements included in
Public Works Recommended
Contract Award with G&G
Builders
Future Invitation for Bids to be
issued by Engineering (Design to
begin in January 2023)
Ben Rodger Poor X
Cerano Fair Base Bid
Foothill Poor X
Hidden Lake Poor X
John McDermott Fair Base Bid
Murphy Park Poor X
Oliver W. Jones Memorial Poor X
O'Toole Elms Fair Base Bid
Parc Metro Central Fair Add Alternate
Parc Metro East Fair Add Alternate
Parc Metro West Poor Add Alternate X
Pinewood Fair Base Bid
Robert E. Browne Poor X
Sandalwood Critical X
Selwyn Fair Base Bid
Sinnott Critical Add Alternate X
Starlite Critical X
Strickroth Critical X
Sunnyhills Albert Augustine
Jr. Memorial Poor Base Bid X
Tom Evatt Base Bid X
Let me know if you have any questions.
Steve
STEVEN G. MCHARRIS
CITY MANAGER
City Manager’s Office | City of Milpitas
455 East Calaveras Boulevard, Milpitas CA 95035
Phone (408) 586-3059Fax (408)586-3056
Email [email protected]
Smart Mobile Connections:
myMilpitasapp | Utilities&Energy
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This electronic transmission and any documents attached hereto (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. 455 EAST CALAVERAS BOULEVARD, MILPITAS, CALIFORNIA 95035-5479 GENERAL INFORMATION: 408-586-3005, WWW.MILPITAS.GOV
12/6/2022
Agenda Item No. C12
ADDITIONAL ATTACHMENT
AFTER AGENDA PACKET
DISTRIBUTION
Item C12 – Letter from Director of Economic Development Alex Andrade
CITY OF MILPITAS
From: Alex Andrade
Cc: Steven McHarris; Ashwini Kantak; Michael Mutalipassi; Suzanne Guzzetta Subject: City Council Agenda Item #C-12 - Sale of 600 S. Abel Street, #208 Date: Tuesday, December 6, 2022 4:50:06 PM
Attachments: One Bedroom BMR Now Accepting Applications!.msg image001.png
image002.png
image003.png
image004.png
Good afternoon Mayor, Vice Mayor, and City Councilmembers (bcc’d), We received a question from a Councilmember regarding item C-12 on tonight’s City Council meeting agenda, specifically about the lottery associated with the sale of the Housing Authority’s 600 S. Abel Street, #208, which is a 1-bedroom Below Market Rate (BMR) unit. This email provides a response to the question and provides additional background information.
The attached email was sent to the 874 subscribers to the BMR Program. The lottery for the sale of this moderate-income unit was held on Oct. 4, 2022. Prior to the lottery the Housing Division received 10 applications. Of the 10 applications received, 7 were deemed eligible to proceed (1 was a duplicate, 1 withdrew citing high interest rates, and 1 was disqualified due to a household size of 4 & AMI of very low income). For information on the BMR Program including web form, eligibility, lottery system, etc. click here. For additional information on the 600 S. Abel Street, #208 residential unit being sold, click here.
While 7 eligible applicants appear to be a low number compared to the need in the community, there are various items to consider on the sale of 600 S. Abel Street, #208. The previous tenant expressed interest but chose not to exercise the option to purchase after he was unable to qualify for a mortgage. The unit size is important because a 1-bedroom unit is meant to be occupied by a household of 1-3 people. The current demand is for larger units serving families of 4 people or more. Staff believes that the down payment requirement (5%-10%) is a hardship for potential applicants. In addition, increasing interest rates caused an applicant to withdraw, so the market conditions are currently challenging. For comparison, the Finch Hollow Robson Homes project included 4 BMR units of 4-bedrooms each to be sold under the moderate-income level ($800K) received approximately 3,700 clicks on Zillow, but resulted in receiving 55 applications of which 23 were deemed eligible for four units. That equals almost 6 applications per unit.
Staff anticipates over 500 BMR units to be approved or under construction in the next few years.
While most of the expected residential units will be rental, some will be for sale BMR opportunities, which will require a lottery. To ensure robust outreach to potential eligible applicants, staff will increase marketing and advertising of the future for sale BMR units through social media, Milpitas Matters and Connected publications, and host a webinar and/or a technical assistance workshop to widely share future residential ownership opportunities. If you have any questions, the City Manager’s Office, City Attorney’s Office, and I are here to assist.
Sincerely,
Alex
Alex Andrade, MPA
Economic Development Director
Phone: (408) 586-3046 Email: [email protected]
455 E. Calaveras Blvd., Milpitas CA 95035
www.milpitas.gov
455 E Calaveras Blvd, Milpitas
CA 95035 United States
You received this email because you have
submitted an application for the City of Milpitas
From: City of Milpitas on behalf of Housing
To: Michelle Silva
Subject: One Bedroom BMR Now Accepting Applications!
Date: Monday, August 15, 2022 10:58:33 AM
CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links.
View in browser
One Bedroom One Bath BMR - Now
Accepting Applications!
Hello,
A 1BR/1BA below market rate unit has become available for resale. To be eligible for the unit, eligible households must have a household size between 1-3 people and be a “Moderate-Income Household” defined as a household that has an adjusted income that is equal to or greater than eighty-one percent (81%) of AMI and less than or equal to onehundred and twenty percent (120%) of AMI.
The application period to apply will be from August 15, 2022 to no later than Friday, August 26, 2022, by 5:00 p.m. The link to apply is below.
A lottery to select the eligible buyer will be held publicly for transparency. The date of the lottery will be determined after the application period closes.
Please visit the link below for more information.
Link to application
City of Milpitas
Below Market Rate Homeownership program
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December 6, 2022
City Council Meeting
Presentations
Item No. 17: Public Hearing on Ordinance for California Building Code Adoption with Amendments
Item No. 18: Public Hearing on Ordinances for California Energy Code and Green Building Code Adoption with Amendments
Item No. 19: Public Hearing on Ordinance for California Fire Code Adoption with Local Amendments
Item No. 20 and 21: Zoning Ordinance Text Amendments for Accessory Dwelling Units (ADU’s)
Item No. 22: Water Rate Study
Item No. 23: Sewer Rate Study
Item No. C8: Receive Report on American Rescue Plan Act Investment Plan and Provide Direction
Item No. C9: Accept the City’s Annual Comprehensive Financial Report and Other Related Annual Audited Reports For the Fiscal Year Ended June 30, 2022 Item No. C12: Sale of BMR Residential Unit Located at 600 S. Abel St. #208 Item No. C16: Report on Bids and Award Construction Contract to G&G Builders Inc. in the Amount of $872,029.00 for Rehabilitation of Up to Eleven City Parks Project 1 City Council Meeting
City of Milpitas
455 E. Calaveras Blvd.
www.Milpitas.gov 408 586-3000
December 6,2022
Item 17:
Public Hearing on Ordinance for California
Building Code Adoption with Amendments
2 Triennial Code Adoption
2022 California Building Standards Code
2020
2021
1/2022
7/1/2022
Publication
Date
1/1/2023
Education & Training
Adoption & Filing
Publication
Period
Statewide
Effective
Date
Public Review
Code Advisory Committee
Hearings
Building Standards
Commission Hearings
3 Building Code Adoption
• Aligning with new bills signed into law
• Streamlining of technical codes
• Local amendments
o Improve life safety, fire safety, seismic safety
o Address local climatic, geological, or
topographical conditions
• Effective January 1, 2023
4 Recommendations
1. Open the Public Hearing; hear testimony, then move to close the public hearing.
2. Waive the second reading and adopt Ordinance No. 65.152 amending Chapters 3, 3.5, 4, 5, 6, 7, 10,14,150, and 170 of Title II of the Milpitas Municipal Code adopting by reference the 2022 California Building Code, 2022 California Residential Code, 2021 International Property Maintenance Code, 2022 California Mechanical Code, 2022 California Electrical Code, 2022 California Plumbing Code, 2021 International Swimming Pool and Spa Code, 2022 California Existing Building Code, and 2022 California Historical Building Code, with
amendments.
1 City Council Meeting
City of Milpitas
455 E. Calaveras Blvd.
www.Milpitas.gov 408 586-3000
December 6, 2022
Item 18:
Public Hearing on Ordinances for California
Energy Code and Green Building Code
Adoption with Amendments
1 2
What are Reach Codes?
• Local enhancements to state code requirements
• Initiative aimed at accelerating reduction in Green
House Gas (GHG) emissions and carbon ‘footprint’
• Proposed Milpitas Reach Codes Address Two Key
Climate Action Plan (CAP) Update Strategies:
1. Building electrification – reduced use of natural
gas (methane) and associated emissions
2. Electric vehicle (EV) charging – increased EV
readiness and availability
3 Reach Codes Applicability
• Applies to New construction, qualifying Alteration
Projects, and Existing parking upgrades where a
building permit is required
• New Construction
• Qualifying Alteration Projects
• Existing Parking Upgrades
4 Summary of Benefits
Checklist
DU Form
• Safer and healthier homes
• Advance the City’s adopted climate goals
• Facilitate much greater EV adoption
• Fiscal prudence – more cost effective to
address at new construction
4 5
Response to Council
During the October 18 2022 first reading of the proposed reach codes, Council brought forward four specific
concerns regarding the proposed reach codes:
1. What is the impact on the grid from requiring new
development to be all-electric?
2. What are the economic impacts on the housing
market from the all-electric reach code?
3. Why would the City require affordable multifamily
housing projects to install EV infrastructure when it is perceived by some that most of the residents can’t
afford an EV?
4. What incentives are available for electric vehicles. 5 6
1. What is the impact on the grid from requiring new
development to be all-electric
The State forecasts ~1% growth in load per year.
The all-electric reach codes for new construction together with solar PV with battery backup will lessen peak demand at critical times of the day when the use of electricity is highest, which will significantly lessen the impact on the grid. Many of the major stresses on the grid are caused by the very thing electrification will help stop: the use of fossil fuels. Burning fossil fuels has greatly accelerated global warming which is a significant cause of grid alerts from overheated electrical infrastructure.
6 7
2. What are the economic impacts on the housing
market from the all-electric reach code?
Notes:
1. This ratio is used by the CEC to determine cost-effectiveness. A ratio of 1.0 or greater indicates cost-effectiveness.
C-E
Study
Vintage
BenefitCost
Ratio1
Construction Cost
Savings vs MixedFuel
Single-Family 2022 >1 $6,000
ADU 2022 >1 $2,100
Multifamily Midrise 2019 >1
$ 888 per
unit
Medium Office 2019 1.0 $106,083
Medium Retail 2019 >1 $23,087
Small Hotel 2019 >1 $1,311,651
In Milpitas constructing an average size all-electric single-family home is generally about $6,000 less to construct than building a mixed-fuel home.
The benefit /cost ratios for the occupancies is 1 or greater which indicates costeffectiveness based on studies completed in 2019 and 2022. 7 8
3. Why would the City require affordable multifamily housing to install EV chargers when it is perceived by some that most residents can’t afford an EV?
• Even though the initial cost of an EV is generally more, the overall 5-year cost of ownership is often less, given the high cost of gas and maintenance for a gas-powered car. • The long-term value of installing EV infrastructure during new construction, including affordable housing, will be significantly less expensive than retrofitting existing buildings at the inconvenience of the occupants.
Market Rate
25% Level 2
75% Level 1
Affordable Housing
20% Level 2
80% Level 1
Building Type New
Construction
Retrofit New
Construction
Retrofit
60-Unit
Residential
$1,410 $4,443 $1,049 $3,982
150-Unit
Residential
$1,197 $4,101 $1,002 $3,854
60-Space Office
Building
$1,166 $3232 N/A N/A
Notes:
1. Table based on Electric Vehicle Infrastructure Cost Analysis Report for Peninsula Clean Energy (PCE) & Silicon Valley Clean Energy (SVCE) November 2019.
2. “New Construction" and “Retrofit” costs are relative to a CALGreen 2019 mandatory baseline building 8 9 3. Why would the City require affordable multifamily housing to install EV chargers when it is perceived by some that most residents can’t afford an EV? (Continued)
• California law requires that nearly all new vehicles sold in 2035 (just 13 years away) be electric vehicles.
• Multi-family buildings generally have a life expectancy of about 50 years • As a result, residents, even lower income residents, will be predominantly driving EVs for the majority of the life of the building. • Silicon Valley Clean Energy (SVCE) will provide a subsidy to offset cost for low-income and very low-income developments built during this building code cycle.
9 10
4. What Incentives are available for
Electric Vehicles
• California Clean Vehicle Rebate Project
o incentives for purchase or lease of electric vehicles o low-income applicants eligible for higher incentives
o Is currently accepting applications
• Clean Vehicle Credit Program
o federal tax credit for electric vehicle purchase
o Minimum $2500, maximum $7500
• Silicon Valley Clean Energy (SVCE) EV Assistant Tool
o provides personalized list of incentives for individuals shopping for an EV
10 11
Recommendations
(1) Open the Public Hearing; hear testimony, then move to close the public hearing.
(2) Waive the second reading and adopt Ordinance No. 65.153 amending Chapter 11 of Title II of the Milpitas Municipal Code adopting by reference the 2022 California Energy Code and
(3) Waive the second reading and adopt Ordinance No. 65.154 amending Chapter 19 of Title II of the Milpitas Municipal Code adopting by reference the 2022 California Green Building Standards Code with amendments.
11 12
City of Milpitas
455 E. Calaveras Blvd., Milpitas, CA 95035
www.Milpitas.gov
408 586-3000
12 13
Backup Slides
14 What Other Agencies Have Done
City Buildings Electric
Vehicles
Choice of All-Electric or
High Efficiency MixedFuel
All-Electric with Limited
Gas Usage
Natural Gas Ban
Burlingame Exploring EV Ready code (PCE
model)
Brisbane ADOPTED Aggressive EV Ready code
Menlo Park ADOPTED Increase chargers & EV
Capable (2018)
Milpitas ADOPTED Increase chargers & EV
Capable / Ready
Morgan Hill ADOPTED
Mountain View ADOPTED Aggressive EV Ready code
Pacifica ADOPTED Increase chargers (2017)
Palo Alto ADOPTED Aggressive EV Ready
codes
Redwood City Council OK EV Ready code (PCE
model)
San Mateo ADOPTED Increase chargers 7 EV
Capable
San Jose ADOPTED ADOPTED (low rise) Increase chargers & EV Capable
San Mateo Co. BOARD OK Proposed EV Ready code (PCE
model) 14
15 Electric is already Preferred Nationwide
Of national new
construction homes:1
60% use electric
space heating (40% of
which are heat
pumps2)
55% use electric water
heating
62% use electric
cooking
75% use electric
clothes drying
Sources:
1 - 2017 American Community Survey
2 - 2017 IEA Heat Pump Conference
Proceedings
15 16
2022 CA Energy Code
Requirements for New Construction
Heat pumps are now the prescriptive baseline
and required pre-wiring ( electric readiness) has
been expanded significantly over previous code.
Residential
Space heating in climate zone 3, 4
Water heating in climate zone 12
Residential
Pre-wiring required for gas appliances
Higher ventilation rate for gas stoves
Energy storage readiness is required
Nonresidential
Water and/or space-heating for most building types
Performance credit for all-electric design
Solar PV and Battery Storage prescriptive
16 17
Milpitas All-Electric Reach Code
Summary of main requirements and exceptions
Reach Code for all-electric requirements and exceptions are amendments to the 2022 California Title 24 Part 11 – California Green Building Standards Code, Chapters 4 and 5, Divisions 4.1 and 5.1 Planning and Design Chapter 4 Section 4.106 Residential Mandatory Measures Site Development:
o All newly constructed buildings shall be all-electric buildings. o Qualifying Alterations that include replacement or addition of over 50% of foundation or where over 50% of existing framing is removed / replaced, shall be all-electric buildings.
o Exceptions:
1. Multi-family residential buildings that have City Council approved entitlements before the effective date of the adopted code may install fuel gas for water heating systems.
2. If applicant establishes that there is not an all-electric prescriptive pathway under the Calif. Building Energy Efficiency Standard, the City may grant a modification. 17
18 Milpitas All-Electric Reach Code
(continued)
Chapter 5 Non-Residential Mandatory Measures Site Development:
o All newly constructed buildings shall be all-electric buildings. o Alterations that include replacement or addition of over 50% of foundation or where over 50% of existing framing is removed / replaced, shall be all-electric buildings.
o Exceptions:
1. If applicant establishes that there is not an all-electric prescriptive pathway under the Calif. Building Energy Efficiency Standard, the City may grant a modification.
2.Non-residential buildings containing kitchens located in a place of public accommodation may apply to the City for a
modification to install commercial food heat-processing equipment served by fuel gas.
18 19
Milpitas EV Charging Infrastructure
(EVCI) Reach Code
Summary of main requirements and exceptions
Reach Code for EVCI requirements and exceptions are amendments to the 2022 California Title 24 Part 11 – California Green Building Standards Code, Chapters 4 and 5, Divisions 4.1 and 5.1 Planning and Design.
Chapter 4 Section 4.106 Residential Mandatory Measures Site Development:
o Electric Vehicle Charging – new construction shall comply with the requirements in Division 4.1 Planning and Design Section 4.106 to facilitate future installation and use of EV chargers.
o Exceptions:
1.Where there is no local utility power supply, or the local utility is unable to supply adequate power.
2. Accessory Dwelling Units (ADU) and Junior Accessory Dwelling Units (JADU)without additional parking facilities.
3. Multifamily residential R-2 building projects that have City Council approved entitlements before the effective date of the code.
19 20
Milpitas EV Charging Infrastructure
(EVCI) Reach Code
Chapter 5 Section 5.106 Non- Residential Mandatory Measures Site Development:
o Electric Vehicle Charging – Construction to provide electric vehicle infrastructure and facilitate electric vehicle charging shall comply with the requirements under this section.
o Exceptions:
1.Where there is no local utility power supply, or the local utility is unable to supply adequate power.
2. Vehicle space accessible only by automated mechanical car parking systems are not required to comply with this code section. 20 21
EV Code Terminology
Speed Readiness
Level 1
3-4 miles per
charging hour
Level 2
10-20 miles per
charging hour
Level 3
150+ miles per
charging hour
Number
EV Capable
EV Ready
EV Station Installed
% of Vehicle
Spaces
Level 1 EV Ready - A vehicle space served by a minimum of 2.2 kVa (110-120 volt, 20-amp) electrical wiring.
Level 2 EV Ready - A vehicle space served by a minimum of 8.3kVa (208/240)volt, 40-amp) capacity wiring.
Low Power Level 2 - A vehicle space served by a minimum of 4.1kVa (208/240) volt, 20-amp) capacity wiring.
Level 2 EV Capable - A vehicle space provided with conduit connecting an electrical panel to a junction box with no receptacle and room in the panel reserved for future breaker. Conduit shall accommodate 8.3 kVa (208-240 volt, 40 amp)capacity wiring. 21 22
Electric Vehicle Charging Infrastructure
(EVCI) for New One and Two-Family
Dwellings and Townhomes
2016 CALGreen 2019 CALGreen
Milpitas Proposed
Mandatory Mandatory
Single Family,
Two-Family, and
Townhome
(1) Level 2 EV Capable for one
vehicle space per dwelling
unit
2 EV spaces total:
• 1 Level 2 EV Ready circuit
• 1 Level 1 EV Ready circuit
22 23
Building Type Quantity Readiness Speed
One and two-family
dwellings and
Townhomes
*ADUs are exempt
1 per dwelling unit Ready Level 2
1 per dwelling unit Ready Level 1
Multi-Family
Dwellings
Multi-Family
Affordable
25% of resident vehicle
spaces
75% of resident vehicle
spaces
Installed
Ready
Level 2 EVCS
Low Power Level 2
20% of resident vehicle
spaces
80% of residential spaces
Installed
Ready
Level 2 EVCS
Level 1
Office
Hotel / Motel
20% of total spaces Installed Level 2 EVCS
30% of total spaces Ready Level 2
5% of total spaces
25% of total spaces
Installed
Ready
Level 2 EVCS
Low Power Level 2
Other
Nonresidential
Occupancies
10% of total spaces Installed Level 2 EVCS
10% of total spaces Capable Level 2
EVCI for All New Occupancies
23 24
EVCI for Existing Buildings
One- and Two-Family Dwellings and Townhomes
Parking Additions shall have electrical capacity and EV infrastructure same as for New Construction.
Multifamily, Office, Hotel / Motel, and Other Nonresidential Occupancies When new vehicle spaces are added or existing spaces are altered and the work requires a building permit, ten percent (10%) of the total number of vehicle spaces added or altered shall have access to EVCS Level 2 Ready infrastructure.
Any existing Level 1 Capable spaces shall be upgraded to Level 1 Ready. 24 25
Automatic Load Management System
(ALMS)
1 car
charging
7.2kW
3.6kW
2 cars
charging
3.6kW
1.8kW
4 cars
charging
1.8kW 1.8kW 1.8kW
This illustration is one approach among several ALMS approaches to load management
The Calif. Electrical Code Article 625
allows the use of ALMS and Milpitas
encourages developers and builders to
utilize ALMS to share electrical
capacity and / or automatically manage
power at each connection point.
25 26
Electrical Vehicle Infrastructure Rule 29
Overview
PG&E’s Electric Vehicle Infrastructure Rule 29 will pay for and coordinate the design and deployment of service extensions from PG&E’s electrical distribution line facilities to the service delivery point for separately metered electric vehicle (EV)charging stations.
In addition to Electric Rule 29, for distribution line extension work, Electric Rule 15 may also apply. This rule only applies to commercial, industrial, and multi-family customers. This does not apply to single-family homes.
Eligibility – Applicants must plan to purchase and install qualified EV charging stations, other than those used on single-family residences, and maintain and operate them for at least 5 years. 26 27
Program Offerings and Service Assistance for
Business and Property Owners
Electric Vehicle Charger Funding Available for Multifamily Properties
https://www.svcleanenergy.org/news/electric-vehicle-charger-funding-available-formultifamily-properties/ FutureFit Assist: EV Charging for Small- and Medium-Sized Businesses. Silicon Valley Clean Energy has launched a program to support the deployment of electric vehicle (EV) charging stations at participating local small and medium-sized commercial properties at no cost to the businesses.
EV-Assist-Commercial.pdf (svcleanenergy.org)
SVCE will fund the additional construction costs associated with EV Reach Code requirements for Affordable Housing projects. 27 28
Program Offerings and Service Assistance for
Business and Property Owners (Continued)
FutureFit Heat Pump Water Heater Program. Rebates of $2000 available for change out a gas water heater to heat pump. Additional rebates are also available for electric service upgrade +$1500 and CARE/FERA customers +$1500.
https://www.svcleanenergy.org/water-heating/
Bay Area Regional Energy Network (BAYREN) Rebates and
Financing Program. Rebates for homeowners and multifamily property owners, and financing for businesses, covering heat pumps, induction cooktops, insulation, HVAC upgrades and more.
Small & Medium Businesses | Bay Area Regional Energy Network (bayren.org) Coming Soon! Inflation Reduction Act will include millions of dollars for EV charging infrastructure deployment, energy efficiency, and electrification.
28 Milpitas City Council Meeting
Item # 19: Public Hearing on
Ordinance for California Fire Code
Adoption with Local Amendments
December 6, 2022
City of Milpitas
455 E. Calaveras Blvd., Milpitas, CA 95035
www.milpitas.gov 408-586-3000
2 Ordinance No. 113.26 was introduced at first reading during the City Council Meeting on October 18, 2022
This Ordinance repeals and replaces Chapter 300 of Title V of the Milpitas Municipal Code, adopting by reference the 2022 California Fire Code (CFC) along with specific local amendments
City Council did not request any changes to the Ordinance and directed Staff to notice a public hearing for tonight's meeting The Ordinance is ready for adoption
Background
Footer Here
3 The City of Milpitas is a Regulatory Agency
Three basic tenets of the California Fire Code: permit
issuance, inspection and enforcement
Provisions under the California Fire Code are statutory and provide for the minimum fire life-safety and fire protection for all facilities, associated operations and occupants
The purpose of the Ordinance adoption is to ensure public safety Discussion
Footer Here
4 Following the City Attorney reading aloud the title of Ordinance No. 113.26, waive the second reading beyond the title
Open the public hearing and move to close following any comments Adopt Ordinance No. 113.26, enacted as Chapter 300, Title V of the Milpitas Municipal Code
Recommendations
Footer Here
City of Milpitas
455 E. Calaveras Blvd., Milpitas, CA 95035
www.milpitas.gov 408-586-3000
Milpitas City Council
Item Nos. 20 and 21:
Zoning Ordinance Text Amendments for
Accessory Dwelling Units (ADU’s)
December 6, 2022
City of Milpitas
455 E. Calaveras Blvd., Milpitas, CA 95035
www.ci.milpitas.ca.gov 408-586-3000
2 ADU Items for Council Consideration
1. Urgency Ordinance (for adoption)
• Consistent with recent changes to state ADU law
• Effective immediately upon adoption (12/06/2022)
• Local Milpitas ADU regulations remain in effect on 01/01/2023 • Sunsets after 6 months or on effective date of Regular Ordinance
2. Regular Ordinance (for introduction and first reading) • Provisions are identical to Urgency Ordinance
• Second Reading and Adoption (12/20/2022)
• Effective 30 days after final adoption (01/20/2023)
• Ensures Milpitas ADU regulations are consistent with State law One Presentation and Public Hearing – Two Separate Ordinances 3 Background
• On September 28, 2022, the California Legislature approved Assembly Bill 2221 and Senate Bill 897 to amend state law relating to Accessory Dwelling Units (ADUs) and Junior
Accessory Dwelling Units (JADUs)
• State law requires consistency between state ADU law and local regulations for ADUs and JADUs
• The City must update its ADU Ordinance for consistency with state ADU law by January 1, 2023, or our local ADU regulations may be deemed null and void.
4 Overview • Amends Subsection 13.8
“Accessory Dwelling Units” of
Section 13 “Special Uses” of
Chapter 10 “Zoning” of MMC
X1-10-13.8
• Updates the ADU Ordinance for
consistency with AB2221 and
SB897 and makes other changes
in organization and minor edits to
clarify standards and streamline
the approval process.
5 Proposed Amendment – Height
• Increases maximum height of a detached ADU from 16 feet to 18 feet if the site is located within ½-mile walking distance of a major transit stop or a high-quality transit corridor. Ministerial approval. • Allows two additional feet (for a maximum of up to 20 feet) for a detached ADU if needed to align the ADU roof pitch with primary unit. • Increases maximum height for an attached ADU to 25 feet or height limit of the underlying zone, whichever is lower. The attached ADU height may not exceed two stories. Ministerial approval. 6 Proposed Amendment
• Requires a minimum 20-foot frontyard setback for all ADUs but must yield to allow an ADU of at least 800
square feet.
• Prohibits the City from imposing any
parking standards on ADUs that are
new construction.
• Requires concurrent review and
issuance of a demolition permit for a
detached garage that is to be
replaced by an ADU.
7 Proposed Amendment
• Prohibits denial of a permit to
legalize an unpermitted ADU
constructed before January 1,
2018, because the unit is in
violation of building standards or
state or local ADU standards
• This prohibition does not apply to
structures deemed substandard
under state law.
• Prohibits denial of an application
to create a new ADU or JADU
based on the need to correct
nonconforming zoning conditions,
building code violations, or
unpermitted structures on the
same lot
8 Proposed Amendment
• Adding an ADU does not change the
occupancy rating of the existing primary
dwelling unit.
• Adding an ADU does not trigger a
requirement for fire sprinklers in the
existing primary dwelling unit.
• Adding an ADU does not require modifying
a primary dwelling unit that does not meet
existing height or setback requirements.
• If the City denies an ADU or JADU
application, the City must return a full set
of written comments to the applicant with a
list of items that are defective or deficient
and a description of how the application
can be remedied by the applicant.
9 Findings
• The proposed amendment is consistent with the
General Plan.
• The proposed amendment will not adversely affect the
public health, safety, and welfare.
CEQA Determination
Statutorily exempt from environmental review under the California Environmental Quality Act (CEQA) pursuant to Public Resource Code Section 21080.17 (Application of
Division to Ordinances Implementing Law Relating to
Construction of Dwelling Units and Second Units)
11 Planning Commission Review
The Planning Commission considered the proposed
zoning text amendment at its regularly scheduled public meeting on November 9, 2022.
The Planning Commission voted unanimously (7-0) to
recommend that the City Council adopt an urgency
ordinance to immediately update the City’s regulations
for ADUs and JADUs to ensure consistency with state
ADU law on January 1, 2023.
The Commission also supported Council adoption of a
regular ordinance to replace the urgency ordinance and
establish updated regulations for ADUs and JADUs on a
permanent basis.
12 Recommendation – Urgency Ordinance
Conduct a public hearing and move to close the hearing following comments.
Adopt an Urgency Ordinance amending Section 13 “Special Uses” of Chapter 10 “Zoning” of Title XI of the Milpitas Municipal Code to comply with Government Code Section(s) 65852.2, 65852.22, 65852.23 and Section 17980.12 of the Health and Safety Code and making findings of CEQA exemption
13 Recommendation – Regular Ordinance
Conduct a public hearing and move to close the hearing following comments.
City Attorney shall read aloud title of the Regular Ordinance. Move to waive the first reading beyond title and introduce an Ordinance amending Section 13 “Special Uses” of Chapter 10 “Zoning” of Title XI of the Milpitas Municipal Code relating to Accessory Dwelling Units (ADUs) and Junior Accessory
Dwelling Units (JADUs) and making findings of CEQA
exemption.
City of Milpitas
455 E. Calaveras Blvd., Milpitas, CA 95035
www.ci.milpitas.ca.gov 408-586-3000
City of Milpitas
Item #22: Water Rate Study
City Council Meeting
December 6, 2022
2 Agenda
Background
Draft Water Rate Study
Drivers for Rate Increases, Recommended Rates, Sewer Fund Projections Proposition 218 Process
Recommendations
3 Background
4 Water Utility Overview
Serves approximately 16,750 customer accounts plus recycled customer accounts
206 miles of pipeline, four pumping stations, five storage reservoirs and pressure valves regulating seven pressure zones
Delivers on average 11 million gallons of drinking water per day The City purchases wholesale drinking water from the San Francisco Public Utilities Commission and Valley Water
Master Plan adopted by City Council on August 9, 2022 Water Master Plan Approved Capital
Improvement Program
The major FY2024-28 capital improvements for the water utility include:
Replacement or rehabilitation of assets or facilities. Projects include replacement of ageing pipes, valves and improvements to above grade facilities such as pump stations and water tanks. ($16.5 million)
Detailed condition assessment of Water System ($2.7 million) Pipeline replacement to improve flow in the system for fire suppression ($6.5 million) Citywide cross connection survey ($750,000)
6 Single Family Residential Water Cost
(Bi-Monthly)
Cost Components Current Rates
5/8" Fixed Meter Charge $34.10
Volumetric Charge $6.70 x 14 HCF = $93.80
Capital Surcharge $1.08 x 14 HCF = $15.12
Bi-Monthly Bill Amount $143.02
7 Draft Water Rate Study
8 Drivers of Water Rate Increase
9 Water Utility Fund Reserves Analysis
- FY2028 estimated reserves
Capital for Emergencies $11.3M or 88% of target level Rate Stabilization $4.9M or 68% of target level
Pension Liability Reserve $0.8M has no target level
Infrastructure (Capital Improvement Program) reserve $5.6M exceeds target level of "at least $2M" 10 FY 2024-28 Water Utility Fund
Cashflow Projections
$-
$10
$20
$30
$40
$50
$60
FY 2023 FY 2024 FY 2025 FY 2026 FY 2027 FY 2028
Millions
Rate Funded Capital
Proposed Debt Service
Existing Debt Service
Water Purchases
Operating Expenses
Revenue at Proposed Rates
Revenue at Current Rates
11 Draft Proposed Five-Year Water
Rates/Charges for Single Family Residence
Typical BiMonthly Bill FY2023
(Current Rate) FY2024 FY2025 FY2026 FY2027 FY2028
Fixed Charge $34.10 $35.87 $38.21 $40.70 $43.35 $46.17
Volume Charge $93.80 $100.38 $106.96 $113.96 $121.38 $129.36 Capital Charge $15.12 $15.96 $16.80 $17.64 $18.62 $19.60 Total $143.02 $152.21 $161.97 $172.30 $183.35 $195.13
$ Change $9.19 $9.76 $10.33 $11.05 $11.78
% change 6.4% 6.4% 6.4% 6.4% 6.4%
Residential increases estimated on August 9, 2022 (date of Water Master Plan Adoption):
6.4% for FY 2024 to FY 2026 and 3.8% for FY 2027 to FY 2028. 12 Water Rate Comparison for Single Family
Residence Bi-Monthly
Proposed rates and charges will be approximately $11.87 less than the average of similar public agency water systems.
This comparison does not include any forthcoming rate increases from other water systems. 13 Proposition 218 Process
14 Proposition 218
1. Charges shall not exceed the costs required to provide service. Revenues shall not be used for any purpose other than that for which the charge was imposed.
2. Requires local agencies imposing any new or any increases in any existing property-related fees and charges to comply with certain procedural requirements prior to their adoption.
Hold a public hearing
Provide ratepayers and property owners with a written notice of the proposed rate increases, and the date, time and location of the public hearing If a majority of parcels submit protests, the City cannot adopt the proposed rates.
15 Timeline
Date Meeting Action
December 6, 2022 City Council Council consideration to start Prop 218 process
January-February 2023 Community
Community Outreach to single
family residences, multi-family,
mobile homes and businesses
March 7, 2023 City Council
Public Hearing
Council consideration of proposed
rates
May 9, 2023 City Council FY 2023-24 Operating Budget
Study Session
June 6, 2023 City Council Public Hearing and FY 2023-24 Budget Adoption
July 1, 2023 Implementation of proposed rates and charges 16 Recommendations
1. Receive Staff Report on Draft Water Rates Study
2. Direct Staff to Proceed with Community Engagement on Proposed Rates, Including Identifying a Date for the Public Hearing; and
3. Mailing a Notice of the Public Hearing for the Proposed Water Rates
17 Questions
City of Milpitas
Item #23: Sewer Rate Study
City Council Meeting
December 6, 2022
2 Agenda
Background
Draft Sewer Rate Study
Drivers for Rate Increases, Recommended Rates, Sewer Fund Projections Proposition 218 Process
Recommendations
3 Background
4 Sewer Utility Overview
City is responsible for the collection of sewage, which is conveyed for treatment to the San Jose/Santa Clara Regional Wastewater Facility (RWF)
Serves approximately 15,350 customer accounts
175 miles of pipeline and two pumping stations
Conveys an average rate of 6-7 million gallons per day to the RWF The cost to customers of the Sewer System for treatment at the RWF is determined by a master agreement between the City and the RWF
Treated water is released to the San Francisco Bay or recycled for industrial and irrigation purposes
Master Plan adopted by City Council on August 9, 2022 Sewer Master Plan Approved Capital
Improvement Program
The major FY 2024-28 capital improvements for the sewer utility include:
Pipeline replacement and pump station improvements of Force Main A ($26.1M) Replacement or rehabilitation for assets or facilities. Projects include replacement of aging pipes, and appurtenances ($6.4M)
Detailed in pipe condition assessment ($2.1M)
City share of capital costs to RWF ($30.1M)
6 Residential Sewer Costs (Bi-Monthly)
Residential Customer Class Current Bi-monthly Rate
Single-Family Residential $124.14
Multi-Family Residential $95.34
Mobile Home Park $78.28*
* Mobile home bi-monthly sewer rate currently subsidized by $18.43 bi-monthly 7 Draft Sewer Rate Study
8 Drivers of Sewer Rate Increase
9 Sewer Utility Fund Reserves Analysis
- FY2028 estimated reserves
Capital Reserve for Emergencies $5.2M at 100% of target level. Rate Stabilization $3.5M at 100% of target level.
Pension liability reserve $11M has no target level.
Infrastructure (Capital Improvement Program) reserve $1.8M is 90% of target level ("at least $2M") 10 FY 2024-28 Sewer Utility Fund
Cashflow Projections
$-
$5,000,000
$10,000,000
$15,000,000
$20,000,000
$25,000,000
$30,000,000
$35,000,000
$40,000,000
$45,000,000
FY 2023 FY 2024 FY 2025 FY 2026 FY 2027 FY 2028
Rate Funded Capital
Proposed Debt Service
Existing Debt Service
San Jose Capital
San Jose O&M
Operating Expenses
Revenue at Current Rates
Revenue at Proposed Rates
11 Force Main A - Recommendation
Benefits
FY 2024
% increase
$ increase
FY2025
% increase
$ increase
FY2026
% increase
$ increase
FY 2027
% increase
$increase
FY 2028
% increase
$ increase
Recommendation
(based on current
condition of
Force Main A)
• Construction in
FY25/26
• Requires up to a
$20 million
bond amortized up
to 30 years
• Timely replacement
of a critical asset
4%
$4.30
bi- monthly
4%
$5.14
bi-monthly
4%
$5.35
bi-monthly
4%
$5.56
bi-monthly
4%
$5.78
bi-monthly
Alternative
• Construction start
FY28/29
• Requires no bond
• Delays critical
improvement
6%
$7.76
bi-monthly
6%
$7.86
bi-monthly
6%
$8.33
bi-monthly
6%
$8.83
bi-monthly
6%
$9.36
bi-monthly
12 Draft Proposed 5–Year Sewer Rates
Rate/Charges for Residential & Businesses
Bi-Monthly
Rate Schedule
FY 2023
(Current Rate)
FY 2024 FY 2025 FY 2026 FY 2027 FY 2028 Annual
% Change
Single Family $124.14 $128.44 $133.58 $138.93 $144.49 $150.27 3.9% Multi-Family $95.34 $97.96 $101.88 $105.96 $110.20 $114.61 3.8% Mobile
Home Parks * $78.28 $84.43 $91.06 $98.21 $105.73 $114.22 7.9% Businesses -9.4% to 20.1% 4% to 4.1%
* Mobile Home Parks – proposed phase out of subsidy
Residential increases estimated on August 9, 2022 (date of Sewer Master Plan Adoption): 4% for FY 2024 to FY 2028 Mobile Home Subsidy History
Began in April 2019
FY22/23 subsidized rate remains significantly behind multi-family rate If subsidy does not continue, 24.7% increase ($19.36 bi-monthly) required.
Bi-Monthly Rate
Schedule FY 2018 FY 2019 FY 2020 FY 2021 FY 2022 FY 2023 Mobile Home Parks
(no subsidy) $56.97 $76.03 $79.86 $86.53 $92.19 $95.71
33% 5% 8% 7% 5%
Mobile Home Parks
(w/ subsidy) $56.97 $61.61 $64.70 $70.08 $74.66 $78.28
8% 5% 8% 7% 5%
Multi -Family $69.32 $74.96 (4%) $78.73 (8%) $85.30 (8%) $90.88 (7%) $95.34 (6%) 14 Mobile Homes – Phasing out the Subsidy
(Bi-Monthly Rates)
Mobile Homes
FY 2023
(Current Rate) FY 2024 FY 2025 FY 2026 FY 2027 FY 2028
Subsidized Rate $78.28 $84.43 $91.06 $98.21 $105.93 $114.22 $ Change $6.15 $6.63 $7.15 $7.72 $8.29
% Increase 7.9% 7.9% 7.9% 7.9% 7.9%
Cumulative Subsidy
Amount $ - $41,285 $74,073 $97,224 $109,481 $109,481
Mobile Homes
FY 2023
(Current Rate) FY 2024 FY 2025 FY 2026 FY 2027 FY 2028
Subsidized Rate $78.28 $83.76 $89.96 $96.97 $105.02 $114.22 $ Change $5.48 $6.20 $7.02 $8.05 $9.20
% Increase 7% 7.4% 7.8% 8.3% 8.8%
Cumulative Subsidy
Amount $ - $43,296 $79,440 $106,372 $121,366 $121,366
Recommended Option 1 – Level Increase for five-years
Option 2 – Gradual Increase for five-years
15 Draft Proposed 5-Year Sewer Rate
Rates/Charges for Businesses
Businesses are charged differently than residential
Amount is based on waste characteristics
City cost is determined by charges from the treatment plant Changes to rate/charges varies by business with greatest increase occurring in FY2024 For FY2025-2028 fixed and volume charges for businesses are 4 - 4.1% annually Business Type FY2024 Fixed Charge Fy2024 Volume Charge
Schools/Colleges 7% 15.9%
Motels/Hotels 7% -1.8%
General Office 7% 1.2%
Restaurants 7% 20.1%
16 Sewer rate comparison for Single Family
Residence Bi-Monthly
Proposed rates and charges will be approximately $22 less than the average of similar public agency sewer systems. This comparison does not include any forthcoming rate increases from other sewer systems. 17 Proposition 218 Process
18 Proposition 218
1. Charges shall not exceed the costs required to provide service. Revenues shall not be used for any purpose other than that for which the charge was imposed.
2. Requires local agencies imposing any new or any increases in any existing property-related fees and charges to comply with certain procedural requirements prior to their adoption.
Hold a public hearing
Provide ratepayers and property owners with a written notice of the proposed rate increases, and the date, time and location of the public hearing If a majority of parcels submit protests, the City cannot adopt the proposed rates.
19 Timeline
Date Meeting Action
December 6, 2022 City Council Council consideration to start Prop 218 process
January-February 2023 Community
Community Outreach to single
family residences, multi-family,
mobile homes and businesses
March 7, 2023 City Council
Public Hearing
Council consideration of proposed
rates
May 9, 2023 City Council FY 2023-24 Operating Budget
Study Session
June 6, 2023 City Council Public Hearing and FY 2023-24 Budget Adoption
July 1, 2023 Implementation of proposed rates and charges 20 Recommendations
1. Receive Staff Report on Draft Sewer Rates Study
2. Direct Staff to Proceed with Community Engagement on Proposed Rates, Including Identifying a Date for the Public Hearing; and
3. Mailing a Notice of the Public Hearing for the Proposed Sewer Rates
21 Questions
City of Milpitas
City Council
Item #C-12: Sale of BMR Residential Unit
Located at 600 S. Abel St. #208
Dec. 6, 2022
City of Milpitas
455 E. Calaveras Blvd., Milpitas, CA 95035
www.ci.milpitas.ca.gov 408-586-3000
2 Background
On Feb. 1, 2012, Redevelopment Agencies were dissolved by the State.
Milpitas City Council adopted Resolution No. 8062 in February 2011 to establish City of Milpitas Housing Authority as Successor Agency. 13 properties were transferred to the Housing Authority Properties developed w/in 5 years of being acquired, activities initiated consistent w/development for affordable housing purposes, or sold, & proceeds deposited into Low/Moderate Income Housing Asset Fund. Extension (5 yrs.) 1 residential unit left of 13 properties owned by Housing Authority 600 S. Abel Street Unit #208 rented to a low-income household Lease Agreement w/option to purchase. Lease expired in 2014 Option to Purchase was not exercised by tenants
3 Below Market Rate (BMR) Program
BMR program eligibility
• First time homebuyer
• Very Low, Low, & Moderate income household
• Household size based on unit size
• Ability to provide at least a 5-10% down payment
• Pre-qualification letter; requires good credit
• Documents validating application (i.e., W2, lease agreement, paycheck stubs, tax) BMR unit purchase selection process
• Existing tenants, if any, get first right of refusal to buy the unit • If existing tenant does not wish to purchase unit, a lottery is held • Selection is based on preferences related to residency and other requirements as outlined in the program
4 600 S. Abel St. #208 Unit Purchase
October 4, 2022: Housing Div. held lottery to procure eligible buyer Application period: August 15-26, 2022
874 subscribed through BMR Homeownership Form on City website 10 applications were received by the Housing Division
• 1 was a duplicate
• 1 withdrew citing high interest rates
• 1 was disqualified due to household size of 4 & AMI of very low • 7 applications were eligible to proceed
Selected buyer assigned 7 lottery tickets: eligible participant (1), Milpitas Resident (5), & work in Milpitas (1)
5 Considerations for 600 S. Abel St. #208
Previous tenant expressed interest but chose not to exercise the option to purchase after he was unable to qualify for a mortgage Unit Size – eligible household size for 1 bedroom unit is 1-3 people, precluding several families of 4 or more
Down payment requirement was a hardship for some potential applicants
Increasing interest rates caused an applicant to withdraw; market conditions not conducive to buying a home
Although 874 subscribers in BMR program only 10 applicants for this unit
6 Future Opportunities
Approximately 50 BMR units will be available for purchase in the next 3 years
All units will need to follow the City prescribed BMR process For-sale properties will allow more opportunities for eligibility Significant increase in BMR units will require additional staffing resources, staff will bring back recommendations for Council consideration as part of the budget process
Outreach for the BMR program will leverage City social media channels and other outreach forums
Staff will explore hosting webinars and providing technical assistance to eligible applicants
7 Recommendation
1. Adopt the Resolution authorizing the Executive Director of the Milpitas Housing Authority to execute documents for the sale of the residential property located at 600 S. Abel Street Unit #208 in the amount of $314,973.
2. Approve related budget amendments due to the sale of the property located at 600 S. Abel Street Unit #208 in the amount of $314,973.
City of Milpitas
455 E. Calaveras Blvd., Milpitas, CA 95035
www.ci.milpitas.ca.gov 408-586-3000
December 6, 2022
Item C16.
Report on Bids and Award Construction Contract to
G&G Builders Inc. in the Amount of $872,029.00 for
Rehabilitation of Up to Eleven City Parks Project
2 ARPA Parks Rehabilitation Project
3 Cerano Park (base bid)
• Poured-in-Place (PIP) Surface
Remove and dispose of the existing Poured-inPlace (PIP) Surface and replace it with new Poured-in-Place (PIP) Surface for both 2-5 yr. old
and 5-12 yr. old play areas.
• Composite Structure Equipment
Remove and dispose of the existing Net Climber
and Double Slide from 2-5 yr old play area and
replace with similar equipment.
4 Cerano Park (cont.) (base bid)
5 John McDermott Park (base bid)
• Engineered Wood Fiber (EWF) Surface
Remove and dispose existing EWF from 2-5
yr and 5-12 yr play areas and replace with new
EWF.
• Repair Poured-in-Place (PIP) Surface
Repair damaged sections of the surface and the
edges of existing PIP surface. Roll coat with
aliphatic blinder and cure.
• Composite Structure Equipment
The existing Gametime slide in the 5-12 yr. old
play area has neck entrapment issue, so it shall
be removed and replaced with a new Gametime
Swerve Slide or equal.
6 O'Toole Elms Park (base bid)
• Repair Poured-in-Place (PIP) Surface
Repair PIP in 2-5 yr old and 5-12 yr old play
area.
7 Parc Metro (Central) (add alternate)
•Poured-in-Place (PIP) Surface
Remove and dispose the existing PIP Surface
and replace it with new PIP Surface.
•Composite Structure Equipment - Equipment
Replacement
Remove existing 3 play structures and replace
with new play structures.
8 Parc Metro (East) (add alternate)
•Poured-in-Place (PIP) Surface
Remove and dispose existing sand and replace
with new PIP Surface.
•Composite Structure Equipment - Equipment
Replacement
Remove and dispose of 1 play structure and
install new play structure for 2-5 yr old.
9 Parc Metro (West) (add alternate)
•Poured-in-Place (PIP) Surface
Remove and dispose existing sand and replace
with new PIP Surface.
•Composite Structure Equipment - Equipment
Replacement
Remove and dispose of 2 play structures and
install new play structure for 2-5 yr old and 5-12
yr old.
10 Pinewood Park (base bid)
•Engineered Wood Fiber (EWF)
Remove and dispose the existing sand from the
2-5 yr. old and 5-12 yr. play areas and replace it
with Engineered Wood Fiber .
•Poured-in-Place (PIP) Surface
Remove and dispose the existing PIP Surface
from the 2-5 yr. old and 5-12 yr. play areas and
replace it with new PIP Surface.
•Composite Structure Equipment - Equipment
Replacement
5-12 yr. Old Play Area – replace spiral and
curved slides with similar.
11 Selwyn Park (base bid)
•Engineered Wood Fiber (EWF)
Remove and dispose the existing sand and
replace it with Engineered Wood Fiber .
• Repair Poured-in-Place (PIP) Surface
Repair damaged sections, roll coat with aliphatic
binder, and cure.
•Composite Structure Equipment - Equipment
Replacement
Replace existing barrier along stairs.
12 Sinnott Park
(add alternate)
•Poured-in-Place (PIP) Surface
Remove and dispose existing sand and replace
with new PIP Surface. • Engineered Wood Fiber (EWF)
Remaining area surrounding PIP structure shall
be replaced with EWF. •Composite Structure Equipment
- Equipment
Replacement
Remove and dispose of 2 play structures. Install
new2-5 yr old and 5-12 yr old play structures.
• Pathway Rehab
Rehab pathway located at Big Basin Drive and
Clear Lake Avenue.
13 Sunnyhills Albert Augustine Jr. Memorial Park (base bid) 2-5 Years Old Play Area:
• Engineered Wood Fiber (EWF)
Remove and dispose the existing sand from the
2-5 yr. old play area and replace it with
Engineered Wood Fiber.
• Poured-in-Place (PIP) Surface
Remove and dispose of the existing Poured-inPlace (PIP) Surface and replace it with new Poured-in-Place (PIP) Surface.
• Fence
Remove and dispose of the existing chain-link
fence and replace it with a new vinyl coated
steel chain-link fence.
5-12 Years Old Play Area:
•Poured-in-Place (PIP) Surface
•Remove and dispose of the existing Poured-inPlace (PIP) Surface and replace it with new Poured-in-Place (PIP) Surface.
•Ground Elements (Free Standing) Equipment
Remove and dispose the existing Free Standing
Slide and the Sliding Pole and replace it with a
new Free Standing Slide with similar agility asset
that is non-metallic and has hand support.
•Composite Structure Equipment Chin Up Bar
Remove and dispose of the existing Chin Up Bar
and install a new Chin Up Bar to another
location of the play area, where this equipment
will not interfere with other equipment, or a
location designated by the City.
14 Sunnyhills Albert Augustine Jr. Memorial Park (base bid) 15 Tom Evatt Park (base bid)
•Poured-in-Place (PIP) Surface
Remove and dispose the existing PIP Surface
and replace it with new PIP Surface.
•Composite Structure Equipment - Equipment
Replacement
Remove diagonal saucer roper climber and
rocking seat.
Milpitas City Council
Item #C8: Receive Report on
American Rescue Plan Act
Investment Plan and Provide
Direction
December 6, 2022
City of Milpitas
455 E. Calaveras Blvd., Milpitas, CA 95035
www.ci.milpitas.ca.gov 408-586-3000
2 Presentation Outline
Periodic ARPA Status Report – since October 4, 2022
budget development
Background and ARPA Investment Plan
Status Update on ARPA Programs
Council Discussion
3 Background
March 11, 2021, President Biden signed American Rescue Plan Act (ARPA), a $1.9 trillion stimulus package, to counteract the economic impacts of the COVID pandemic. The City received $16,736,815 in June of 2021 and 2022, May-June 2021: Council provided feedback on investment priorities for American Rescue Plan Act (ARPA) funding
June 21, 2021: Council approved the ARPA Investment Framework August 9, 2021: Council approved the ARPA Investment Plan January 11, 2022: Council approved modifications to the ARPA Investment Plan February 15, 2022: Preliminary discussion, item was continued to March 1 March 15, 2022 & June 7, 2022 – Updates to ARPA during FY 22-23 budget development
October 4, 2022 – Update on ARPA
4 ARPA Five Investment Areas $16.7 M
5 ARPA Investment Plan
(YTD expenditures as of Nov. 22, 2022)
6 ARPA Investment Plan (con't)
(YTD expenditures as of Nov. 22, 2022)
7 Highlights
Catalytic Converter Public Safety Initiative ($200,000) Seven (7) automotive businesses are participating in the program, each have reached the 25 participant registration limit. All appointments were booked, for a total of 175 resident participants who will be served. There is a waiting list of approximately 10 residents. Staff will continue to monitor and support the program to encourage vendor and resident participation.
Economic Development Workforce Development ($300,000)
Build it Green launched the second training program of their Certified Green Building Professional Training (Nov. 30 – Dec 8). Develop understanding of green building concepts and encourage more environmentally friendly development. Thirteen (13) participants (6 residents and 7 city staff. 1st & 2nd training combined, Build It Green will have served nineteen (19) participants with the $10,000 ARPA funding. 8 Highlights
Park Playground Rehabilitation ($1,116,000) CIP Project No. 3500 – Public Works Safety improvements and retrofitting of equipment at up to eleven (11) of the City’s 36 parks. On December 6, Staff will report to Council the bids and recommend the award of contract to G&G Builders Inc for the base bid amount of $872,019 for the rehabilitation of seven (7) city parks. Staff will also request Council authorize the City Manager to negotiate and execute contract change order(s) in an aggregate amount not to exceed $468,514.00, subject to City Council appropriation of State grant funds in the amount of $224,543.00. The contingency may be used for unforeseen conditions and/or to proceed with add alternates of the remaining four (4) parks.
Park Rehabilitation ($3,270,815) Project No. 3501 - Engineering and RFP Repairs and improvements to twelve (12) of the City’s 36 parks that were assessed to be in poor and critical condition. The implementation of these repairs and improvements will address health and safety repairs and improve the condition of these parks. The request for proposal (RFP) for engineering design services was completed and a design services agreement will be forward for signatures in early December. 9 Chamber of Commerce
Information Memo sent to Council on Oct. 19, 2022.
Requires additional reporting and monitoring of the use of the funds by the United States Treasury department since the amount of ARPA funding is over the $50,000 threshold.
In accordance with Council direction Chamber provided financial and event information to the City, however, documents were unable to demonstrate sound financial health and did not include detailed event workplans with resources and key milestones identified.
Staff recommends Council consider waiting until the Chamber is able to demonstrate sound fiscal health and provide detailed workplans and resource plans to demonstrate that the Chamber is able to deliver on outcomes that support the Council’s priority area of Economic Vitality for ARPA funding.
Any Council direction on funding on December 6 will likely not allow the Chamber adequate time to plan for the Spring Art and Wine Festival. 10 Process for future changes to
the ARPA Investment Plan
On August 9, 2021, Council approved funding for 25 programs in the ARPA Investment Plan (Attachment 1) and delegated authority to the City Manager to proceed with appropriation actions and contract approvals, up to the approved amount for each program approved by Council.
Each additional program requires a significant work effort and resources.
On March 15, 2022, Council also approved the process to review and align the ARPA funding allocation as a part of the budget development and mid-year budget process.
This maximizes efficacy of budget management and service delivery.
In February, staff will provide the FY2022-23 mid-year budget report and in conjunction, request Council consideration of potential priorities which may warrant ARPA funding reallocation. 11 Recommendation
Council receive update on the American Rescue Plan Act
(ARPA) programs and provide direction to Staff.
12 Project Status
13 ARPA Investment Plan
(YTD expenditures as of Nov. 22, 2022)
14 ARPA Investment Plan
(YTD expenditures as of Nov. 22, 2022)
City of Milpitas
455 E. Calaveras Blvd., Milpitas, CA 95035
www.ci.milpitas.ca.gov 408-586-3000
City Council Meeting
Item No. C9 - Accept the City’s Annual
Comprehensive Financial Report and Other Related
Annual Audited Reports For the Fiscal Year Ended
June 30, 2022
December 6, 2022
2 Overview
Key Financial Highlights
Other Annual Audited steps
Recommendation
Agenda
3 Overview
1. Maze & Associates have completed the annual audit of the City’s Annual Comprehensive Financial Report (ACFR).
2. Unmodified (i.e., “clean”) opinion expressed by auditors
3. Memorandum of Internal Controls
4. ACFR is available on the City’s Finance Department webpage.
5. Government Finance Officers Association (GFOA) Certificate of Achievement in Excellence in Financial Reporting.
6. 26 consecutive years
4 Key Financial Highlights
• City-wide (Governmental and Business-type activities) a. The City’s total net position increased by $25.3 million o Due to net increase in assets over liabilities. Net asset increases were primarily due new GASB accounting rule which increased lease receivable and capital assets and liability decreases primarily due to decrease in pension liabilities. b. City-wide revenues increased by $11.5 million
o Due to increase in charges for service, capital grants and contribution and general revenues. These increases are in line with the budget assumptions. c. City-wide expenses decreased by $16 million
o Due to decreases in primary government expenditure and water utility expenses primarily due to mandatory conservation.
5 Key Financial Highlights
• General Fund
a. General Fund revenues increased by $14 million
o Primarily due to increase in Hotel/Motel tax, Sales and Use tax, Licenses and Fines and Intergovernmental revenue
o These increases are in line with the budget assumptions. b. General Fund expenditure increased by $4.7 million
o Due to increase personnel cost and contractual services. o Resumed more Milpitas services after reduced COVID restrictions. c. General Fund balance increased by $4.1 million
o Due to net operating surplus
General Fund
Reserves
(FY22 and
prior years)
6 7
Other Annual Audited Report
• Bicycle/Pedestrian Project Financial Statement for FY2021-22 • Memorandum on Internal Control for FY2021-22
• Required Communication for FY2021-22
• Agreed Upon Procedures Report on Compliance with the
Appropriations Limit Increment for FY2021-22
City of Milpitas
Independent Auditor’s Presentation
For Fiscal Year Ended June 30, 2022
Grace Zhang, CPA
Partner
8 Who We Are
In business
since 1979
Municipal
auditor
since
1987
> 200
municipal
entities
> 50 cities/towns
> 40 ACFRs
Independent
of the City
9 Annual Audit
10 Completed
Audit of City’s financial statements
Agreed-upon procedures on the City’s
Appropriation Limit calculation
To be completed
Single Audit
Standards
Auditing standards
generally accepted
in the USA
Government
Auditing Standards
11 Annual Timing
• June 2022
• Internal control environment Interim
• September 2022
• Verification of financial data Final
12 Results
Audit
Unmodified (i.e. Clean) Opinions
Appropriation Limit calculation AUP
No exception noted
13 Components of ACFR
Comprehensive Annual
Financial Report (ACFR)
Basic Financial Statements
(BFS)
Other components
14 High Level Summaries
Management’s Discussion and Analysis (pages 5 to 21 of ACFR)
Statistical Section (pages 137 to 167 of ACFR)
15 Memorandum on Internal Control (MOIC)
and Required Communications
16 MOIC
Control
Deficiencies Other Matters
Control Deficiency
17 • The design or operation of a What? control
Who? • Management or employees
• In the normal course of
performing their assigned
functions
When?
• The prevention, detection or
correction of misstatements on a
timely basis
Does not allow
18 Control Deficiency
Reported on MOIC
Material
Weakness
Significant
Deficiency
FY 22 Audit
No Material
Weakness
One Significant
Deficiency
19 20
Recommendation
Accept the City’s Annual Comprehensive Financial Report and other Related Annual Audited Reports for the Fiscal Year ended June 30, 2022.
38077.00180\29080232.10 C2
CITY OF MILPITAS
MILPITAS, CALIFORNIA
CONTRACT DOCUMENTS AND SPECIFICATIONS FOR
REHABILITATION OF ELEVEN CITY
PARKS
IFB NO. 23-035
Revised 19 October 2022
38077.00180\29080232.10 C2
-i- 00 11 16 – NOTICE INVITING BIDS
TABLE OF CONTENTS
Page
00 11 16 – NOTICE INVITING BIDS ......................................................................................... 1 00 21 13 – INSTRUCTIONS TO BIDDERS ............................................................................... 3 00 41 43 – BID FORMS ...........................................................................................................12 00 52 13 – CONTRACT ...........................................................................................................35 00 61 13 – BOND FORMS .......................................................................................................40 00 72 13 – GENERAL CONDITIONS .......................................................................................52 00 73 13 – SPECIAL CONDITIONS ....................................................................................... 109 01 00 00 – GENERAL REQUIREMENTS ............................................................................... 112 EXHIBIT “A” CHANGE ORDER FORM .................................................................................. A-1 EXHIBIT "B" PROJECT SPECIFICATIONS………………………………………………………..B-1 EXHIBIT "C" TECHNICAL SPECIFICATIONS BY PARK………………………………………...C-1 EXHIBIT “D” SLFRF CONTRACT PROVISIONS………………………………………………….D-1 EXHIBIT “E” PARK DRAWINGS…………………………………………….................................E-1 38077.00180\29080232.10 C2
-1- 00 11 16 – NOTICE INVITING BIDS
00 11 16 – NOTICE INVITING BIDS
NOTICE IS HEREBY GIVEN that the City Council of the City of Milpitas (“City”) invites and will receive electronic Bids up to but not later than 2:00 p.m. on Thursday, November 10, 2022 via ProcureNow.com, the City’s eProcurement website, for the furnishing to City of all labor, equipment, materials, tools, services, transportation, permits, utilities, and all other items necessary for Rehabilitation of Eleven City Parks (the “Project”). At said time, Bids will be electronically opened and read aloud at the City Office. Bids received after said time shall not be accepted. Bids shall be valid for a period of 90 calendar days after the Bid opening date.
Bids must be submitted on the City’s Bid Forms. Bidders may obtain a copy of the Contract Documents from ProcureNow.com and no other method of obtaining documents may be accepted. To the extent required by section 20103.7 of the Public Contract Code, upon request from a contractor plan room service, the City shall provide an electronic copy of the Contract Documents at no charge to the contractor plan room.
It is the responsibility of each prospective bidder to download and print all Bid Documents for review and to verify the completeness of Bid Documents before submitting a bid. Any Addenda will be posted ProcureNow.com. It is the responsibility of each prospective bidder to check ProcureNow.com on a daily basis through the close of bids for any applicable addenda or updates. The City does not assume any liability or responsibility based on any defective or incomplete copying, excerpting, scanning, faxing, downloading or printing of the Bid Documents.
Information on ProcureNow.com may change without notice to prospective bidders. The Contract Documents shall supersede any information posted or transmitted by ProcureNow.com.
Each Bid shall be accompanied by cash, a certified or cashier’s check, or Bid Bond secured from a surety company satisfactory to the City Council, the amount of which shall not be less than ten percent (10%) of the submitted Total Bid Price, made payable to City of Milpitas as bid security. The bid security shall be provided as a guarantee that within five (5) working days after the City provides the successful bidder the Notice of Award, the successful Bidder will enter into a contract and provide the necessary bonds and certificates of insurance. The bid security will be declared forfeited if the successful Bidder fails to comply within said time. No interest will be paid on funds deposited with City.
A non-mandatory Pre-Bid Conference is scheduled for 18 October 2022 at 10:30 a.m. PDT to review the Project's existing conditions via Zoom teleconference call. Representatives of the City and consulting engineers, if any, will be present. Bidders need only to attend one Pre-Bid Conference. Questions asked by Bidders at the Pre-Bid Conference not specifically addressed within the Contract Documents shall be answered in writing, and issued as an Addendum.
The successful Bidder will be required to furnish a Faithful Performance Bond and a Labor and Material Payment Bond each in an amount equal to one hundred percent (100%) of the Contract Price. Each bond shall be in the forms set forth herein, shall be secured from a surety company that meets all State of California bonding requirements, as defined in California Code of Civil Procedure Section 995.120, and that is a California admitted surety insurer.
Pursuant to Section 22300 of the Public Contract Code of the State of California, the successful Bidder may substitute certain securities for funds withheld by City to ensure its performance under the contract.
38077.00180\29080232.10 C2
-2- 00 11 16 – NOTICE INVITING BIDS
Pursuant to Labor Code Section 1773, City has obtained the prevailing rate of per diem wages and the prevailing wage rate for holiday and overtime work applicable in Santa Clara County from the Director of the Department of Industrial Relations for each craft, classification, or type of worker needed to execute this contract. A copy of these prevailing wage rates may be obtained via the internet at: www.dir.ca.gov/dlsr/
In addition, a copy of the prevailing rate of per diem wages is available at the City’s Department of Public Works and shall be made available to interested parties upon request. The successful bidder shall post a copy of the prevailing wage rates at each job site. It shall be mandatory upon the Bidder to whom the Contract is awarded, and upon any subcontractors, to comply with all Labor Code provisions, which include but are not limited to the payment of not less than the said specified prevailing wage rates to all workers employed by them in the execution of the Contract, employment of apprentices, hours of labor and debarment of contractors and subcontractors.
Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. No Bid will be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work. If awarded a contract, the Bidder and its subcontractors, of any tier, shall maintain active registration with the Department of Industrial Relations for the duration of the Project. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. In bidding on this Project, it shall be the Bidder’s sole responsibility to evaluate and include the cost of complying with all labor compliance requirements under this contract and applicable law in its Bid.
Unless otherwise provided in the Instructions for Bidders, each Bidder shall be a licensed contractor pursuant to sections 7000 et seq. of the Business and Professions Code in the following classification(s) throughout the time it submits its Bid and for the duration of the contract: General A or General B.
Substitution requests shall be made within 35 calendar days after the award of the contract.
Pursuant to Public Contract Code Section 3400(b), the City may make findings designating that certain additional materials, methods or services by specific brand or trade name other than those listed in the Standard Specifications be used for the Project. Such findings, if any, as well as the materials, methods or services and their specific brand or trade names that must be used for the Project may be found in the Special Conditions.
City shall award the contract for the Project to the lowest responsive, responsible Bidder as determined by the City from the BASE BID ALONE. City reserves the right to reject any or all bids or to waive any irregularities or informalities in any bids or in the bidding process.
For further information, contact Zachary DeVine, Senior Buyer at [email protected] or (408) 586-3163.
END OF NOTICE INVITING BIDS
38077.00180\29080232.10 C2
-3- 00 21 13 – INSTRUCTIONS TO BIDDERS
00 21 13 – INSTRUCTIONS TO BIDDERS
1. SECURING DOCUMENTS
Bids must be submitted to the City on the Bid Forms which are a part of the Bid Package for the Project. Bid and Contract Documents may be obtained from the City as specified in the Notice Inviting Bids. Prospective bidders are encouraged to telephone in advance to determine the availability of Contract Documents. Any charge for the Contract Documents is stated in the Notice Inviting Bids.
The City may also make the Contract Documents available for review at one or more plan rooms, as indicated in the Notice Inviting Bids.
Addenda, if any, issued during the bid period will be posted on www.ProcureNow.com. Failure to acknowledge addenda may make a bid nonresponsive and not eligible for award of the contract.
2. EXAMINATION OF SITE AND CONTRACT DOCUMENTS
At its own expense and prior to submitting its Bid, each Bidder shall visit the site of the proposed work and fully acquaint itself with the conditions relating to the construction and labor required so that the Bidder may fully understand the work, including but not limited to difficulties and restrictions attending the execution of the work under the contract. Each Bidder shall carefully examine the Drawings, and shall read the Specifications, Contract, and all other documents referenced herein. Each Bidder shall also determine the local conditions which may in any way affect the performance of the work, including local tax structure, contractors’ licensing requirements, availability of required insurance, the prevailing wages and other relevant cost factors, shall familiarize itself with all federal, state and local laws, ordinances, rules, regulations and codes affecting the performance of the work, including the cost of permits and licenses required for the work, and shall make such surveys and investigations, including investigations of subsurface or latent physical conditions at the site or where work is to be performed as may be required. Bidders are responsible for consulting the standards referenced in the Contract.
The failure or omission of any Bidder to receive or examine any contract documents, forms, instruments, addenda, or other documents, or to visit the site and acquaint itself with conditions there existing shall in no way relieve any Bidder from any obligation with respect to its Bid or to the contract and no relief for error or omission will be given except as required under State law.
The submission of a Bid shall be taken as conclusive evidence of compliance with this Article.
Storm, surface, nuisance, or other waters may be encountered at various times during construction of the Project. Federal and State laws require the City and its contractors to appropriately manage such waters pursuant to the requirements of California State Water Resources Control Board Order Number 2009-0009-DWQ and any amendment or renewal thereof, the Federal Clean Water Act, and the California Porter Cologne Water Quality Control Act. By submitting a Bid, each Bidder acknowledges that it has investigated the risk arising from such waters, has prepared its Bid accordingly, and assumes any and all risks and liabilities arising therefrom.
3. INTERPRETATION OF DRAWINGS AND DOCUMENTS
Prospective Bidders unclear as to the true meaning of any part of the Drawings, Specifications or other proposed contract documents may submit to the Engineer of the City a written request 38077.00180\29080232.10 C2
-4- 00 21 13 – INSTRUCTIONS TO BIDDERS
for interpretation. The prospective Bidder submitting the request is responsible for prompt delivery. Interpretation of the Drawings, Specifications or other proposed contract documents will be made only by a written addendum duly issued and a copy of such addenda will be mailed or delivered to each prospective Bidder who has purchased a set of Drawings and Specifications. The City will not be responsible for any other explanation or interpretations of the proposed documents. If a Prospective Bidders becomes aware of any errors or omissions in any part of the Contract Documents, it is the obligation of the Prospective Bidder to promptly bring it to the attention of the City.
4. INSPECTION OF SITE; PRE-BID CONFERENCE
Each prospective bidder is responsible for fully acquainting itself with the conditions of the Project Site (which may include more than one site), as well as those relating to the construction and labor of the Project, to fully understand the facilities, difficulties and restrictions which may impact the cost or effort required to complete the Project. To this end, a Pre-Bid Meeting and Site Walk will be held on the date(s) and time(s) indicated in the Notice Inviting Bids.
5. ADDENDA
The City reserves the right to revise the Contract Documents prior to the Bid opening date.
Revisions, if any, shall be made by written Addenda. All Addenda issued by the City shall be included in the Bid and made part of the Contract Documents. Pursuant to Public Contract Code Section 4104.5, if the City issues an Addendum which includes material changes to the Project less than 72 hours prior to the deadline for submission of Bids, the City will extend the deadline for submission of Bids. The City may determine, in its sole discretion, whether an Addendum warrants postponement of the Bid submission date. Any Addenda will be posted on www.ProcureNow.com. Please Note: Bidders are responsible for ensuring that they have received any and all Addenda. To this end, each Bidder should contact Zachary DeVine, Senior Buyer at City of Milpitas City Hall, 455 E. Calaveras Bouelvard, Milpitas, CA 95035 or (408) 586- 3163 or [email protected] to verify that it has received all Addenda issued, if any, prior to the Bid opening. The Bidder shall indicate the Addenda received prior to bidding in the space provided in the Bid Form. Failure to indicate all Addenda may be sufficient cause for rejecting the Bid.
6. ALTERNATE BIDS
If alternate bid items are called for in the Contract Documents, the time required for completion of the alternate bid items has already been factored into the Contract duration and no additional Contract time will be awarded for any of the alternate bid items. The City may elect to include one or more of the alternate bid items, or to otherwise remove certain work from the Project scope of work. Accordingly, each bidder must ensure that each bid item contains a proportionate share of profit, overhead, and other costs or expenses which will be incurred by the bidder.
7. COMPLETION OF BID FORMS
Bids shall only be prepared using copies of the Bid Forms which are included in the Contract Documents. The use of substitute Bid Forms other than clear and correct photocopies of those provided by the City will not be permitted. Bids shall be executed by an authorized signatory as described in these Instructions to Bidders. In addition, Bidders shall fill in all blank spaces (including inserting “N/A” where applicable), and initial all interlineations, alterations, or erasures 38077.00180\29080232.10 C2
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to the Bid Forms. Bidders shall neither delete, modify, nor supplement the printed matter on the Bid Forms nor make substitutions thereon. USE OF BLACK OR BLUE INK, INDELIBLE PENCIL, OR A TYPEWRITER IS REQUIRED. Deviations in the Bid Forms may result in the Bid being deemed non-responsive.
8. MODIFICATIONS OF BIDS
Each Bidder shall submit its Bid in strict conformity with the requirements of the Contract Documents. Unauthorized additions, modifications, revisions, conditions, limitations, exclusions or provisions attached to a Bid may render it non-responsive and may cause its rejection.
Bidders shall not delete, modify, or supplement the printed matter on the Bid Forms, or make substitutions thereon. Oral, telephonic and electronic modifications will not be considered.
9. SUBCONTRACTORS
Bidder shall set forth the name, address of the place of business, and contractor license number of each subcontractor who will perform work, labor, furnish materials or render services to the bidder on said contract and each subcontractor licensed by the State of California who, under subcontract to bidder, specially fabricates and installs a portion of the Work described in the Drawings and Specifications in an amount in excess of one half of one percent (0.5%) of the total bid price, and shall indicate the portion of the work to be done by such subcontractor in accordance with Public Contract Code Section 4104.
The successful bidder will be required to self-perform at least 60% of the work.
10. LICENSING REQUIREMENTS
Pursuant to Business and Professions Code Section 7028.15 and Public Contract Code Section 3300, all bidders must possess proper licenses for performance of this Contract.
Subcontractors must possess the appropriate licenses for each specialty subcontracted.
Pursuant to Business and Professions Code Section 7028.5, the City shall consider any bid submitted by a contractor not currently licensed in accordance with state law and pursuant to the requirements found in the Contract Documents to be nonresponsive, and the City shall reject the Bid. The City shall have the right to request, and Bidders shall provide within ten (10) calendar days, evidence satisfactory to the City of all valid license(s) currently held by that Bidder and each of the Bidder’s subcontractors, before awarding the Contract.
Notwithstanding anything contained herein, if the Work involves federal funds, the Contractor shall be properly licensed by the time the Contract is awarded, pursuant to the provisions of Public Contract Code section 20103.5.
11. BID GUARANTEE (BOND)
Each bid shall be accompanied by: (a) cash; (b) a certified or cashier’s check made payable to City of Milpitas; or (c) a Bid Bond secured from a surety company satisfactory to the City Council, the amount of which shall not be less than ten percent (10%) of the Total Bid Price, made payable to City of Milpitas as bid security. Personal sureties and unregistered surety companies are unacceptable. The surety insurer shall be California admitted surety insurer, as defined in Code of Civil Procedure Section 995.120. The bid security shall be provided as a guarantee that within ten (10) working days after the City provides the successful bidder the Notice of Award, the successful bidder will enter into a contract and provide the necessary 38077.00180\29080232.10 C2
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bonds and certificates of insurance. The bid security will be declared forfeited if the successful bidder fails to comply within said time, and City may enter into a contract with the next lowest responsive responsible bidder, or may call for new bids. No interest shall be paid on funds deposited with the City. City will return the security accompanying the bids of all unsuccessful bidders no later than 60 calendar days after award of the contract.
12. IRAN CONTRACTING ACT OF 2010
In accordance with Public Contract Code Section 2200 et seq., the City requires that any person that submits a bid or proposal or otherwise proposes to enter into or renew a contract with the City with respect to goods or services of one million dollars ($1,000,000) or more, certify at the time the bid is submitted or the contract is renewed, that the person is not identified on a list created pursuant to subdivision (b) of Public Contract Code Section 2203 as a person engaging in investment activities in Iran described in subdivision (a) of Public Contract Code Section 2202.5, or as a person described in subdivision (b) of Public Contract Code Section 2202.5, as applicable.
The form of such Iran Contracting Certificate is included with the bid package and must be signed and dated under penalty of perjury.
13. NONCOLLUSION DECLARATION
Bidders on all public works contracts are required to submit a declaration of noncollusion with their bid. This form is included with the bid package and must be signed and dated under penalty of perjury.
14. PUBLIC WORKS CONTRACTOR REGISTRATION CERTIFICATION
Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. No bid will be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work. If awarded a contract, the bidder and its subcontractors, of any tier, shall maintain active registration with the Department of Industrial Relations for the duration of the Project. To this end, Bidder shall sign and submit with its Bid the Public Works Contractor Registration Certification on the form provided, attesting to the facts contained therein. Failure to submit this form may render the bid non-responsive. In addition, each Bidder shall provide the registration number for each listed subcontractor in the space provided in the Designation of Subcontractors form.
15. WAGE THEFT CERTIFICATION
Bidders on public works contracts are required to submit a certification disclosing whether the Bidder or any of its proposed subcontractors has been found by a final court order or administrative action of an investigatory government agency to have violated federal, state or local wage and hour laws, including but not limited to the federal Fair Labor Standards Act, the California Labor Code and the Milpitas Minimum Wage Ordinance, within the past five (5) years from the bid submission deadline.
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16. BIDDER INFORMATION AND EXPERIENCE FORM
Each Bidder shall complete the questionnaire provided herein and shall submit the questionnaire along with its Bid. Failure to provide all information requested within the questionnaire along with the Bid may cause the bid to be rejected as non-responsive. The City reserves the right to reject any Bid if an investigation of the information submitted does not satisfy the Engineer that the Bidder is qualified to properly carry out the terms of the contract.
17. WORKERS' COMPENSATION CERTIFICATION
In accordance with the provisions of Labor Code Section 3700, Contractor shall secure the payment of compensation to its employees. Contractor shall sign and file with the City the following certificate prior to performing the work under this Contract:
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.
The form of such Workers' Compensation Certificate is included as part of this document.
18. SIGNING OF BIDS
All Bids submitted shall be executed by the Bidder or its authorized representative. Bidders may be asked to provide evidence in the form of an authenticated resolution of its Board of Directors or a Power of Attorney evidencing the capacity of the person signing the Bid to bind the Bidder to each Bid and to any Contract arising therefrom.
If a Bidder is a joint venture or partnership, it may be asked to submit an authenticated Power of Attorney executed by each joint venturer or partner appointing and designating one of the joint venturers or partners as a management sponsor to execute the Bid on behalf of Bidder. Only that joint venturer or partner shall execute the Bid. The Power of Attorney shall also: (1) authorize that particular joint venturer or partner to act for and bind Bidder in all matters relating to the Bid; and (2) provide that each venturer or partner shall be jointly and severally liable for any and all of the duties and obligations of Bidder assumed under the Bid and under any Contract arising therefrom. The Bid shall be executed by the designated joint venturer or partner on behalf of the joint venture or partnership in its legal name.
19. SUBMISSION OF SEALED BIDS
Once the Bid and supporting documents have been completed and signed as set forth herein, they shall be electronically uploaded, along with the Bid Guarantee and other required materials, to ProcureNow.com before the time and day set for the receipt of bids. No oral, paper, or telephonic bids will be considered. No forms transmitted via e-mail, facsimile, or any other non-approved electronic means will be considered unless specifically authorized by the City as provided herein. Bids received after the time and day set for the receipt of bids shall be returned to the bidder unopened.
Only where expressly permitted in the Notice Inviting Bids may bidders submit their bids via electronic transmission pursuant to Public Contract Code sections 1600 and 1601. Any 38077.00180\29080232.10 C2
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acceptable method(s) of electronic transmission shall be stated in the Notice Inviting Bids. City may reject any bid not strictly complying with City’s designated methods for delivery.
20. OPENING OF BIDS
At the time and place set for the opening and reading of bids, or any time thereafter, each and every bid received prior to the time and day set for the receipt of bids will be publicly opened and read. The City will leave unopened any Bid received after the specified date and time, and any such unopened Bid will be returned to the bidder. It is the bidder’s sole responsibility to ensure that its Bid is received as specified. Bids may be submitted earlier than the date(s) and time(s) indicated.
The public reading of each bid will include the following information:
A. The name and business location of the bidder.
B. The nature and amount of the bid security furnished by bidder.
C. The bid amount.
Bidders or their representatives and other interested persons may be present at the opening of the bids. The City may, in its sole discretion, elect to postpone the opening of the submitted Bids. The City reserves the right to reject any or all Bids and to waive any informality or irregularity in any Bid.
21. WITHDRAWAL OF BID
Any bid may be withdrawn either personally or by written request, incurring no penalty, at any time prior to the scheduled closing time for receipt of bids. Requests to withdraw bids shall be worded so as not to reveal the amount of the original bid. Withdrawn bids may be resubmitted until the time and day set for the receipt of bids, provided that resubmitted bids are in conformance with the instructions herein.
Bids may be withdrawn after bid opening only by providing written notice to City within five (5) working days of the bid opening and in compliance with Public Contract Code Section 5100 et seq., or as otherwise may be allowed with the consent of the City.
22. BIDDERS INTERESTED IN MORE THAN ONE BID
No Bidder shall be allowed to make, file or be interested in more than one bid for the same work unless alternate bids are specifically called for. A person, firm or corporation that has submitted a sub-proposal to a Bidder, or that has quoted prices of materials to a Bidder, is not thereby disqualified from submitting a sub-proposal or quoting prices to other bidders. No person, firm, corporation, or other entity may submit a sub-proposal to a Bidder, or quote prices of materials to a Bidder, when also submitting a prime Bid on the same Project.
23. SUBSTITUTION OF SECURITY
The Contract Documents call for monthly progress payments based upon the percentage of the Work completed. The City will retain a percentage of each progress payment as provided by the Contract Documents. At the request and expense of the successful Bidder, the City will 38077.00180\29080232.10 C2
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substitute securities for the amount so retained in accordance with Public Contract Code Section 22300.
24. PREVAILING WAGES
The City has obtained from the Director of the Department of Industrial Relations the general prevailing rate of per diem wages in the locality in which this work is to be performed for each craft or type of worker needed to execute the Contract. These rates are available at the City or may be obtained online at http://www.dir.ca.gov. Bidders are advised that a copy of these rates must be posted by the successful Bidder at the job site(s).
25. DEBARMENT OF CONTRACTORS AND SUBCONTRACTORS
In accordance with the provisions of the Labor Code, contractors or subcontractors may not perform work on a public works project with a subcontractor who is ineligible to perform work on a public project pursuant to Labor Code Sections 1777.1 or 1777.7. Any contract on a public works project entered into between a contractor and a debarred subcontractor is void as a matter of law. A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract. Any public money that is paid to a debarred subcontractor by the Contractor for the Project shall be returned to the City. The Contractor shall be responsible for the payment of wages to workers of a debarred subcontractor who has been allowed to work on the Project.
26. INSURANCE REQUIREMENTS
Prior to commencing work, the successful bidder shall purchase and maintain insurance as set forth in the General Conditions.
27. PERFORMANCE BOND AND PAYMENT BOND REQUIREMENTS
The successful bidder will be required to furnish a Labor and Material Payment Bond and a Faithful Performance Bond each in an amount equal to one hundred percent (100%) of the contract price. Each bond shall be secured from a surety company that meets all State of California bonding requirements, as defined in California Code of Civil Procedure Section 995.120 and is admitted by the State of California. Each bond shall be accompanied, upon the request of City, with all documents required by California Code of Civil Procedure Section 995.660 to the extent required by law. All bonding and insurance requirements shall be completed and submitted to City within ten (10) working days from the date the City provides the successful bidder with the Notice of Award.
28. SALES AND OTHER APPLICABLE TAXES, PERMITS, LICENSES AND FEES Contractor and its subcontractors performing work under this Contract will be required to pay California sales tax and other applicable taxes, and to pay for permits, licenses and fees required by the agencies with authority in the jurisdiction in which the Work will be located, unless otherwise expressly provided by the Contract Documents.
29. FILING OF BID PROTESTS
Bidders may file a “protest” of a Bid with the City of Milpitas City Engineer. In order for a Bidder’s protest to be considered valid, the protest must:
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A. Be filed in writing within five (5) calendar days after the bid opening date; B. Clearly identify the specific irregularity or accusation; C. Specify in detail the grounds for protest and the facts supporting the protest; and D. Include all relevant, supporting documentation with the protest at time of filing.
If the protest does not comply with each of these requirements, the City may reject the protest without further review.
If the protest is timely and complies with the above requirements, the City Engineer, or other designated City staff member, shall review the protest, any response from the challenged Bidder(s), and all other relevant information. The City Engineer will provide a written decision to the protestor.
The procedure and time limits set forth in this Article are mandatory and are the sole and exclusive remedy in the event of a Bid protest. Failure to comply with these procedures shall constitute a failure to exhaust administrative remedies and a waiver of any right to further pursue the Bid protest, including filing a Government Code Claim or legal proceedings.
30. BASIS OF AWARD; BALANCED BID
The City shall award the Contract to the lowest responsible Bidder submitting a responsive Bid.
The lowest Bid will be determined on the basis of the Total Base Bid alone unless otherwise set forth in the Notice Inviting Bids.
The City may reject any Bid which, in its opinion when compared to other Bids received or to the City’s internal estimates, does not accurately reflect the cost to perform the Work. The City may reject as non-responsive any Bid which unevenly weights or allocates costs, including but not limited to overhead and profit to one or more particular bid items.
31. AWARD PROCESS
Once all Bids are opened and reviewed to determine the lowest responsive and responsible Bidder, the City Council may award the contract. The apparent successful Bidder should begin to prepare the following documents: (1) the Performance Bond; (2) the Payment Bond; and (3) the required insurance certificates and endorsements. Once the City notifies the Bidder of the award, the Bidder will have fourteen (14) calendar days from the date of this notification to execute the Contract and supply the City with all of the required documents and certifications.
Regardless of whether the Bidder supplies the required documents and certifications in a timely manner, the Contract time will begin to run twenty-one (21) calendar days from the date of the Notice of Award. Once the City receives all of the properly drafted and executed documents, certifications from the Bidder, and any other documents as maybe specified in the Contract Documents, the City shall issue a Notice to Proceed to that Bidder.
32. EXECUTION OF CONTRACT
As required herein the Bidder to whom an award is made shall execute the Contract in the amount determined by the Contract Documents. The City may require appropriate evidence that the persons executing the Contract are duly empowered to do so. The Contract and bond 38077.00180\29080232.10 C2
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forms to be executed by the successful Bidder are included within these Specifications and shall not be detached.
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00 52 13 – CONTRACT
This CONTRACT, No. 23-035 is made and entered into this _______________________, by and between City of Milpitas, sometimes hereinafter called “City,” and G&G Builders Inc. sometimes hereinafter called “Contractor.” WITNESSETH: That the parties hereto have mutually covenanted and agreed, and by these presents do covenant and agree with each other as follows:
a. SCOPE OF WORK. The Contractor shall perform all Work within the time stipulated in the Contract, and shall provide all labor, materials, equipment, tools, utility services, and transportation to complete all of the Work required in strict compliance with the Contract Documents as specified in Article 5, below, for the following Project:
REHABILITATION OF ELEVEN CITY PARKS
The Contractor and its surety shall be liable to the City for any damages arising as a result of the Contractor’s failure to comply with this obligation. b. TIME FOR COMPLETION. Time is of the essence in the performance of the Work. The Work shall be commenced on the date stated in the City’s Notice to Proceed. The Contractor shall complete all Work required by the Contract Documents WITHIN ONE HUNDRED EIGHTY (180) CALENDAR DAYS from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work.
c. CONTRACT PRICE. The City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of Eight Hundred Seventy-Two Thousand Fifty-Nine Dollars and Zero Cents ($872,059.00).
Payment shall be made as set forth in the General Conditions. d. LIQUIDATED DAMAGES.In accordance with Government Code section 53069.85, it is agreed that the Contractor will pay the City the sum set forth in Section 00 73 13, Article 1.11 for each and every calendar day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the event this is not paid, the Contractor agrees the City may deduct that amount from any money due or that may become due the Contractor under the Contract. This Article does not exclude recovery of other damages specified in the Contract Documents.
e. COMPONENT PARTS OF THE CONTRACT. The “Contract Documents” include the following:
Notice Inviting Bids
Instructions to Bidders
Bid Form
Bid Bond
Designation of Subcontractors
Information Required of Bidders
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Non-Collusion Declaration Form
Iran Contracting Act Certification
Public Works Contractor Registration Certification
Wage Theft Certification
Performance Bond
Payment (Labor and Materials) Bond
General Conditions
Special Conditions
Technical Specifications
Addenda
Plans and Drawings
Caltrans Standard Specifications, except Division 1
Caltrans Standard Plans
Applicable Local Agency Standards and Specifications, as last revised Approved and fully executed change orders
Any other documents contained in or incorporated into the Contract The Contractor shall complete the Work in strict accordance with all of the Contract Documents.
All of the Contract Documents are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. This Contract shall supersede any prior agreement of the parties.
f. PROVISIONS REQUIRED BY LAW AND CONTRACTOR COMPLIANCE. Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of applicable federal, state and local laws, rules and regulations, including, but not limited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Work.
g. INDEMNIFICATION. Contractor shall provide indemnification and defense as set forth in the General Conditions.
h. PREVAILING WAGES. Contractor shall be required to pay the prevailing rate of wages in accordance with the Labor Code which such rates shall be made available at the City’s Administrative Office or may be obtained online at http://www.dir.ca.gov and which must be posted at the job site.
i. WAGE THEFT PREVENTION.
(a) Contractor, and any subcontractor it employs to complete work under this Contract, shall comply with all applicable federal, state and local wage and hour laws.
Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act, the California Labor Code and the Milpitas Minimum Wage Ordinance. (b) BY SIGNING THIS CONTRACT, CONTRACTOR AFFIRMS THAT IT HAS
DISCLOSED ANY FINAL JUDGMENTS, DECISIONS OR ORDERS FROM A COURT OR INVESTIGATORY GOVERNMENT AGENCY, FINDING IN THE FIVE (5) YEARS PRIOR TO
EXECUTING THIS CONTRACT THAT CONTRACTOR OR ITS SUBCONTRACTORS HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS. CONTRACTOR FURTHER
AFFIRMS THAT IT OR ITS SUBCONTRACTOR(S) HAS EITHER FULLY SATISFIED EACH 38077.00180\29080232.10
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JUDGMENT, DECISION OR ORDER, OR, IF ANY JUDGMENT, DECISION OR ORDER HAS
NOT BEEN FULLY SATISFIED, CONTRACTOR AFFIRMS THAT IT OR ITS
SUBCONTRACTOR(S) IS CURRENTLY SATISFYING SAID JUDGMENT, DECISION OR
ORDER THROUGH A PAYMENT OR ALTERNATIVE PLAN APPROVED BY THE
APPLICABLE COURT/GOVERNMENT AGENCY AND THAT CONTRACTOR OR ITS
SUBCONTRACTOR(S) ARE IN COMPLIANCE WITH SAID PLAN AS OF THE DATE OF EXECUTING THIS CONTRACT.
(c) If at any time during the term of this Contract, a court or investigatory government agency issues a final judgment, decision or order finding that Contractor or a subcontractor it employs to perform work under this Contract has violated any applicable wage and hour law, or Contractor learns of such a judgment, decision, or order that was not previously disclosed in its bid/proposal, Contractor shall inform the City no more than fifteen (15) calendar days after the judgment, decision or order becomes final or from the date of learning of the final judgment, decision or order. Contractor or its subcontractor(s) shall, within thirty (30) calendar days after notifying the City, either (i) fully satisfy any such judgment, decision, or order and provide the City with documentary evidence of satisfying said judgment, decision or order; or (ii) provide the City documentary evidence of a payment or other alternative plan approved by the court/government agency to satisfy the judgment, decision or order. If the Contractor or its subcontractor is subject to a payment or other alternative plan, the Contractor or its subcontractor shall continue to submit documentary evidence every thirty (30) calendar days during the term of the Contract demonstrating continued compliance with the plan until the judgment, decision or order has been fully satisfied.
(d) For purposes of this Section, a "final judgment, decision, or order" refers to one for which all appeals have been exhausted or the time period to appeal has expired. Relevant investigatory government agencies include: the United States Department of Labor, the California Division of Labor Standards Enforcement, the City, or any other governmental entity or division tasked with the investigation and enforcement of wage and hour laws. (e) Failure to comply with any part of this Section constitutes a material breach of this Contract. Such breach may serve as a basis for immediate termination of this Contract and/or any other remedies available under this Contract and/or law. (f) Notice provided to the City shall be addressed to: Attention: Finance Director, 455 E. Calaveras Blvd. Milpitas, CA 95035. The Notice provisions of this Section are separate from any other notice provisions in this Contract and, accordingly, only notice provided to the above address satisfies the notice requirements in this Section. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on the day and year above written.
CITY OF MILIPITAS [INSERT NAME OF CONTRACTOR]
By By:
Steven G. McHarris
City Manager Its:
Printed
Name:
(CONTRACTOR’S SIGNATURE MUST BE
NOTARIZED AND CORPORATE
SEAL AFFIXED, IF APPLICABLE)
APPROVED AS TO FORM:
By:
City Attorney
END OF CONTRACT
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Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
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00 61 13 – BOND FORMS
1.1 Performance Bond.
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the City of Milpitas, (hereinafter referred to as “City”) has awarded to _________________________, (hereinafter referred to as the “Contractor”) an agreement for ____________________________________, (hereinafter referred to as the “Project”).
WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.
NOW, THEREFORE, we, ______________________, the undersigned Contractor and ________________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of ___________________________ DOLLARS, ($____________), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one (1) year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officials, officers, employees, and authorized volunteers, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As a part of the obligation secured hereby and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees including reasonable attorney’s fees, incurred by City in enforcing such obligation.
As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship.
The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure Section 337.15.
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Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option:
i Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
ii Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable.
The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents. iii Permit the City to complete the Project in any manner consistent with California law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.
Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the City, when declaring the Contractor in default, notifies Surety of the City’s objection to Contractor’s further participation in the completion of the Project.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20___.
(Corporate Seal)
Contractor/Principal
By
Title
(Corporate Seal)
Surety
By
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate) Title
(The rate of premium on this bond is ____________ per thousand. The total amount of premium charges is $_______________________________.
(The above must be filled in by corporate attorney.)
THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)
(Name and Address of Agent or
Representative for service of
process in California, if different
from above)
(Telephone number of Surety
and Agent or Representative for
service of process in California)
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Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal. 38077.00180\29080232.10
-44- 00 61 13 – BOND FORMS
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of Attorney to local representatives of the bonding company must also be attached.
END OF PERFORMANCE BOND
38077.00180\29080232.10
-45- 00 61 13 – BOND FORMS
1.2 Payment Bond (Labor and Materials).
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Milpitas (hereinafter designated as the “City”), by action taken or a resolution passed _______________ , 20_____, has awarded to ________________________ hereinafter designated as the “Principal,” a contract for the work described as follows:
__________________________________ (the “Project”); and WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.
NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal sum of ______________ Dollars ($___________) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Civil Code Section 9100, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Revenue and Taxation Code Section 18663, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by the City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and investigation expenses.
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 this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or 38077.00180\29080232.10
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under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Civil Code Section 9100, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/Principal
By
Title
(Corporate Seal)
Surety
By
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate) Title
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Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal. 38077.00180\29080232.10
-48- 00 61 13 – BOND FORMS
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of-Attorney to local representatives of the bonding company must also be attached.
END OF PAYMENT BOND
38077.00180\29080232.10
GENERAL CONDITIONS
TABLE OF CONTENTS
Page
-49- 00 72 13 – GENERAL CONDITIONS
TABLE OF CONTENTS
00 72 13 – GENERAL CONDITIONS .......................................................................................52 ARTICLE 1 DEFINED TERMS .............................................................................................52 ARTICLE 2 CONTRACT DOCUMENTS ..............................................................................56 ARTICLE 3 PRECONSTRUCTION AND CONSTRUCTION COMMUNICATION ................57 ARTICLE 4 CONTRACT DOCUMENTS: COPIES & MAINTENANCE ................................57 ARTICLE 5 EXAMINATION OF DRAWINGS, SPECIFICATIONS AND SITE OF WORK ..............................................................................................................57 ARTICLE 6 EXISTENCE OF UTILITIES AT THE WORK SITE ............................................58 ARTICLE 7 SOILS INVESTIGATIONS ................................................................................59 ARTICLE 8 ARTICLE 8. CONTRACTOR’S SUPERVISION ................................................59 ARTICLE 9 WORKERS .......................................................................................................60 ARTICLE 10 INDEPENDENT CONTRACTORS ....................................................................60 ARTICLE 11 SUBCONTRACTS ............................................................................................60 ARTICLE 12 VERIFICATION OF EMPLOYMENT ELIGIBILITY ............................................60 ARTICLE 13 REQUESTS FOR SUBSTITUTION ...................................................................61 ARTICLE 14 SHOP DRAWINGS ...........................................................................................62 ARTICLE 15 SUBMITTALS ...................................................................................................62 ARTICLE 16 MATERIALS .....................................................................................................63 ARTICLE 17 PERMITS AND LICENSES ...............................................................................64 ARTICLE 18 TRENCHES ......................................................................................................64 ARTICLE 19 DIVERSION OF RECYCLABLE WASTE MATERIALS .....................................65 ARTICLE 20 REMOVAL OF HAZARDOUS MATERIALS ......................................................65 ARTICLE 21 SANITARY FACILITIES ....................................................................................65 ARTICLE 22 AIR POLLUTION CONTROL ............................................................................66 ARTICLE 23 LAYOUT AND FIELD ENGINEERING ..............................................................66 ARTICLE 24 TESTS AND INSPECTIONS .............................................................................66 ARTICLE 25 PROTECTION OF WORK AND PROPERTY ....................................................67 ARTICLE 26 CONTRACTOR’S MEANS AND METHODS .....................................................67 ARTICLE 27 AUTHORIZED REPRESENTATIVES ...............................................................67 ARTICLE 28 HOURS OF WORK ...........................................................................................67 ARTICLE 29 PAYROLL RECORDS ......................................................................................68 ARTICLE 30 PREVAILING RATES OF WAGES ...................................................................70 38077.00180\29080232.10
GENERAL CONDITIONS
TABLE OF CONTENTS
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Page
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TABLE OF CONTENTS
ARTICLE 31 PUBLIC WORKS CONTRACTOR REGISTRATION .........................................71 ARTICLE 32 EMPLOYMENT OF APPRENTICES .................................................................71 ARTICLE 33 NONDISCRIMINATION/EQUAL EMPLOYMENT OPPORTUNITY ...................71 ARTICLE 34 DEBARMENT OF CONTRACTORS AND SUBCONTRACTORS .....................72 ARTICLE 35 LABOR/EMPLOYMENT SAFETY .....................................................................72 ARTICLE 36 INSURANCE .....................................................................................................73 ARTICLE 37 FORM AND PROOF OF CARRIAGE OF INSURANCE ....................................75 ARTICLE 38 TIME FOR COMPLETION AND LIQUIDATED DAMAGES ...............................76 ARTICLE 39 SCHEDULE OF VALUES, COST BREAKDOWN AND PERIODIC ESTIMATES .....................................................................................................77 ARTICLE 40 PROGRESS ESTIMATES AND PAYMENT ......................................................78 ARTICLE 41 SECURITIES FOR MONEY WITHHELD...........................................................79 ARTICLE 42 CHANGES AND EXTRA WORK. ......................................................................80 ARTICLE 43 FINAL ACCEPTANCE AND PAYMENT ............................................................93 ARTICLE 44 OCCUPANCY ...................................................................................................94 ARTICLE 45 INDEMNIFICATION ..........................................................................................94 ARTICLE 46 PROCEDURE FOR RESOLVING DISPUTES ..................................................95 ARTICLE 47 CITY’S RIGHT TO TERMINATE CONTRACT ..................................................95 ARTICLE 48 WARRANTY AND GUARANTEE OF WORK .................................................. 101 ARTICLE 49 DOCUMENT RETENTION & EXAMINATION ................................................. 104 ARTICLE 50 SEPARATE CONTRACTS .............................................................................. 104 ARTICLE 51 NOTICE AND SERVICE THEREOF ............................................................... 105 ARTICLE 52 NOTICE OF THIRD PARTY CLAIMS .............................................................. 105 ARTICLE 53 STATE LICENSE BOARD NOTICE ................................................................ 105 ARTICLE 54 INTEGRATION ............................................................................................... 105 ARTICLE 55 ASSIGNMENT OF CONTRACT ...................................................................... 106 ARTICLE 56 CHANGE IN NAME AND NATURE OF CONTRACTOR’S LEGAL ENTITY .... 106 ARTICLE 57 ASSIGNMENT OF ANTITRUST ACTIONS ..................................................... 106 ARTICLE 58 PROHIBITED INTERESTS ............................................................................. 106 ARTICLE 59 CONTROLLING LAW ..................................................................................... 106 ARTICLE 60 JURISDICTION; VENUE ................................................................................. 106 ARTICLE 61 LAWS AND REGULATIONS ........................................................................... 107 38077.00180\29080232.10
GENERAL CONDITIONS
TABLE OF CONTENTS
(continued)
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TABLE OF CONTENTS
ARTICLE 62 PATENTS ....................................................................................................... 107 ARTICLE 63 OWNERSHIP OF CONTRACT DOCUMENTS ............................................... 107 ARTICLE 64 NOTICE OF TAXABLE POSSESSORY INTEREST ....................................... 107 ARTICLE 65 SURVIVAL OF OBLIGATIONS ....................................................................... 107 ARTICLE 66 SLFRF CONTRACT PROVISIONS ……………………………………………….105
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00 72 13 – GENERAL CONDITIONS
ARTICLE 1 DEFINED TERMS
Whenever used in the Contract Documents and printed with initial capital letters, the terms listed below will have the meanings indicated which are applicable to both the singular and plural thereof. In addition to terms specifically defined below, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms.
A. Act of God – An earthquake of magnitude of 3.5 or higher on the Richter scale or a tidal wave.
B. Addenda -- Written or graphic instruments issued prior to the submission of Bids which clarify, correct, or change the Contract Documents.
C. Additional Work -- New or unforeseen work will be classified as “Additional Work” when the City’s Representative determines that it is not covered by the Contract.
D. Applicable Laws -- The laws, statutes, ordinances, rules, codes, regulations, permits, and licenses of any kind, issued by local, state or federal governmental authorities or private authorities with jurisdiction (including utilities), to the extent they apply to the Work.
E. Bid -- The offer or proposal of a Bidder submitted on the prescribed form setting forth the prices and other terms for the Work to be performed.
F. Bidder -- The individual or entity who submits a Bid directly to the City.
G. Caltrans Standard Specifications - Standard Specifications of the State of California, Department of Transportation, Current Edition. Any reference therein to a State agency or officer shall be interpreted as if the corresponding City office or agent acting under this contract were so specified.
H. Caltrans Standard Plans - Standard plans of the State of California, Department of Transportation, Current Addition. All metric measurements or quantities in the Caltrans Standard Plans shall be disregarded, and equivalent United States measures used.
I. Change Order (“CO”) -- A document that authorizes an addition, deletion, or revision in the Work or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Contract, in accordance with the Contract Documents and in the form contained in the Contract Documents.
J. Change Order Request (“COR”) -- A request made by the Contractor for an adjustment in the Contract Price and/or Contract Times as the result of a Contractor-claimed change to the Work. This term may also be referred to as a Change Order Proposal (“COP”), or Request for Change (“RFC”).
K. City -- The City of Milpitas.
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L. City Council, Council -- The City Council of the City.
M. City’s Representative -- The individual or entity as identified in the Special Conditions to act as the City’s Representative.
N. Claim -- A demand or assertion by the City or Contractor seeking an adjustment of Contract Price or Contract Times, or both, or other relief with respect to the terms of the Contract. A demand for money or services by a third party is not a Claim.
O. Contract -- The entire integrated written agreement between the City and Contractor concerning the Work. “Contract” may be used interchangeably with “Agreement” in the Contract Documents. The Contract supersedes prior negotiations, representations, or agreements, whether written or oral, and includes all Contract Documents.
P. Contract Documents -- The documents listed in Section 00 52 13, Article 5.
Some documents provided by the City to the Bidders and Contractor, including but not limited to reports and drawings of subsurface and physical conditions are not Contract Documents.
Q. Contract Price -- Amount to be paid by the City to the Contractor as full compensation for the performance of the Contract and completion of the Work, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs.
R. Contract Times -- The number of days or the dates stated in the Contract Documents to: achieve defined Milestones, if any; and to complete the Work so that it is ready for final payment.
S. Contractor -- The individual or entity with which the City has contracted for performance of the Work.
T. Contractor’s Designated On-Site Representative -- The Contractor’s Designated On-Site Representative will be as identified in Section 00 72 13, Article 3 and shall not be changed without prior written consent of the City.
U. Daily Rate -- The Daily Rate stipulated in the Contract Documents as full compensation to the Contractor due to the City’s unreasonable delay to the Project that was not contemplated by the parties.
V. Day -- A calendar day of 24 hours measured from midnight to the next midnight.
W. Defective Work -- Work that is unsatisfactory, faulty, or deficient; or that does not conform to the Contract Documents; or that does not meet the requirements of any inspection, reference standard, test, or approval referenced in the Contract Documents.
X. Demobilization -- The complete dismantling and removal by the Contractor of all of the Contractor’s temporary facilities, equipment, and personnel at the Site. 38077.00180\29080232.10
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Y. Drawings -- That part of the Contract Documents prepared by of the Engineer of Record which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings and other Contractor submittals are not Drawings as so defined.
Z. Effective Date of the Contract -- The date indicated in the Contract on which it becomes effective, but if no such date is indicated, it means the date on which the Contract is signed and delivered by the last of the two parties to sign and deliver.
AA. Engineer, whenever not qualified, shall mean the City Engineer or its designee, acting either directly or through properly authorized agents, such agents acting severally within the scope of the particular duties entrusted to them. On all questions concerning the acceptance of materials, machinery, the classifications of material, the execution of work, conflicting interest of the contractors performing related work and the determination of costs, the decision of the Engineer, duly authorized by the City Council, shall be binding and final upon both parties.
BB. Engineer of Record -- The individual, partnership, corporation, joint venture, or other legal entity named as such in Section 00 73 13, Article 1.1. or any succeeding entity designated by the City.
CC. Hazardous Waste -- The term “Hazardous Waste” shall have the meaning provided in Section 104 of the Solid Waste Disposal Act (42 U.S.C. § 6903) as amended from time to time or, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a class I, class II, or class III disposal site in accordance with provisions of existing law, whichever is more restrictive.
DD. Holiday – The Holidays are defined as legal Federal, State, and City holidays including:
New Year’s Day - January 1
Martin Luther King Jr.'s Birthday – Third Monday in January Lincoln's Birthday – Febraury 12
President’s Day – Third Monday in February
Memorial Day - Last Monday in May
Independence Day - July 4
Labor Day - First Monday in September
Veteran’s Day - November 11
Thanksgiving Day - Fourth Thursday in November
Friday after Thanksgiving
Christmas Eve – December 24
Christmas Day - December 25
If any Holiday listed above falls on a Saturday, Saturday and the preceding Friday are both Holidays. If the Holiday should fall on a Sunday, Sunday and the following Monday are both Holidays.
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EE. Notice of Award -- The written notice by the City to the Successful Bidder stating that upon timely compliance by the Successful Bidder with the conditions precedent listed therein, the City will sign and deliver the Contract.
FF. Notice of Completion -- The form which may be executed by the City and recorded by the county where the Project is located constituting final acceptance of the Project.
GG. Notice to Proceed -- A written notice given by the City to Contractor fixing the date on which the Contractor may proceed with the Work and when Contract Times will commence to run.
HH. Project -- The total construction of which the Work to be performed under the Contract Documents may be the whole, or a part.
II. Recyclable Waste Materials -- Materials removed from the Site which are required to be diverted to a recycling center rather than an area landfill.
Recyclable Waste Materials include asphalt, concrete, brick, concrete block, and rock.
JJ. Schedule of Submittals -- A schedule, prepared and maintained by Contractor, of required submittals and the time requirements to facilitate scheduled performance of related construction activities.
KK. Shop Drawings -- All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work.
LL. Specifications -- That part of the Contract Documents consisting of written requirements for materials, equipment, systems, standards and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable thereto.
MM. Stop Payment Notice -- A written notice as defined in Civil Code section 8044.
NN. Subcontractor -- An individual or entity other than a Contractor having a contract with any other entity than the City for performance of any portion of the Work at the Site.
OO. Submittal -- Written and graphic information and physical samples prepared and supplied by the Contractor demonstrating various portions of the Work.
PP. Successful Bidder -- The Bidder submitting a responsive Bid to whom the City makes an award.
QQ. Supplier -- A manufacturer, fabricator, supplier, distributor, material man, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment used in the performance of the Work or to be incorporated in the Work.
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RR. Underground Facilities -- All underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities, including those that convey electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems.
SS. Unit Price Work -- Work to be paid for on the basis of unit prices as provided by the Contractor in its bid or as adjusted in accordance with the Contract Documents.
TT. Warranty -- A written guarantee provided to the City by the Contractor that the Work will remain free of defects and suitable for its intended use for the period required by the Contract Documents or the longest period permitted by the law of this State, whichever is longer.
UU. Work -- The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents.
ARTICLE 2 CONTRACT DOCUMENTS
A. Contract Documents. The Contract Documents are complementary, and what is called for by one shall be as binding as if called for by all.
B. Interpretations. The Contract Documents are intended to be fully cooperative and complementary. If the Contractor observes that any documents are in conflict, the Contractor shall promptly notify the Engineer in writing. In case of conflicts between the Contract Documents, the order of precedence shall be as follows:
1. Change Orders
2. Contract
3. Addenda
4. Special Conditions
5. Technical Specifications
6. Plans (Contract Drawings)
7. General Conditions
8. Instructions to Bidders
9. Notice Inviting Bids
10. Contractor’s Bid Forms
11. City Standard Specifications
12. City Standard Drawings
13. Caltrans Standard Specifrications, except Division 1
14. Caltrans Standard Plans
15. Reference Documents
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-57- 00 72 13 – GENERAL CONDITIONS
With reference to the Drawings, the order of precedence shall be as follows:
1. Figures govern over scaled dimensions
2. Detail drawings govern over general drawings
3. Addenda or Change Order drawings govern over Contract Drawings
4. Contract Drawings govern over Standard Drawings
5. Contract Drawings govern over Shop Drawings
C. Conflicts in Contract Documents. Notwithstanding the orders of precedence established above, in the event of conflicts, the higher standard, higher quality, and most expensive shall always apply.
D. Organization of Contract Documents.Organization of the Contract Documents into divisions, sections, and articles, and arrangement of drawings shall not control the Contractor in dividing Project Work among subcontractors or in establishing the extent of Work to be performed by any trade.
ARTICLE 3 PRECONSTRUCTION AND CONSTRUCTION COMMUNICATION Before any Work at the site is started, a conference attended by the City, Contractor, City’s Representative, and others as appropriate will be held to establish a working understanding among the parties as to the Work and to discuss the schedules referred to herein, procedures for handling Shop Drawings and other submittals, processing Applications for Payment, and maintaining required records.
At this conference the City and Contractor each shall designate, in writing, a specific individual to act as its authorized representative with respect to the services and responsibilities under the Contract. Such individuals shall have the authority to transmit instructions, receive information, render decisions relative to the Contract, and otherwise act on behalf of each respective party.
ARTICLE 4 CONTRACT DOCUMENTS: COPIES & MAINTENANCE
Contractor will be furnished, free of charge, five (5) copies of the Contract Documents.
Additional copies may be obtained at cost of reproduction.
Contractor shall maintain a clean, undamaged set of Contract Documents, including submittals, at the Project site.
ARTICLE 5 EXAMINATION OF DRAWINGS, SPECIFICATIONS AND SITE OF WORK
A. Examination of Contract Documents. Before commencing any portion of the Work, Contractor shall again carefully examine all applicable Contract Documents, the Project site, and other information given to Contractor as to materials and methods of construction and other Project requirements.
Contractor shall immediately notify the Engineer of any potential error, inconsistency, ambiguity, conflict, or lack of detail or explanation. If Contractor performs, permits, or causes the performance of any Work which is in error, inconsistent or ambiguous, or not sufficiently detailed or explained, Contractor shall bear any and all resulting costs, including, without limitation, the cost of 38077.00180\29080232.10
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correction. In no case shall the Contractor or any subcontractor proceed with Work if uncertain as to the applicable requirements.
B. Additional Instructions. After notification of any error, inconsistency, ambiguity, conflict, or lack of detail or explanation, the Engineer will provide any required additional instructions, by means of drawings or other written direction, necessary for proper execution of Work.
C. Quality of Parts, Construction and Finish. All parts of the Work shall be of the best quality of their respective kinds and the Contractor must use all diligence to inform itself fully as to the required construction and finish.
D. Contractor’s Variation from Contract Document Requirements. If it is found that the Contractor has varied from the requirements of the Contract Documents including the requirement to comply with all applicable laws, ordinances, rules and regulations, the Engineer may at any time, before or after completion of the Work, order the improper Work removed, remade or replaced by the Contractor at the Contractor’s expense.
ARTICLE 6 EXISTENCE OF UTILITIES AT THE WORK SITE
A. The City has endeavored to determine the existence of utilities at the Project site from the records of the owners of known utilities in the vicinity of the Project. The positions of these utilities as derived from such records are shown on the Plans.
B. Unless indicated otherwise on the Plans and Specifications, no excavations were made to verify the locations shown for underground utilities. The service connections to these utilities may not be not shown on the Plans. Any connections shown on the Plans are general locations. It shall be the responsibility of the Contractor to determine the exact location of all service connections. The Contractor shall make its own investigations, including exploratory excavations, to determine the locations and type of service connections, prior to commencing Work which could result in damage to such utilities. The Contractor shall immediately notify the City in writing of any utility discovered in a different position than shown on the Plans or which is not shown on the Plans.
C. If applicable, all water meters, water valves, fire hydrants, electrical utility vaults, telephone vaults, gas utility valves, and other subsurface structures shall be relocated or adjusted to final grade by the Contractor. Locations of existing utilities shown on the Plans are approximate and may not be complete. The Contractor shall be responsible for coordinating its Work with all utility companies during the construction of the Work.
D. Notwithstanding the above, pursuant to section 4215 of the Government Code, the City has the responsibility to identify, with reasonable accuracy, main or trunkline facilities on the plans and specifications. In the event that main or trunkline utility facilities are not identified with reasonable accuracy in the plans and specifications made a part of the invitation for Bids, the City shall assume the responsibility for their timely removal, relocation, or protection. 38077.00180\29080232.10
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E. Contractor, except in an emergency, shall contact the appropriate regional notification center (USA North), Northern California Underground Service Alert at 811 or 1-800-227-2600 or on-line at usanorth811.org at least two working days prior to commencing any excavation if the excavation will be performed in an area which is known, or reasonably should be known, to contain subsurface installations other than the underground facilities owned or operated by the City, and obtain an inquiry identification number from that notification center. No excavation shall be commenced or carried out by the Contractor unless such an inquiry identification number has been assigned to the Contractor or any subcontractor of the Contractor and the City has been given the identification number by the Contractor.
ARTICLE 7 SOILS INVESTIGATIONS
A. Reports and Drawings. The Special Conditions identify:
1. those reports known to the City of explorations and tests of subsurface conditions at or contiguous to the site; and
2. those drawings known to the City of physical conditions relating to existing surface or subsurface structures at the site (except Underground Facilities).
B. Limited Reliance by Contractor on Technical Data Authorized. Contractor may rely upon the accuracy of the “technical data” contained in such reports and drawings, which were expressly not created or obtained to evaluate or assist in the evaluation of constructability, and are not Contract Documents. Contractor shall make its own interpretation of the “technical data” and shall be solely responsible for any such interpretations. Except for reliance on the accuracy of such “technical data,” Contractor may not rely upon or make any claim against the City, City’s Representative, or Engineer of Record, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors, with respect to:
1. the completeness of such reports and drawings for Contractor’s purposes, including without limitation any aspects of the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, and safety precautions and programs incident thereto; or
2. other data, interpretations, opinions, conclusions and information contained in such reports or shown or indicated in such drawings; or
3. any Contractor interpretation of or conclusion drawn from any “technical data” or any such other data, interpretations, opinions, or information.
ARTICLE 8 CONTRACTOR’S SUPERVISION
Contractor shall continuously keep at the Project site, a competent and experienced full-time Project superintendent acceptable to the City. Superintendent must be able to proficiently speak, read and write in English and shall have the authority to make decisions on behalf of the Contractor.Contractor shall continuously provide efficient supervision of the Project. 38077.00180\29080232.10
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ARTICLE 9 WORKERS
A. Contractor shall at all times enforce strict discipline and good order among its employees. Contractor shall not employ on the Project any unfit person or any one not skilled in the Work assigned to him or her.
B. Any person in the employ of the Contractor whom the City may deem incompetent or unfit shall be dismissed from the Work and shall not be employed on this Project.
ARTICLE 10 INDEPENDENT CONTRACTORS
Contractor shall be an independent contractor for the City and not an employee. Contractor understands and agrees that it and all of its employees shall not be considered officers, employees, or agents of City and are not entitled to benefits of any kind normally provided employees of City, including but not limited to, state unemployment compensation or workers’ compensation. Contractor assumes full responsibility for the acts and omissions of its employees or agents related to the Work.
ARTICLE 11 SUBCONTRACTS
A. Contractor agrees to bind every subcontractor to the terms of the Contract Documents as far as such terms are applicable to subcontractor’s portion of the Work. Contractor shall be as fully responsible to the City for the acts and omissions of its subcontractors and of persons either directly or indirectly employed by its subcontractors, as Contractor is for acts and omissions of persons directly employed by Contractor. Nothing contained in these Contract Documents shall create any contractual relationship between any subcontractor and the City.
B. The City reserves the right to accept all subcontractors. The City’s acceptance of any subcontractor under this Contract shall not in any way relieve Contractor of its obligations in the Contract Documents.
C. Prior to substituting any subcontractor listed in the Bid Forms, Contractor must comply with the requirements of the Subletting and Subcontracting Fair Practices Act pursuant to California Public Contract Code section 4100 et seq.
ARTICLE 12 VERIFICATION OF EMPLOYMENT ELIGIBILITY
By executing this Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors, sub-subcontractors and consultants to comply with the same. Each person executing this Contract on behalf of Contractor verifies that he or she is a duly authorized officer of Contractor and that any of the following shall be grounds for the City to terminate the Contract for cause: (1) failure of the Contractor or its subcontractors, sub-subcontractors or consultants to meet any of the requirements provided for in this Article; (2) any misrepresentation or material omission concerning compliance with such requirements; or (3) failure to immediately remove from the Work any person found not to be in compliance with such requirements. 38077.00180\29080232.10
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ARTICLE 13 REQUESTS FOR SUBSTITUTION
A. For the purposes of this provision, the term “substitution” shall mean the substitution of any material, method or service substantially equal to or better in every respect to that indicated in the Standard Specifications or otherwise referenced herein.
B. Pursuant to Public Contract Code section 3400(b), the City may make a finding that is described in the Notice Inviting Bids that designates certain products, things, or services by specific brand or trade name.
C. Unless specifically designated in the Special Conditions, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such specifications shall be deemed to be used for the purpose of facilitating the description of the material, process, or article desired and shall be deemed to be followed by the words “or equal.” Contractor may, unless otherwise stated, offer for substitution any material, process, or article which may be substantially equal to or better in every respect to that so indicated or specified in the Contract Documents. However, the City has adopted uniform standards for certain materials, processes, and articles.
D. The Contractor shall submit substitution requests, together with substantiating data, for substitution of any “or equal” material, process, or article no later than 15 (15) calendar days after award of Contract. Provisions regarding submission of substitution requests shall not in any way authorize an extension of time for the performance of this Contract. If a substitution request is rejected by the City, the Contractor shall provide the material, method or service specified herein.
The City shall not be responsible for any costs incurred by the Contractor associated with substitution requests. The burden of proof as to the equality of any material, process, or article shall rest with the Contractor. The Engineer has the complete and sole discretion to determine if a material, process, or article is substantially equal to or better than that specified and to approve or reject all substitution requests.
E. Substantiating data as described above shall include, at a minimum, the following information:
1. A signed affidavit from the Contractor stating that the material, process, or article proposed as a substitution is substantially equal to or better than that specified in every way except as may be listed on the affidavit.
2. Illustrations, specifications, catalog cut sheets, and any other relevant data required to prove that the material, process, or article is substantially equal to or better than that specified.
3. A statement of the cost implications of the substitution being requested, indicating whether and why the proposed substitution will reduce or increase the amount of the contract.
4. Information detailing the durability and lifecycle costs of the proposed substitution.
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F. Failure to submit all the required substantiating data detailed above in a timely manner so that the substitution request can be adequately reviewed may result in rejection of the substitution request. The Engineer is not obligated to review multiple submittals related the same substitution request resulting from the Contractor’s failure to initially submit a complete package.
G. Time limitations within this Article shall be strictly complied with and in no case will an extension of time for completion of the contract be granted because of Contractor’s failure to provide substitution requests at the time and in the manner described herein.
H. The Contractor shall bear the costs of all City work associated with the review of substitution requests.
I. If substitution requests approved by the Engineer require that Contractor furnish materials, methods or services more expensive than that specified, the increased costs shall be borne by Contractor.
ARTICLE 14 SHOP DRAWINGS
A. Contractor shall check and verify all field measurements and shall submit with such promptness as to provide adequate time for review and cause no delay in its own Work or in that of any other contractor, subcontractor, or worker on the Project, six (6) copies of all shop drawings, calculations, schedules, and materials list, and all other provisions required by the Contract Documents.
Contractor shall sign all submittals affirming that submittals have been reviewed and approved by Contractor prior to submission to Engineer. Each signed submittal shall affirm that the submittal meets all the requirements of the Contract Documents except as specifically and clearly noted and listed on the transmittal letter of the submittal.
B. Contractor shall make any corrections required by the Engineer, and file with the Engineer six (6) corrected copies each, and furnish such other copies as may be needed for completion of the Work. Engineer’s acceptance of shop drawings shall not relieve Contractor from responsibility for deviations from the Contract Documents unless Contractor has, in writing, called Engineer’s attention to such deviations at time of submission and has secured the Engineer’s written acceptance. Engineer’s acceptance of shop drawings shall not relieve Contractor from responsibility for errors in shop drawings.
ARTICLE 15 SUBMITTALS
A. Contractor shall furnish to the Engineer for approval, prior to purchasing or commencing any Work, a log of all samples, material lists and certifications, mix designs, schedules, and other submittals, as required in the Contract Documents. The log shall indicate whether samples will be provided in accordance with other provisions of this Contract.
B. Contractor will provide samples and submittals, together with catalogs and supporting data required by the Engineer, to the Engineer within a reasonable time period to provide for adequate review and avoid delays in the Work. 38077.00180\29080232.10
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C. These requirements shall not authorize any extension of time for performance of this Contract. Engineer will check and approve such samples, but only for conformance with design concept of work and for compliance with information given in the Contract Documents. Work shall be in accordance with approved samples and submittals.
ARTICLE 16 MATERIALS
A. Except as otherwise specifically stated in the Contract Documents, Contractor shall provide and pay for all materials, labor, tools, equipment, lights, power, transportation, superintendence, temporary constructions of every nature, and all other services and facilities of every nature whatsoever necessary to execute and complete this Contract within specified time.
B. Unless otherwise specified, all materials shall be new and the best of their respective kinds and grades as noted and/or specified, and workmanship shall be of good quality.
C. Materials shall be furnished in ample quantities and at such times as to ensure uninterrupted progress of the Work and shall be stored properly and protected as required by the Contract Documents. Contractor shall be entirely responsible for damage or loss by weather or other causes to materials or Work.
D. No materials, supplies, or equipment for Work under this Contract shall be purchased subject to any chattel mortgage or under a conditional sale or other agreement by which an interest therein or in any part thereof is retained by the seller or supplier. Contractor warrants good title to all material, supplies, and equipment installed or incorporated in the Work and agrees upon completion of all work to deliver the Project, to the City free from any claims, liens, or charges.
E. Materials shall be stored on the Project site in such manner so as not to interfere with any operations of the City or any independent contractor.
F. Contractor shall verify all measurements, dimensions, elevations, and quantities before ordering any materials or performing any Work, and the City shall not be liable for Contractor’s failure to so. No additional compensation, over and above payment for the actual quantities at the prices set out in the Bid Form, will be allowed because of differences between actual measurements, dimension, elevations and quantities and those indicated on the Plans and in the Specifications.Any difference therein shall be submitted to the Engineer for consideration before proceeding with the Work.
G. The City shall provide compensation for actual quantities of materials installed in accordance with the Contract Documents and at the price set forth in the Contractor’s bid and/or executed change order. The City is not obligated to pay for materials stored on/off site but not yet installed in accordance with the Contract Documents.
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ARTICLE 17 PERMITS AND LICENSES
A. Contractor shall obtain all other necessary permits and licenses for the construction of the Project, including encroachment permits, and shall pay all fees required by law and shall comply with all laws, ordinances, rules and regulations relating to the Work and to the preservation of public health and safety. Before acceptance of the Project, the Contractor shall submit all licenses, permits, certificates of inspection and required approvals to the City.Any construction permits required by City for performing any work on this project will be issued by City at no charge to Contractor. Contractor and all subcontractors shall maintain a City business license at all times they are performing the Work.
ARTICLE 18 TRENCHES
A. Trenches Five Feet or More in Depth. Contractor shall submit to the Engineer at the preconstruction meeting, a detailed plan showing the design of shoring, bracing, sloping or other provisions to be made for worker protection from hazards of caving ground during the excavation of any trench or trenches five feet or more in depth. If such plan varies from shoring system standards established by the Construction Safety Orders of the California Code of Regulations, Department of Industrial Relations, the plan shall be prepared by a California registered civil or structural engineer. The plan shall not be less effective than the shoring, bracing, sloping, or other provisions of the Construction Safety Orders, as defined in the California Code of Regulations.
The Contractor shall designate in writing the “competent person” as defined in Title 8, California Code of Regulations, who shall be present at the Work Site each day that trenching/excavation is in progress. The “competent person” shall prepare and provide daily trenching/excavation inspection reports to the Engineer. Contractor shall also submit a copy of its annual California Occupational Safety and Health Administration (Cal/OSHA) trench/excavation permit.
B. Excavations Deeper than Four Feet. If the Work involves excavating trenches or other excavations that extend deeper than four feet below the surface, Contractor shall promptly, and before the excavation is further disturbed, notify the City in writing of any of the following conditions:
1. Material that the Contractor believes may be material that is hazardous waste, as defined in section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law.
2. Subsurface or latent physical conditions at the site differing from those indicated.
3. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract The City shall promptly investigate the conditions, and if it finds that the conditions do so materially differ, or do involve hazardous waste, and cause a 38077.00180\29080232.10
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decrease or increase in Contractor’s cost of, or the time required for, performance of any part of the Work, shall issue a change order under the procedures described in the Contract Documents.
In the event that a dispute arises between the City and the Contractor as to whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the Contractor’s cost of, or time required for, performance of any part of the Work, the Contractor shall not be excused from any scheduled completion date provided for by the Contract, but shall proceed with all Work to be performed under the Contract. 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.
ARTICLE 19 DIVERSION OF RECYCLABLE WASTE MATERIALS
In compliance with the applicable City’s waste reduction and recycling efforts, Contractor shall divert all Recyclable Waste Materials to appropriate recycling centers as required for compliance with the local jurisdiction’s waste diversion ordinances, and provide the City Engineer with detailed records and quantities of the materials that were sent to recycling centers. Contractor will be required to submit weight tickets and written proof of diversion with its monthly progress payment requests. Contractor shall complete and execute any certification forms required by City or other applicable agencies to document Contractor’s compliance with these diversion requirements. All costs incurred for these waste diversion efforts shall be the responsibility of the Contractor.
ARTICLE 20 REMOVAL OF HAZARDOUS MATERIALS
Should Contractor encounter material reasonably believed to be polychlorinated biphenyl (PCB) or other toxic wastes and hazardous materials which have not been rendered harmless at the Project site, the Contractor shall immediately stop work at the affected Project site and shall report the condition to the City in writing. The City shall contract for any services required to directly remove and/or abate PCBs and other toxic wastes and hazardous materials, if required by the Project site(s), and shall not require the Contractor to subcontract for such services. The Work in the affected area shall not thereafter be resumed except by written agreement of the City and Contractor.
ARTICLE 21 SANITARY FACILITIES
Contractor shall provide sanitary temporary toilet buildings and hand washing facilities for the use of all workers. All toilets and hand washing facilities shall comply with all applicable federal, state and local laws, codes, ordinances, and regulations. Toilets shall be kept supplied with toilet paper and shall have workable door fasteners. Toilets and hand washing facilities shall be serviced no less than once weekly and shall be present in a quantity of not less than 1 per 20 workers as required by Cal/OSHA regulations. The toilets and hand washing facilities shall be maintained in a sanitary condition at all times. Use of toilet and hand washing facilities in the Work under construction shall not be permitted. Any other sanitary facilities required by Cal/OSHA shall be the responsibility of the Contractor. 38077.00180\29080232.10
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ARTICLE 22 AIR POLLUTION CONTROL
Contractor shall comply with all air pollution and dust control rules, regulations, ordinances and statutes, including, but not limited to, those required by thet Air Quality Management District. All containers of paint, thinner, curing compound, solvent or liquid asphalt shall be labeled to indicate that the contents fully comply with the applicable material requirements.
ARTICLE 23 LAYOUT AND FIELD ENGINEERING
All field engineering required for laying out the Work and establishing grades for earthwork operations shall be furnished by the Contractor at its expense.
ARTICLE 24 TESTS AND INSPECTIONS
A. If the Contract Documents, the Engineer, or any instructions, laws, ordinances, or public authority requires any part of the Work to be tested or Approved, Contractor shall provide the Engineer at least two (2) working days’ notice of its readiness for observation or inspection. If inspection is by a public authority other than the City, Contractor shall promptly inform the City of the date fixed for such inspection. Required certificates of inspection (or similar) shall be secured by Contractor. Costs for City testing and City inspection shall be paid by the City.
Costs of tests for Work found not to be in compliance shall be paid by the Contractor.
B. If any Work is done or covered up without the required testing or approval, the Contractor shall uncover or deconstruct the Work, and the Work shall be redone after completion of the testing at the Contractor’s cost in compliance with the Contract Documents.
C. Where inspection and testing are to be conducted by an independent laboratory or agency, materials or samples of materials to be inspected or tested shall be selected by such laboratory or agency, or by the City, and not by Contractor. All tests or inspections of materials shall be made in accordance with the commonly recognized standards of national organizations.
D. In advance of manufacture of materials to be supplied by Contractor which must be tested or inspected, Contractor shall notify the City so that the City may arrange for testing at the source of supply. Any materials which have not satisfactorily passed such testing and inspection shall not be incorporated into the Work.
E. If the manufacture of materials to be inspected or tested will occur in a plant or location greater than sixty (60) miles from the City, the Contractor shall pay for any excessive or unusual costs associated with such testing or inspection, including but not limited to excessive travel time, standby time and required lodging.
F. Reexamination of Work may be ordered by the City. If so ordered, Work must be uncovered or deconstructed by Contractor. If Work is found to be in accordance with the Contract Documents, the City shall pay the costs of reexamination and 38077.00180\29080232.10
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reconstruction. If such work is found not to be in accordance with the Contract Documents, Contractor shall pay all costs.
ARTICLE 25 PROTECTION OF WORK AND PROPERTY
A. The Contractor shall be responsible for all damages to persons or property that occurs as a result of the Work. Contractor shall be responsible for the proper care and protection of all materials delivered and Work performed until completion and final Acceptance by the City. All Work shall be solely at the Contractor’s risk. Contractor shall adequately protect adjacent property from settlement or loss of lateral support as necessary. Contractor shall comply with all applicable safety laws and building codes to prevent accidents or injury to persons on, about, or adjacent to the Project site where Work is being performed.
Contractor shall erect and properly maintain at all times, as required by field conditions and progress of work, all necessary safeguards, signs, barriers, lights, and watchmen for protection of workers and the public, and shall post danger signs warning against hazards created in the course of construction.
B. In an emergency affecting safety of life or of work or of adjoining property, Contractor, without special instruction or authorization from the Engineer, is hereby permitted to act to prevent such threatened loss or injury; and Contractor shall so act, without appeal, if so authorized or instructed by the Engineer or the City. Any compensation claimed by Contractor on account of emergency work shall be determined by and agreed upon by the City and the Contractor.
ARTICLE 26 CONTRACTOR’S MEANS AND METHODS
Contractor is solely responsible for the means and methods utilized to perform the Work. In no case shall the Contractor’s means and methods deviate from commonly used industry standards.
ARTICLE 27 AUTHORIZED REPRESENTATIVES
The City shall designate representatives, who shall have the right to be present at the Project site at all times. The City may designate an inspector who shall have the right to observe all of the Contractor’s Work. The inspector shall not be responsible for the Contractor’s failure to carry out the Work in accordance with the Contract Documents.Contractor shall provide safe and proper facilities for such access.
ARTICLE 28 HOURS OF WORK
A. As provided in Article 3 (commencing at section 1810), Chapter 1, Part 7, Division 2 of the Labor Code, Contractor stipulates that eight (8) hours of labor shall constitute a legal day’s work. The time of service of any worker employed at any time by the Contractor or by any subcontractor on any subcontract under this Contract upon the Work or upon any part of the Work contemplated by this Contract is limited and restricted to eight (8) hours during any one calendar day and 40 hours during any one calendar week, except as hereinafter provided.
Notwithstanding the provisions herein above set forth, work performed by employees of Contractor in excess of eight (8) hours per day, and 40 hours during any one week, shall be permitted upon this public work upon 38077.00180\29080232.10
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compensation for all hours worked in excess of eight (8) hours per day at not less than one and one-half times the basic rate of pay.
B. The Contractor and every subcontractor shall keep an accurate record showing the name of and actual hours worked each calendar day and each calendar week by each worker employed in connection with the Work or any part of the Work contemplated by this Contract. The record shall be kept open at all reasonable hours to the inspection of the City and to the Division of Labor Law Enforcement, Department of Industrial Relations of the State of California.
C. The Contractor shall pay to the City a penalty of twenty-five dollars ($25.00) for each worker employed in the execution of this Contract 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 calendar day and 40 hours in any one calendar week in violation of the provisions of Article 3 (commencing at section 1810), Chapter 1, Part 7, Division 2 of the Labor Code.
D. Any work necessary to be performed after regular working hours, or on Saturdays and Sundays or other holidays, shall be performed without additional expense to the City. Contractor shall also timely notify the City when work will be perfomed outside regular working hours or on weekends or holidays.
E. City will provide inspection during normal working hours from 7:00 a.m. to 3:30 p.m. Monday through Friday. Inspection before or after this time will be charged to the Contractor as reimbursable inspection time. Inspections on weekends requires two days’ notice for review and approval. Upon written request and approval the 8.5 hour working day may be changed to other limits subject to city/county ordinance.
F. Refer to the most current version of the City of Milpitas Noise Abatement Ordinance, Ord. 196.6 of the Municipal Code Section V-213. It shall be unlawful for any person to engage or permit to engage in construction of any building or related road or walkway, pool, or landscape improvement or in the construction operations related thereto including to operate, permit, use, or cause to operate any of the following at the Project site, other than between the hours of 7:00 a.m. to 7:00 p.m., Monday through Sunday, unless otherwise approved by the City:
1. Powered Vehicles
2. Construction Equipment
3. Loading and Unloading Vehicles
4. Domestic Power Tools
ARTICLE 29 PAYROLL RECORDS; LABOR COMPLIANCE
A. Pursuant to Labor Code section 1776, Contractor and all subcontractors shall maintain weekly certified payroll records, showing the names, addresses, Social Security numbers, work classifications, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, 38077.00180\29080232.10
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apprentice, worker, or other employee employed by them in connection with the Work under this Contract. Contractor shall certify under penalty of perjury that records maintained and submitted by Contractor are true and accurate.
Contractor shall also require subcontractor(s) to certify weekly payroll records under penalty of perjury.
B. In accordance with Labor Code section 1771.4, the Contractor and each subcontractor shall furnish the certified payroll records directly to the Department of Industrial Relations (“DIR”) on the specified interval and format prescribed by the DIR, which may include electronic submission. Contractor shall comply with all requirements and regulations from the DIR relating to labor compliance monitoring and enforcement. The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
C. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Work, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.
D. The payroll records described herein shall be certified and submitted by the Contractor at a time designated by the City. The Contractor shall also provide the following:
1. A certified copy of the employee’s payroll records shall be made available for inspection or furnished to such employee or his or her authorized representative on request.
2. A certified copy of all payroll records described herein shall be made available for inspection or furnished upon request of the DIR.
E. Unless submitted electronically, the certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement (“DLSE”) of the DIR or shall contain the same information as the forms provided by the DLSE.
F. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency, the City, the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement shall be marked or obliterated in such a manner as to prevent disclosure of an individual's name, address and social security number. The name and address of the Contractor awarded the Contract or performing the contract shall not be marked or obliterated.
G. In the event of noncompliance with the requirements of this Article, the Contractor shall have ten (10) calendar days in which to comply subsequent to 38077.00180\29080232.10
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receipt of written notice specifying in what respects the Contractor must comply with this Article. Should noncompliance still be evident after such 10-day period, the Contractor shall pay a penalty of one hundred dollars ($100.00) to the City for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payment then due.
H. The responsibility for compliance with this Article shall rest upon the Contractor.
ARTICLE 30 PREVAILING RATES OF WAGES
A. The Contractor is aware of the requirements of Labor Code sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Since this Project involves an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. The Contractor shall obtain a copy of the prevailing rates of per diem wages at the commencement of this Contract from the website of the Division of Labor Statistics and Research of the Department of Industrial Relations located at www.dir.ca.gov. In the alternative, the Contractor may view a copy of the prevailing rate of per diem wages which are on file at the City’s Administration Office and shall be made available to interested parties upon request. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification, or type of worker needed to perform work on the Project available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the Project site. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and authorized volunteers free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or allege failure to comply with the Prevailing Wage Laws.
B. The Contractor shall forfeit as a penalty to the City not more than Two Hundred Dollars ($200.00), pursuant to Labor Code section 1775, for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate as determined by the Director of the Department of Industrial Relations for such work or craft in which such worker is employed for any public work done under the Contract by it or by any subcontractor under it. The difference between such prevailing wage rate and the amount paid to each worker for each calendar day or portion thereof, for which each worker was paid less than the prevailing wage rate, shall be paid to each worker by the Contractor.
C. Contractor shall post, at appropriate conspicuous points on the Project site, a schedule showing all determined general prevailing wage rates and all authorized deductions, if any, from unpaid wages actually earned. 38077.00180\29080232.10
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ARTICLE 31 PUBLIC WORKS CONTRACTOR REGISTRATION
Pursuant to Labor Code sections 1725.5 and 1771.1, the Contractor and its subcontractors must be registered with the Department of Industrial Relations prior to the execution of a contract to perform public works. By entering into this Contract, Contractor represents that it is aware of the registration requirement and is currently registered with the DIR. Contractor shall maintain a current registration for the duration of the Project. Contractor shall further include the requirements of Labor Code sections 1725.5 and 1771.1 in any subcontract and ensure that all subcontractors are registered at the time this Contract is entered into and maintain registration for the duration of the Project. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
ARTICLE 32 EMPLOYMENT OF APPRENTICES
A. Contractor and all subcontractors shall comply with the requirements of Labor Code sections 1777.5 and 1777.6 in the employment of apprentices.
B. Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from the Director of Industrial Relations, ex officio the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices.
C. Knowing violations of Labor Code section 1777.5 will result in forfeiture not to exceed one hundred dollars ($100.00) for each calendar day of non-compliance pursuant to Labor Code section 1777.7.
D. The responsibility for compliance with this Article shall rest upon the Contractor.
ARTICLE 33 NONDISCRIMINATION/EQUAL EMPLOYMENT OPPORTUNITY Pursuant to Labor Code section 1735 and other applicable provisions of law, the Contractor and its subcontractors shall not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, or any other classifications protected by law on this Project. The Contractor will take affirmative action to insure that employees are treated during employment or training without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, or any other classifications protected by law.
Employment Eligibility; Contractor. By executing this Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Contractor. Contractor also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Contract, and shall not violate any such law at any time during the term of the Contract. Contractor shall avoid any violation of any such law during the term of this 38077.00180\29080232.10
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Contract by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method.
Contractor shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours.
The City shall not be responsible for any costs or expenses related to Contractor’s compliance with the requirements provided for or referred to herein.
Employment Eligibility; Subcontractors, Sub-subcontractors and Consultants. To the same extent and under the same conditions as Contractor, Contractor shall require all of its subcontractors, sub-subcontractors and consultants performing any part of the Work or of this Contract to make the same verifications and comply with all requirements and restrictions provided for herein.
Employment Eligibility; Failure to Comply. Each person executing this Contract on behalf of Contractor verifies that he or she is a duly authorized officer of Contractor, and understands that any of the following shall be grounds for the City to terminate the Contract for cause: (1) failure of Contractor or its subcontractors, sub-subcontractors or consultants to meet any of the requirements provided for herein; (2) any misrepresentation or material omission concerning compliance with such requirements; or (3) failure to immediately remove from the Work any person found not to be in compliance with such requirements.
ARTICLE 34 DEBARMENT OF CONTRACTORS AND SUBCONTRACTORS
Contractors or subcontractors may not perform work on a public works project with a subcontractor who is ineligible to perform work on a public project pursuant to Labor Code section 1777.1 or 1777.7. Any contract on a public works project entered into between a contractor and a debarred subcontractor is void as a matter of law. A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract. Any public money that is paid, or may have been paid to a debarred subcontractor by a contractor on the project shall be returned to the City. The Contractor shall be responsible for the payment of wages to workers of a debarred subcontractor who has been allowed to work on the project.
ARTICLE 35 LABOR/EMPLOYMENT SAFETY
The Contractor shall comply with all applicable laws and regulations of the federal, state, and local government, including Cal/OSHA requirements and requirements for verification of employees’ legal right to work in the United States.
The Contractor shall maintain emergency first aid treatment for his employees which complies with the Federal Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.), and California Code of Regulations, Title 8, Industrial Relations Division 1, Department of Industrial Relations, Chapter 4. The Contractor shall ensure the availability of emergency medical services for its employees in accordance with California Code of Regulations, Title 8, Section 1512.
The Contractor shall submit the Illness and Injury Prevention Program and a Project site specific safety program to the City prior to beginning Work at the Project site. Contractor shall maintain 38077.00180\29080232.10
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a confined space program that meets or exceeds the City Standards. Contractor shall adhere to the City’s lock out tag out program.
ARTICLE 36 INSURANCE
The Contractor shall obtain, and at all times during performance of the Work of Contract, maintain all of the insurance described in this Article. Contractor shall not commence Work under this Contract until it has provided evidence satisfactory to the City that it has secured all insurance required hereunder. Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Article. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Contract for cause. Contractor shall furnish City with original certificates of insurance and endorsements effective coverage required by this Contract on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms acceptable to the City. All certificates and endorsements must be received and approved by the City before Work commences.
A. Additional Insureds; Waiver of Subrogation. The City, its elected and appointed officials, officers, attorneys, agents employees and volunteers shall be named as Additional Insureds on Contractor’s All Risk policy and on Contractor’s and its subcontractors’ policies of Commercial General Liability and Automobile Liability insurance using, for Contractor’s policy/ies of Commercial General Liability insurance, ISO CG forms 20 10 and 20 37 (or endorsements providing the exact same coverage, including completed operations), and, for subcontractors’ policies of Commercial General Liability insurance, ISO CG form 20 38 (or endorsements providing the exact same coverage). Notwithstanding the minimum limits set forth in this Contract for any type of insurance coverage, all available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as Additional Insureds hereunder. Contractor and its insurance carriers shall provide a Waiver of Subrogation in favor of those parties.
B. Workers’ Compensation Insurance. The Contractor shall provide workers’ compensation insurance for all of the employees engaged in Work under this Contract, on or at the Site, and, in case of any sublet Work, the Contractor shall require the subcontractor similarly to provide workers’ compensation insurance for all the latter’s employees as prescribed by State law. Any class of employee or employees not covered by a subcontractor’s insurance shall be covered by the Contractor’s insurance. In case any class of employees engaged in work under this Contract, on or at the Site, is not protected under the Workers’ Compensation Statutes, the Contractor shall provide or shall cause a subcontractor to provide, adequate insurance coverage for the protection of such employees not otherwise protected. The Contractor is required to secure payment of compensation to his employees in accordance with the provisions of section 3700 of the Labor Code. The Contractor shall file with the City certificates of his insurance protecting workers. Company or companies providing insurance coverage shall be acceptable to the City, if in the form and coverage as set forth in the Contract Documents.
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C. Employer’s Liability Insurance. Contractor shall provide Employer’s Liability Insurance, including Occupational Disease, in the amount of at least one million dollars ($1,000,000.00) per person per accident. Contractor shall provide City with a certificate of Employer’s Liability Insurance. Such insurance shall comply with the provisions of the Contract Documents. The policy shall be endorsed, if applicable, to provide a Borrowed Servant/Alternate Employer Endorsement and contain a Waiver of Subrogation in favor of the City.
D. Commercial General Liability Insurance. Contractor shall provide “occurrence” form Commercial General Liability insurance coverage at least as broad as the most current ISO CGL Form 00 01, including but not limited to, premises liability, contractual liability, products/completed operations, personal and advertising injury which may arise from or out of Contractor’s operations, use, and management of the Site, or the performance of its obligations hereunder. The policy shall not contain any exclusion contrary to this Contract including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 39); or (2) cross-liability for claims or suits against one insured against another. Policy limits shall not be less than $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. Defense costs shall be paid in addition to the limits.
1. Such policy shall comply with all the requirements of this Article. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Contractor from liability in excess of such coverage, nor shall it limit Contractor’s indemnification obligations to the City, and shall not preclude the City from taking such other actions available to the City under other provisions of the Contract Documents or law.
2. All general liability policies provided pursuant to the provisions of this Article shall comply with the provisions of the Contract Documents.
3. All general liability policies shall be written to apply to all bodily injury, including death, property damage, personal injury, owned and non-owned equipment, blanket contractual liability, completed operations liability, explosion, collapse, under-ground excavation, removal of lateral support, and other covered loss, however occasioned, occurring during the policy term, and shall specifically insure the performance by Contractor of that part of the indemnification contained in these General Conditions relating to liability for injury to or death of persons and damage to property.
4. If the coverage contains one or more aggregate limits, a minimum of 50% of any such aggregate limit must remain available at all times; if over 50% of any aggregate limit has been paid or reserved, the City may require additional coverage to be purchased by Contractor to restore the required limits. Contractor may combine primary, umbrella, and as broad as 38077.00180\29080232.10
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possible excess liability coverage to achieve the total limits indicated above. Any umbrella or excess liability policy shall include the additional insured endorsement described in the Contract Documents.
5. All policies of general liability insurance shall permit and Contractor does hereby waive any right of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss.
E. Automobile Liability Insurance. Contractor shall provide “occurrence” form Automobile Liability Insurance at least as broad as ISO CA 00 01 (Any Auto) in the amount of, at least, one million dollars ($1,000,000) per accident for bodily injury and property damage. Such insurance shall provide coverage with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Contractor or for which Contractor is responsible, in a form and with insurance companies acceptable to the City. All policies of automobile insurance shall permit and Contractor does hereby waive any right of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss.
F. Builder’s Risk [“All Risk”] [RESERVED]
G. Contractor’s Pollution Liability Coverage. [RESERVED] H. Contractor shall require all tiers of sub-contractors working under this Contract to provide the insurance required under this Article unless otherwise agreed to in writing by City. Contractor shall make certain that any and all subcontractors hired by Contractor are insured in accordance with this Contract. If any subcontractor’s coverage does not comply with the foregoing provisions, Contractor shall indemnify and hold the City harmless from any damage, loss, cost, or expense, including attorneys’ fees, incurred by the City as a result thereof.
ARTICLE 37 FORM AND PROOF OF CARRIAGE OF INSURANCE
A. Any insurance carrier providing insurance coverage required by the Contract Documents shall be admitted to and authorized to do business in the State of California unless waived, in writing, by the City’s Risk Manager. Carrier(s) shall have an A.M. Best rating of not less than an A:VII. Insurance deductibles or selfinsured retentions must be declared by the Contractor. At the election of the City the Contractor shall either 1) reduce or eliminate such deductibles or self-insured retentions, or 2) procure a bond which guarantees payment of losses and related investigations, claims administration, and defense costs and expenses. If umbrella or excess liability coverage is used to meet any required limit(s) specified herein, the Contractor shall provide a “follow form” endorsement satisfactory to the City indicating that such coverage is subject to the same terms and conditions as the underlying liability policy.
B. Each insurance policy required by this Contract shall be endorsed to state that:
(1) coverage shall not be suspended, voided, reduced or cancelled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (2) any failure to comply with reporting or other 38077.00180\29080232.10
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provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its officials, officers, agents, employees, and volunteers.
C. The Certificates(s) and policies of insurance shall contain or shall be endorsed to contain the covenant of the insurance carrier(s) that it shall provide no less than thirty (30) days written notice be given to the City prior to any material modification or cancellation of such insurance. In the event of a material modification or cancellation of coverage, the City may terminate the Contract or stop the Work in accordance with the Contract Documents, unless the City receives, prior to such effective date, another properly executed original Certificate of Insurance and original copies of endorsements or certified original policies, including all endorsements and attachments thereto evidencing coverage’s set forth herein and the insurance required herein is in full force and effect. Contractor shall not take possession, or use the Site, or commence operations under this Contract until the City has been furnished original Certificate(s) of Insurance and certified original copies of endorsements or policies of insurance including all endorsements and any and all other attachments as required in this Article. The original endorsements for each policy and the Certificate of Insurance shall be signed by an individual authorized by the insurance carrier to do so on its behalf.
D. The Certificate(s) of Insurance, policies and endorsements shall so covenant and shall be construed as primary, and the City’s insurance and/or deductibles and/or self-insured retentions or self-insured programs shall not be construed as contributory.
E. City reserves the right to adjust the monetary limits of insurance coverages during the term of this Contract including any extension thereof if, in the City’s reasonable judgment, the amount or type of insurance carried by the Contractor becomes inadequate.
F. Contractor shall report to the City, in addition to the Contractor’s insurer, any and all insurance claims submitted by the Contractor in connection with the Work under this Contract.
ARTICLE 38 TIME FOR COMPLETION AND LIQUIDATED DAMAGES
A. Time for Completion/Liquidated Damages. Time is of the essence in the completion of the Work. Work shall be commenced within ten (10) Days of the date stated in the City’s Notice to Proceed and shall be completed by Contractor specified in the Contract Documents. The City is under no obligation to consider early completion of the Project; and the Contract completion date shall not be amended by the City’s receipt or acceptance of the Contractor’s proposed earlier completion date. Furthermore, Contractor shall not, under any circumstances, receive additional compensation from the City (including but not limited to indirect, general, administrative or other forms of overhead costs) for the period between the time of earlier completion proposed by the Contractor and the Contract completion date. If the Work is not completed as stated in the Contract Documents, it is understood that the City will suffer damage. In accordance with Government Code section 53069.85, being impractical and infeasible to 38077.00180\29080232.10
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determine the amount of actual damage, it is agreed that Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum stipulated in the Contract for each calendar day of delay until the Work is fully completed as determined by the City. Contractor and its surety shall be liable for any liquidated damages. Any money due or to become due the Contractor may be retained to cover liquidated damages.
B. Inclement Weather. Contractor shall abide by the Engineer’s determination of what constitutes inclement weather. Time extensions for inclement weather shall only be granted when the Work stopped during inclement weather is on the critical path of the Project schedule. The Contractor shall implement measures and make contingencies as may be required to protect the Work and to all allow Work to proceed during wet or inclement weather to prevent delay or stoppage.
C. Extension of Time. Contractor shall not be charged liquidated damages because of any delays in completion of the Work due to unforeseeable causes beyond the control and without the fault or negligence of Contractor (or its subcontractors or suppliers). Contractor shall within five (5) Days of identifying any such delay notify the City in writing of causes of delay. The City shall ascertain the facts and extent of delay and grant extension of time for completing the Work when, in its judgment, the facts justify such an extension. Time extensions to the Project shall be requested by the Contractor as they occur and without delay. No delay claims shall be permitted unless the event or occurrence delays the completion of the Project beyond the Contract completion date.
D. No Damages for Reasonable Delay. The City’s liability to Contractor for delays for which the City is responsible shall be limited to only an extension of time unless such delays were unreasonable under the circumstances. In no case shall the City be liable for any costs which are borne by the Contractor in the regular course of business, including, but not limited to, home office overhead and other ongoing costs. Damages caused by unreasonable City delay, including delays caused by items that are the responsibility of the City pursuant to Government Code section 4215, shall be based on actual costs only, no proportions or formulas shall be used to calculate any delay damages.
ARTICLE 39 SCHEDULE OF VALUES, COST BREAKDOWN AND PERIODIC
ESTIMATES
Contractor shall furnish on forms Approved by the City:
A. When requested by the Engineer, and within ten (10) Days of Notice to Proceed with the Contract, the Contractor shall provide a Schedule of Values consisting of a detailed estimate giving a complete breakdown of the Contract price for each lump sum bid item in the Contract.
B. A monthly itemized estimate of Work done for the purpose of making progress payments. In order for the City to consider and evaluate each progress payment application, the Contractor shall submit a detailed measurement of Work performed and a progress estimate of the value thereof before the tenth (10th) Day of the following month.
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C. Contractor shall submit, with each of its payment requests, an adjusted list of actual quantities, verified by the Engineer, for unit price items listed, if any, in the Bid Form.
D. Following the City’s Acceptance of the Work, the Contractor shall submit to the City a written statement of the final quantities of unit price items for inclusion in the final payment request.
E. The City shall have the right to adjust any estimate of quantity and to subsequently correct any error made in any estimate for payment.
Contractor shall certify under penalty of perjury, that all cost breakdowns and periodic estimates accurately reflect the Work on the Project.
ARTICLE 40 PROGRESS ESTIMATES AND PAYMENT
A. By the tenth (10th) Day of the following calendar month, Contractor shall submit to Engineer a payment request which shall set forth in detail the value of the Work done for the period beginning with the date work was first commenced and ending on the end of the calendar month for which the payment request is prepared. Contractor shall include any amount earned for authorized extra work.
From the total thus computed, a deduction shall be made in the amount of five percent (5%) for retention, except where the City has adopted a finding that the Work done under the Contract is substantially complex, and then the amount withheld as retention shall be the percentage specified in the Notice Inviting Bids.
From the remainder a further deduction may be made in accordance with Section B below. The amount computed, less the amount withheld for retention and any amounts withheld as set forth below, shall be the amount of the Contractor’s payment request.
B. The Contractor shall provide an updated project schedule with each payment request.
C. The City may withhold a sufficient amount or amounts of any payment or payments otherwise due to Contractor, as in his judgment may be necessary to cover:
1. Payments which may be past due and payable for just claims against Contractor or any subcontractors for labor or materials furnished in and about the performance of work on the Project under this Contract.
2. Defective work not remedied.
3. Failure of Contractor to make proper payments to his subcontractor or for material or labor.
4. Completion of the Contract if there is a reasonable doubt that the Work can be completed for balance then unpaid.
5. Damage to another contractor or a third party.
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6. Amounts which may be due the City for claims against Contractor.
7. Failure of Contractor to keep the record (“as-built”) drawings up to date.
8. Failure to provide update on construction schedule as required herein.
9. Site cleanup.
10. Failure to comply with Contract Documents.
11. Liquidated damages.
12. Legally permitted penalties.
D. The City may apply such withheld amount or amounts to payment of such claims or obligations at its discretion with the exception of subsections (B)(1), (3), and (5) of this Article, which must be retained or applied in accordance with applicable law. In so doing, the City shall be deemed the agent of Contractor and any payment so made by the City shall be considered as a payment made under contract by the City to Contractor and the City shall not be liable to Contractor for such payments made in good faith. Such payments may be made without prior judicial determination of claim or obligations. The City will render Contractor a proper accounting of such funds disbursed on behalf of Contractor.
E. Upon receipt, the Engineer shall review the payment request to determine whether it is undisputed and suitable for payment. If the payment request is determined to be unsuitable for payment, it shall be returned to Contractor as soon as practicable but not later than seven (7) Days after receipt, accompanied by a document setting forth in writing the reasons why the payment request is not proper. The City shall make the progress payment within 30 calendar days after the receipt of an undisputed and properly submitted payment request from Contractor, provided that a release of liens and claims has been received from the Contractor pursuant to Civil Code section 8132. The number of days available to the City to make a payment without incurring interest pursuant to this paragraph shall be reduced by the number of days by which the Engineer exceeds the seven (7) Day requirement.
F. A payment request shall be considered properly executed if funds are available for payment of the payment request and payment is not delayed due to an audit inquiry by the financial officer of the City.
ARTICLE 41 SECURITIES FOR MONEY WITHHELD
Pursuant to section 22300 of the Public Contract Code of the State of California, Contractor may request the City to make retention payments directly to an escrow agent or may substitute securities for any money withheld by the City to ensure performance under the contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the City or with a state or federally chartered bank as the escrow agent who shall return such securities to Contractor upon satisfactory completion of the contract. Deposit of securities with an escrow agent shall be subject to a written agreement substantially in the form provided in section 22300 of the Public Contract Code.
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ARTICLE 42 CHANGES AND EXTRA WORK.
A. Contract Change Orders.
1. The City, without invalidating the Contract, may order changes in the Work consisting of additions, deletions or other revisions, and the Contract Price and Contract Time shall be adjusted accordingly. Except as otherwise provided herein, all such changes in the Work shall be authorized by Change Order, and shall be performed under the applicable conditions of the Contract Documents. A Change Order signed by the Contractor indicates the Contractor's agreement therewith, including any adjustment in the Contract Price or the Contract Time, and the full and final settlement of all costs (direct, indirect and overhead) related to the Work authorized by the Change Order.
2. Contractor shall promptly execute changes in the Work as directed in writing by the City even when the parties have not reached agreement on whether the change increases the scope of Work or affects the Contract Price or Contract Time. All claims for additional compensation shall be presented in writing. No claim will be considered after the Work in question has been completed unless a written Change Order has been issued or a timely written notice of claim has been made by Contractor.
3. Whenever any change is made as provided for herein, such change shall be considered and treated as though originally included in the Contract, and shall be subject to all terms, conditions, and provisions of the original Contract.
4. Contractor shall not be entitled to claim or bring suit for damages, whether for loss of profits or otherwise, on account of any decrease or omission of any item or portion of Work to be done.
5. No dispute, disagreement, or failure of the parties to reach agreement on the terms of the Change Order shall relieve the Contractor from the obligation to proceed with performance of the work, including Additional Work, promptly and expeditiously.
6. Contractor shall make available to the City any of the Contractor’s documents related to the Project immediately upon request of the City, as set forth in Article 52.
7. Any alterations, extensions of time, Additional Work, or any other changes may be made without securing consent of the Contractor’s surety or sureties.
B. Contract Price Change.
1. Process for Determining Adjustments in Contract Price. a. Owner Initiated Change. The Contractor must submit a complete cost proposal, including any change in the Contract Price or 38077.00180\29080232.10
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Contract Time, within seven (7) Days after receipt of a scope of a proposed change order initiated by the City, unless the City requests that proposals be submitted in less than seven (7) Days. b. Contractor Initiated Change. The Contractor must give written notice of a proposed change order required for compliance with the Contract Documents within seven (7) Days of discovery of the facts giving rise to the proposed change order.
c. Whenever possible, any changes to the Contract amount shall be in a lump sum mutually agreed to by the Contractor and the City. d. Price quotations from the Contractor shall be accompanied by sufficiently detailed supporting documentation to permit verification by the City, including but not limited to estimates and quotations from subcontractors or material suppliers, as the City may reasonably request. Contractor shall certify the accuracy of all Change Order Requests under penalty of perjury.
e. If the Contractor fails to submit a complete cost proposal within the seven (7) Day period (or as requested), the City has the right to order the Contractor in writing to commence the Work immediately on a time and materials basis and/or issue a lump sum change to the Contract Price and/or Contract Time in accordance with the City’s estimate. If the change is issued based on the City's estimate, the Contractor will waive its right to dispute the action unless within fifteen (15) Days following completion of the added/deleted work, the Contractor presents written proof that the City’s estimate was in error.
2. Unit Price Change Orders.
a. When the actual quantity of a Unit Price item is found to vary from the Bid Form, compensation for the change in quantity will be calculated by multiplying the actual quantity by the Unit Price.
This calculation may result in either an additive or deductive Final Change Order pursuant to the Contract Documents. Contractor shall immediately inform the Engineer when the actual quanities vary from estimated quantities.
b. No Mark up for Overhead and Profit. Because the Contract Unit Prices provided in the Bid Form include Overhead and Profit as determined by Contractor at the time of Bid submission, no mark up or deduction for Overhead and Profit will be included in Unit Price Change Orders.
c. Bid items included on the Bid Form may be deducted from the Work in their entirety without any negotiated extra costs. d. Contractor acknowledges that unit quantities are estimates and agrees that the estimated unit quantities listed on the Bid Form will 38077.00180\29080232.10
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be adjusted to reflect the actual unit quantities which may result in an adjustment to the Contract Unit Prices. Such an adjustment will be made by execution of a final additive or deductive Change Order following Contractor’s completion of the Work. Upon notification, Contractor’s failure to respond within seven (7) Days will result in City’s issuance of a unit quantity adjustment to the Contract Unit Prices and/or Contract Time in accordance with the Contract Documents.
3. Lump Sum Change Orders. Compensation for Lump Sum Change Orders shall be limited to expenditures necessitated specifically by the Additional Work, and shall be segregated as follows:
a. Labor. The costs of labor will be the actual cost for wages prevailing locally for each craft or type of worker at the time the Additional Work is done, plus employer payments of payroll taxes and insurance, health and welfare, pension, vacation,
apprenticeship funds, and other direct costs resulting from Federal, State or local laws, as well as assessment or benefits required by lawful collective bargaining agreements. The use of a labor classification which would increase the Additional Work cost will not be permitted unless the Contractor establishes the necessity for such new classifications. Labor costs for equipment operators and helpers shall be reported only when such costs are not included in the invoice for equipment rental.
b. Materials. The cost of materials reported shall be at invoice or lowest current price at which such materials are locally available in the quantities involved, plus sales tax, freight, and delivery.
Materials costs shall be based upon supplier or manufacturer’s invoice. If invoices or other satisfactory evidence of cost are not furnished within fifteen (15) Days of delivery, then the City shall determine the materials cost, at its sole discretion.
c. Tool and Equipment Use. Costs for the use of small tools, which are tools that have a replacement value of $1,000 or less, shall be considered included in the Overhead and Profit mark-ups established below. Regardless of ownership, the rates to be used in determining equipment use costs shall not exceed listed rates prevailing locally at equipment rental agencies, or distributors, at the time the Work is performed.
4. Time and Materials Change Orders.
a. General. The term Time and Materials means the sum of all costs reasonably and necessarily incurred and paid by Contractor for labor, materials, and equipment in the proper performance of Additional Work. Except as otherwise may be agreed to in writing by the City, such costs shall be in amounts no higher than those prevailing in the locality of the Project, and shall include only the following items.
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b. Timely and Final Documentation.
i. T&M Daily Sheets. Contractor must submit timesheets, materials invoices, records of equipment hours, and
records of rental equipment hours to the City’s
Representative for an approval signature each day
Additional Work is performed. Failure to get the City’s Representative’s approval signature each Day shall result in a waiver of Contractor’s right to claim these costs. The City’s Representative’s signature on time sheets only
serves as verification that the Work was performed and is not indicative of City’s agreement to Contractor’s
entitlement to the cost.
ii. T&M Daily Summary Sheets. All documentation of
incurred costs (“T&M Daily Summary Sheets”) shall be
submitted by Contractor within three (3) Days of incurring the cost for labor, material, equipment, and special
services as Additional Work is performed. Contractor’s
actual costs shall be presented in a summary table in an electronic spreadsheet file by labor, material, equipment, and special services. Each T&M Daily Summary Sheet
shall include Contractor’s actual costs incurred for the Additional Work performed that day and a cumulative total of Contractor’s actual costs incurred for the Additional Work. Contractor’s failure to provide a T&M Daily
Summary Sheet showing a total cost summary within three (3) Days but within five (5) Days of performance of the Work will result in the Contractor’s otherwise allowable overhead and profit being reduced by 50% for that portion of Additional Work which was not documented in a timely manner. Contractor’s failure to submit the T&M Daily
Summary Sheet within five (5) Days of performance of the Work will result in a total waiver of Contractor’s right to claim these costs.
iii. T&M Total Cost Summary Sheet. Contractor shall submit a T&M Total Cost Summary Sheet, which shall include
total actual costs, within seven (7) Days following
completion of City approved Additional Work. Contractor’s total actual cost shall be presented in a summary table in an electronic spreadsheet file by labor, material,
equipment, and special services. Contractor’s failure to submit the T&M Total Cost Summary Sheet within seven
(7) Days of completion of the Additional Work will result in Contractor’s waiver for any reimbursement of any costs
associated with the T&M Summary Sheets or the
performance of the Additional Work.
c. Labor. The Contractor will be paid the cost of labor for the workers used in the actual and direct performance of the Work. 38077.00180\29080232.10
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The cost of labor will be the sum of the actual wages paid (which shall include any employer payments to or on behalf of the workers for health and welfare, pension, vacation, and similar purposes) substantiated by timesheets and certified payroll for wages prevailing for each craft or type of workers performing the Additional Work at the time the Additional Work is done, and the labor surcharge set forth in the Department of Transportation publication entitled Labor Surcharge and Equipment Rental Rates, which is in effect on the date upon which the Work is
accomplished and which is a part of the Contract. The labor surcharge shall constitute full compensation for all payments imposed by Federal, State, or local laws and for all other payments made to, or on behalf of, the workers, other than actual wages.
i. Equipment Operator Exception. Labor costs for equipment operators and helpers shall be paid only when such costs are not included in the invoice for equipment rental.
ii. Foreman Exception. The labor costs for foremen shall be proportioned to all of their assigned work and only that applicable to the Additional Work shall be paid. Indirect labor costs, including, without limitation, the
superintendent, project manager, and other labor identified in the Contract Documents will be considered Overhead.
d. Materials. The cost of materials reported shall be itemized at invoice or lowest current price at which materials are locally available and delivered to the Project site in the quantities involved, plus the cost of sales tax, freight, delivery, and storage. i. Trade discounts available to the purchaser shall be
credited to the City notwithstanding the fact that such discounts may not have been taken by Contractor.
ii. For materials secured by other than a direct purchase and direct billing to the purchaser, the cost shall be deemed to be the price paid to the actual supplier as determined by the City’s Representative.
iii. Payment for materials from sources owned wholly or in part by the purchaser shall not exceed the price paid by the purchaser for similar materials from said sources on Additional Work items or the current wholesale price for such materials delivered to the Project site, whichever price is lower.
iv. If, in the opinion of the City’s Representative, the cost of materials is excessive, or Contractor does not furnish
satisfactory evidence of the cost of such materials, then the cost shall be deemed to be the lowest current
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wholesale price for the total quantity concerned delivered to the Project site less trade discounts.
v. The City reserves the right to furnish materials for the Additional Work and no Claim shall be allowed by
Contractor for costs of such materials or Indirect Costs or profit on City furnished materials.
e. Equipment.
i. Rental Time. The rental time to be paid for equipment on the Project site shall be the time the equipment is in
productive operation on the Additional Work being
performed and, in addition, shall include the time required to move the equipment to the location of the Additional Work and return it to the original location or to another location requiring no more time than that required to return it to its original location; except that moving time will not be paid if the equipment is used on other than the Additional Work, even though located at the site of the Additional Work.
(a) Rental Time Not Allowed. Rental time will not be
allowed while equipment is inoperative due to
breakdowns.
(b) Computation Method. The following shall be used
in computing the rental time of equipment on the
Project site.
(i) When hourly rates are paid, any part of an
hour less than 30 minutes of operation shall
be considered to be 1/2-hour of operation,
and any part of an hour in excess of 30
minutes will be considered one hour of
operation.
(ii) When daily rates are paid, any part of a day
less than 4 hours operation shall be
considered to be 1/2-day of operation, and
any part of an hour in excess of 4 hours will
be considered one day of operation.
ii. Rental Rates. Contractor will be paid for the use of equipment at the lesser of (i) the actual rental rate, or (ii) the rental rate listed for that equipment in the California Department of Transportation publication entitled Labor Surcharge and Equipment Rental Rates, which is in effect on the date upon which the Contract was executed. Such
rental rates will be used to compute payments for
equipment whether the equipment is under Contractor’s
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control through direct ownership, leasing, renting, or
another method of acquisition. The rental rate to be
applied for use of each item of equipment shall be the rate (i.e., daily, monthly) resulting in the least total cost to the City for the total period of use. If it is deemed necessary by Contractor to use equipment not listed in the
publication, an equitable rental rate for the equipment will be established by the City’s Representative. Contractor may furnish cost data which might assist the City’s
Representative in the establishment of the rental rate. iii. Contractor-Owned Equipment.
(a) For Contractor-owned equipment, the allowed
equipment rental rate will be limited to the monthly
equipment rental rate using a utilization rate of 173
hours per month.
(b) For Contractor-owned equipment, the rental time to
be paid for equipment on the Site shall be the time
the equipment is in productive operation, unless, in
the instance of standby time, the equipment could
be actively used by Contractor on another project,
then City shall pay for the entirety of the time the
equipment is on Site. It shall be Contractor’s
burden to demonstrate to the City that the
equipment could be actively used on another
project.
(i) All equipment shall, in the opinion of the
City’s Representative, be in good working
condition and suitable for the purpose for
which the equipment is to be used.
(ii) Before construction equipment is used on
the Additional Work, Contractor shall plainly
stencil or stamp an identifying number
thereon at a conspicuous location, and shall
furnish to the City’s Representative, in
duplicate, a description of the equipment
and its identifying number and the
scheduled Additional Work activities
planned.
(iii) Unless otherwise specified, manufacturer’s
rating and manufacturer approved
modifications shall be used to classify
equipment for the determination of
applicable rental rates. Equipment which
has no direct power unit shall be powered
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by a unit of at least the minimum rating
recommended by the manufacturer.
f. Special Services. Special work or services are defined as that Additional Work characterized by extraordinary complexity, sophistication, or innovation or a combination of the foregoing attributes which are unique to the construction industry. i. Invoices for Special Services. When the City’s
Representative and Contractor determine that a special
service is required which cannot be performed by the
forces of Contractor or those of any of its Subcontractors, the special service may be performed by an entity
especially skilled in the Additional Work. Invoices for special services based upon the current fair market value thereof may be accepted without complete itemization of labor, material, and equipment rental costs, after validation of market values by the City’s Representative.
ii. Discount and Allowance. All invoices for special services will be adjusted by deducting all trade discounts offered or available, whether the discounts were taken or not. In lieu of Overhead and Profit specified herein, a total allowance not to exceed fifteen percent (15%) for Overhead and
Profit will be added to invoices for Special Services.
iii. When the City determines, in its sole discretion, that competitive bidding is necessary for certain special
services, Contractor shall solicit competitive bids for those special services.
g. Excluded Costs. The term Time and Material shall not include any of the following costs or any other home or field office overhead costs, all of which are to be considered administrative costs covered by Contractor’s allowance for Overhead and Profit. i. Overhead Cost. Payroll costs and other compensation of Contractor’s officers, executives, principals, general
managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, timekeepers, clerks, and other personnel employed by
Contractor whether at the Site or in Contractor’s principal office or any branch office, material yard, or shop for general administration of the Additional Work;
ii. Office Expenses. Expenses of Contractor’s principal and branch offices;
iii. Capital Expenses. Any part of Contractor’s capital expenses, including interest on Contractor’s capital
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employed for the Additional Work and charges against
Contractor for delinquent payments;
iv. Negligence. Costs due to the negligence of Contractor or any Subcontractor or Supplier, or anyone directly or
indirectly employed by any of them or for whose acts any of them may be liable, including without limitation the correction of Defective Work, disposal of materials or
equipment wrongly supplied, and making good any
damage to property;
v. Other. Other overhead or general expense costs of any kind and the cost of any item not specifically and expressly included in the Contract Documents;
vi. Small Tools. Cost of small tools valued at less than $1,000 and that remain the property of Contractor;
vii. Administrative Costs. Costs associated with the
preparation of Change Orders (whether or not ultimately authorized), cost estimates, or the preparation or filing of Claims;
viii. Anticipated Lost Profits. Expenses of Contractor
associated with anticipated lost profits or lost revenues, lost income or earnings, lost interest on earnings, or
unpaid retention;
ix. Home Office Overhead. Costs derived from the
computation of a “home office overhead” rate by
application of the Eichleay, Allegheny, burden fluctuation, or other similar methods;
x. Special Consultants and Attorneys. Costs of special
consultants or attorneys, whether or not in the direct
employ of Contractor, employed for services specifically related to the resolution of a Claim, dispute, or other matter arising out of or relating to the performance of the
Additional Work.
h. Overhead, Profit and Other Charges. The mark-up for overhead (including supervision) and profit on work added to the Contract shall be according to the following:
i. “Net Cost” is defined as consisting of costs of labor, materials, and tools and equipment only excluding
overhead and profit. The costs of applicable insurance
and bond premium will be reimbursed to the Contractor
and subcontractors at cost only, without mark-up.
Contractor shall provide City with documentation of the costs, including, but not limited to, payroll records,
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invoices, and such other information as City may
reasonably request.
ii. For Work performed by the Contractor’s forces, the added cost for overhead and profit shall not exceed fifteen
percent (15%) of the Net Cost of the Work.
iii. For Work performed by a subcontractor, the added cost for overhead and profit shall not exceed fifteen percent (15%) of the subcontractor’s Net Cost of the Work to which the Contractor may add five percent (5%) of the
subcontractor’s Net Cost.
iv. For Work performed by a sub-subcontractor, the added cost for overhead and profit shall not exceed fifteen
percent (15%) of the sub-subcontractor’s Net Cost for
Work to which the subcontractor and general contractor
may each add an additional five percent (5%) of the Net Cost of the lower tier subcontractor.
v. No additional mark-up will be allowed for lower tier subcontractors, and in no case shall the added cost for overhead and profit payable by City exceed twenty-five
percent (25%) of the Net Cost as defined herein, of the party that performs the Work.
5. All of the following costs are included in the markups for overhead and profit described above, and Contractor shall not receive any additional compensation for: Submittals, drawings, field drawings, Shop Drawings, including submissions of drawings; field inspection; General Superintendence; General administration and preparation of cost proposals, schedule analysis, Change Orders, and other supporting documentation; computer services; reproduction services; Salaries of project engineer, superintendent, timekeeper, storekeeper, and secretaries; Janitorial services; Small tools, incidentals and consumables; Temporary On-Site facilities (Offices, Telephones, High Speed Internet Access, Plumbing, Electrical Power, Lighting; Platforms, Fencing, Water), Jobsite and Home office overhead or other expenses; vehicles and fuel used for work otherwise included in the Contract Documents; Surveying; Estimating; Protection of Work; Handling and disposal fees; Final Cleanup; Other Incidental Work; Related Warranties; insurance and bond premiums.
6. For added or deducted Work by subcontractors, the Contractor shall furnish to the City the subcontractor’s signed detailed record of the cost of labor, material and equipment, including the subcontractor markup for overhead and profit. The same requirement shall apply to subsubcontractors 38077.00180\29080232.10
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7. For added or deducted work furnished by a vendor or supplier, the Contractor shall furnish to the City a detailed record of the cost to the Contractor, signed by such vendor or supplier.
8. Any change in the Work involving both additions and deletions shall indicate a net total cost, including subcontracts and materials. Allowance for overhead and profit, as specified herein, shall be applied if the net total cost is an increase in the Contract Price; overhead and profit allowances shall not be applied if the net total cost is a deduction to the Contract Price. The estimated cost of deductions shall be based on labor and material prices on the date the Contract was executed.
9. Contractor shall not reserve a right to assert impact costs, extended job site costs, extended overhead, constructive acceleration and/or actual acceleration beyond what is stated in the Change Order for Work. No claims shall be allowed for impact, extended overhead costs, constructive acceleration and/or actual acceleration due to a multiplicity of changes and/or clarifications. The Contractor may not change or modify the City’s change order form in an attempt to reserve additional rights.
10. If the City disagrees with the proposal submitted by Contractor, it will notify the Contractor and the City will provide its opinion of the appropriate price and/or time extension. If the Contractor agrees with the City, a Change Order will be issued by the City. If no agreement can be reached, the City shall have the right to issue a unilateral Change Order setting forth its determination of the reasonable additions or savings in costs and time attributable to the extra or deleted work. Such determination shall become final and binding if the Contractor fails to submit a claim in writing to the City within fifteen (15) Days of the issuance of the unilateral Change Order, disputing the terms of the unilateral Change Order, and providing such supporting documentation for its position as the City may require.
C. Change of Contract Times.
1. The Contract Times may only be changed by a Change Order.
2. All changes in the Contract Price and/or adjustments to the Contract Times related to each change shall be included in Contractor’s COR pursuant to this Article. No cost or time will be allowed for cumulative effects of multiple changes. All Change Orders must state that the Contract Time is not changed or is either increased or decreased by a specific number of days. Failure to include a change to time shall waive any change to the time unless the parties mutually agree in writing to postpone a determination of the change to time resulting from the Change Order.
3. Notice of the amount of the request for adjustment in the Contract Times with supporting data shall be delivered within seven (7) Days after such start of occurrence, unless City’s Representative allows an additional period of time to ascertain more accurate data in support of the request. 38077.00180\29080232.10
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No extension of time or additional compensation shall be given for a delay if the Contractor failed to give notice in the manner and within the time prescribed.
4. City may elect, at City’s sole discretion, to grant an extension in Contract Times, without Contractor’s request, because of delays or other factors.
5. Use of Float and Critical Path.
a. Float is for the benefit of the Project. Float shall not be considered for the exclusive use or benefit of either the City or the Contractor. b. Contractor shall not be entitled to compensation, and City will not compensate Contractor, for delays which impact early completion.
Any difference in time between the Contractor’s early completion and the Contract Time shall be considered a part of the Project float.
6. Contractor’s entitlement to an extension of the Contract Times is limited to a City-caused extension of the critical path, reduced by the Contractor’s concurrent delays, and established by a proper time impact analysis. No time extension shall be allowed unless, and then only to the extent that, the City-caused delay extends the critical path beyond the previously approved Contract Time. If approved, the increase in time required to complete the Work shall be added to the Contract Time. a. Contractor shall not be entitled to an adjustment in the Contract Price or Contract Times for delays within the control of Contractor.
Delays attributable to and within the control of a Subcontractor or Supplier shall be deemed to be delays within the control of Contractor.
b. If Contractor is delayed in the performance or progress of the Work by fire, flood, epidemic, abnormal weather conditions (as determined by the City), Acts of God, acts or failures to act of utility owners not under the control of City, or other causes not the fault of and beyond control of City and Contractor, then Contractor shall be entitled to an time extension when the Work stopped is on the critical path. Such a non-compensable adjustment shall be Contractor’s sole and exclusive remedy for such delays.
Contractor must submit a timely request in accordance with the requirements of this Article.
c. Utility-Related Delays.
i. Contractor shall immediately notify in writing the utility owner and City’s Representative of its construction
schedule and any subsequent changes in the construction schedule which will affect the time available for protection, removal, or relocation of utilities. Requests for extensions 38077.00180\29080232.10
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of time arising out of utility relocation or repair delays shall be filed in accordance with this Article.
ii. Contractor shall not be entitled to damages or additional payment for delays attributable to utility relocations or alterations if correctly located, as noted in the Contract Documents or by the Underground Service Alert survey.
7. Content for Requests for Contract Extension. Contractor’s justification for entitlement shall be clear and complete citing specific Contract Document references and reasons on which Contractor’s entitlement is based. At a minimum, each request for a time extension must include:
a. Each request for an extension of Contract Time must identify the impacting event, in narrative form, providing a description of the delay event and sufficient justification as to why the Contractor is entitled to a time extension. Contractor must demonstrate that the delay arises from unforeseeable causes beyond the control and without the fault or negligence of both Contractor and any Subcontractors or Suppliers, or any other persons or
organizations employed by any of them or for whose acts any of them may be liable, and that such causes in fact lead to performance or completion of the Work, or specified part in question, beyond the corresponding Contract Times, despite Contractor’s reasonable and diligent actions to guard against those effects.
b. Each request for an extension of Contract Time must include a time impact analysis in CPM format, using the Contemporaneous Impacted As-Planned Schedule Analysis to calculate the impact of the delay event.
8. No Damages for Reasonable Delay.
a. City’s liability to Contractor for delays for which City is responsible shall be limited to only an extension of time unless such delays were unreasonable under the circumstances. In no case shall City be liable for any costs which are borne by the Contractor in the regular course of business, including, but not limited to, home office overhead and other ongoing costs.
b. City and City’s Representative, and the officers, members, partners, employees, agents, consultants, or subcontractors of each of them, shall not be liable to Contractor for any claims, costs, losses, or damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other
professionals and all court or arbitration or other dispute resolution costs) sustained by Contractor on or in connection with any other project or anticipated project.
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9. Contractor’s failure, neglect, or refusal to comply with the requirements of the Contract Documents, or any portion thereof, shall bar Contractor’s request for extensions of the Contract Times. Such failure, neglect, or refusal prejudices City’s and City’s Representative’s ability to recognize and mitigate delay, and such failure, neglect, or refusal prevent the timely analysis of requests for extensions of Contract Times, and whether such extensions may be warranted. Contractor hereby waives all rights to extensions of Contract Times due to delays or accelerations that result from or occur during periods of time for which Contractor fails, neglects, or refuses to fully comply with the requirements of this Article.
10. Contractors submission of daily construction reports and schedule updates in accordance with these Contract Documents is required for the evaluation of the merits of time extension request. Failure of the Contractor to submit daily construction reports and schedule updates shall constitute a waiver of its right to seek a time extension or additional compensation.
ARTICLE 43 FINAL ACCEPTANCE AND PAYMENT
A. Final Inspection. Upon written notice from Contractor that the entire Work is complete, the Engineer will promptly make a final inspection and will notify Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. Contractor shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies.
B. Final Acceptance. After Contractor has, in the opinion of the Engineer, satisfactorily completed all corrections identified during the final inspection and has delivered, in accordance with the Contract Documents, all maintenance and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurance, certificates of inspection, marked-up record documents (as-builts), and other documents required by the Contract Documents, the City shall execute and file with the County in which the Project is located a Notice of Completion, constituting final acceptance and completion of the Project, except as may be expressly noted.
C. Final Payment.
1. Application for Payment. Upon execution of the Notice of Completion, Contractor may make application for final payment following the procedure for progress payments. The final application for payment shall be accompanied (except as previously delivered) by: all documentation called for in the Contract Documents, including but not limited to a fully completed Conditional Waiver and Release on Final Payment
2. City’s Review of Application and Acceptance. If, on the basis of the City’s observation of the Work during construction and final inspection, and review of the final Application for Payment and accompanying documentation as required by the Contract Documents, the City is satisfied that the Work has been completed and Contractor has satisfied all other requirements for final payment, the City will process the final 38077.00180\29080232.10
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payment appllication. Otherwise, the City will return the payment application to Contractor, indicating in writing the reasons for refusing to recommend final payment, in which case Contractor shall make the necessary corrections and resubmit the application for payment.
3. Payment Becomes Due. Within sixty (60) Days after the presentation to the City of the proper and complete final application for payment and accompanying documentation, the amount recommended by the Engineer, less any sum the City is entitled to set off pursuant to the Contract Documents, will become due and will be paid by the City to Contractor.
D. Waiver of Claims. The making and acceptance of final payment will constitute a waiver of all Claims by Contractor against the City other than those previously made in accordance with the requirements herein and expressly acknowledged by the City in writing as still unsettled.
ARTICLE 44 OCCUPANCY
The City reserves the right to occupy or utilize any portion of the Work at any time before completion, and such occupancy or use shall not constitute acceptance of any part of Work covered by this Contract.This use shall not relieve the Contractor of its responsibilities under the Contract.
ARTICLE 45 INDEMNIFICATION
To the fullest extent permitted by law, Contractor shall immediately defend (with counsel of the City’s choosing), indemnify and hold harmless the City, officials, officers, agents, employees, and representatives, and each of them from and against:
A. Any and all claims, demands, causes of action, costs, expenses, injuries, losses or liabilities, in law or in equity, of every kind or nature whatsoever, but not limited to, injury to or death, including wrongful death, of any person, and damages to or destruction of property of any person, arising out of, related to, or in any manner directly or indirectly connected with the Work or this Contract, including claims made by subcontractors for nonpayment, including without limitation the payment of all consequential damages and attorney’s fees and other related costs and expenses, however caused, regardless of whether the allegations are false, fraudulent, or groundless, and regardless of any negligence of the City or its officers, employees, or authorized volunteers (including passive negligence), except the sole negligence or willful misconduct or active negligence of the City or its officials, officers, employees, or authorized volunteers.
B. Contractor’s defense and indemnity obligation herein includes, but is not limited to damages, fines, penalties, attorney’s fees and costs arising from claims under the Americans with Disabilities Act (ADA) or other federal or state disability access or discrimination laws arising from Contractor’s Work during the course of construction of the improvements or after the Work is complete, as the result of defects or negligence in Contractor’s construction of the improvements. 38077.00180\29080232.10
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C. Any and all actions, proceedings, damages, costs, expenses, fines, penalties or liabilities, in law or equity, of every kind or nature whatsoever, arising out of, resulting from, or on account of the violation of any governmental law or regulation, compliance with which is the responsibility of Contractor; D. Any and all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense which any of them may incur with respect to the failure, neglect, or refusal of Contractor to faithfully perform the Work and all of Contractor’s obligations under the agreement. Such costs, expenses, and damages shall include all costs, including attorney’s fees, incurred by the indemnified parties in any lawsuit to which they are a party.
Contractor shall immediately defend, at Contractor’s own cost, expense and risk, with the City Council’s choosing, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its officials, officers, agents, employees and representatives. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against the City, its officials, officers, employees, agents, employees and representatives, in any such suit, action or other legal proceeding. Contractor shall reimburse the City, its officials, officers, agents, employees and representatives for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. The only limitations on this provision shall be those imposed by Civil Code section 2782.
ARTICLE 46 PROCEDURE FOR RESOLVING DISPUTES
Contractor shall timely comply with all notices and requests for changes to the Contract Time or Contract Price, including but not limited to all requirements of Article 42, Changes and Extra Work, as a prerequisite to filing any claim governed by this Article. The failure to timely submit a notice of delay or notice of change, or to timely request a change to the Contract Price or Contract Time, or to timely provide any other notice or request required herein shall constitute a waiver of the right to further pursue the claim under the Contract or at law.
A. Intent. Effective January 1, 1991, 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. Effective January 1, 2017, Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims. The intent of this Article is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code.
This Article shall be construed to be consistent with said statutes.
B. Claims. For purposes of this Article, “Claim” means a separate demand by the Contractor, after a change order duly requested in accordance with Article 42 “Changes and Extra Work” has been denied by the City, for (A) a time extension, (B) payment of money or damages arising from Work done by or on behalf of the Contractor pursuant to the Contract, or (C) an amount the payment of which is disputed by the City. Claims governed by this Article may not be filed unless and until the Contractor completes all procedures for giving notice of delay or change and for the requesting of a time extension or change order, including but not necessarily limited to the procedures contained in Article 42, Changes and Extra Work, and Contractor’s request for a change has been denied in whole or in part. Claims 38077.00180\29080232.10
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governed by this Article must be filed no later than the date of final payment. The claim shall be submitted in writing to the City and shall include on its first page the following in 16 point capital font: “THIS IS A CLAIM.” Furthermore, the claim shall include the documents necessary to substantiate the claim. Nothing herein is intended to extend the time limit or supersede notice requirements otherwise provided by contract 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.
C. Supporting Documentation. The Contractor shall submit all claims in the following format:
1. Summary of claim merit and price, reference Contract Document provisions pursuant to which the claim is made
2. List of documents relating to claim:
Specifications
Drawings
Clarifications (Requests for Information)
Schedules
Other
3. Chronology of events and correspondence
4. Analysis of claim merit
5. Analysis of claim cost
6. Time Impact Analysis in CPM format
D. City’s Response. Upon receipt of a claim pursuant to this Article, 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.
1. If the City needs approval from its governing body to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the claim, and the City’s governing body 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’s governing body after the 45-Day period, or extension, expires to provide the 38077.00180\29080232.10
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Contractor a written statement identifying the disputed portion and the undisputed portion.
2. 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. 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 $15,000, 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 in writing 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 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.
1. 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.
2. For purposes of this section, mediation includes any nonbinding process, 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.
3. 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.
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4. The mediation shall be held no earlier than the date the Contractor completes the Work or the date that the Contractor last performs Work, whichever is earlier. All unresolved claims shall be considered jointly in a single mediation, unless a new unrelated claim arises after mediation is completed.
G. Procedures After Mediation. If following the mediation, the claim or any portion remains in dispute, the Contractor must file a claim pursuant to Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code prior to initiating litigation.
For purposes of those provisions, 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 pursuant to subdivision (a) until the time the claim is denied, including any period of time utilized by the meet and confer conference.
H. Civil Actions. The following procedures are established for all civil actions filed to resolve claims of $375,000 or less:
1. 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 terms of this Contract. 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.
2. 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 1114.11 of that code. The Civil Discovery Act of 1986 (Article 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. In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced in construction law, and (B) any party appealing an arbitration award who does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, also pay the attorney’s fees on appeal of the other party.
I. Government Code Claims. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra Work, disputed Work, construction claims and/or changed conditions, the Contractor must comply with the claim procedures set forth in Government Code Sections 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 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 the Work is 38077.00180\29080232.10
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completed or the date the Contractor last performs Work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved claims unless a new unrelated claim arises after the Government Code claim is submitted.
J. Non-Waiver. The City’s failure to respond to a claim from the Contractor within the time periods described in this Article or to otherwise meet the time requirements of this Article shall result in the claim being deemed rejected in its entirety.
ARTICLE 47 CITY’S RIGHT TO TERMINATE CONTRACT
A. Termination for Cause by the City:
1. In the sole estimation of the City, if the Contractor refuses or fails to prosecute the Work or any separable part thereof with such diligence as will insure its completion within the time specified by the Contract Documents, or any extension thereof, or fails to complete such Work within such time, or if the Contractor should be adjudged a bankrupt, or if it should make a general assignment for the benefit of its creditors, or if a receiver should be appointed on account of its insolvency, or the Contractor or any of its subcontractors should violate any of the provisions of this Contract, the City may serve written notice upon the Contractor and its Surety of the City's intention to terminate this Contract.
This notice of intent to terminate shall contain the reasons for such intention to terminate this Contract, and a statement to the effect that the Contractor's right to perform this Contract shall cease and terminate upon the expiration of ten (10) calendar days unless such violations have ceased and arrangements satisfactory to the City have been made for correction of said violations.
2. In the event that the City serves such written notice of termination upon the Contractor and the Surety, the Surety shall have the right to take over and perform the Contract. If the Surety does not: (1) give the City written notice of Surety's intention to take over and commence performance of the Contract within 15 calendar days of the City's service of said notice of intent to terminate upon Surety; and (2) actually commence performance of the Contract within 30 calendar days of the City's service of said notice upon Surety; then the City may take over the Work and prosecute the same to completion by separate contract or by any other method it may deem advisable for the account and at the expense of the Contractor.
3. In the event that the City elects to obtain an alternative performance of the Contract as specified above: (1) the City may, without liability for so doing, take possession of and utilize in completion of the Work such materials, appliances, plants and other property belonging to the Contractor that are on the site and reasonably necessary for such completion (A special lien to secure the claims of the City in the event of such suspension is hereby created against any property of Contractor taken into the possession of the City under the terms hereof and such lien may be enforced by sale of such property under the direction of the City Council without notice to Contractor. The proceeds of the sale after 38077.00180\29080232.10
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deducting all expenses thereof and connected therewith shall be credited to Contractor. If the net credits shall be in excess of the claims of the City against Contractor, the balance will be paid to Contractor or Contractor’s legal representatives.); and (2) Surety shall be liable to the City for any cost or other damage to the City necessitated by the City securing an alternate performance pursuant to this Article.
B. Termination for Convenience by the City:
1. The City may terminate performance of the Work called for by the Contract Documents in whole or, from time to time, in part, if the City determines that a termination is in the City's interest.
2. The Contractor shall terminate all or any part of the Work upon delivery to the Contractor of a Notice of Termination specifying that the termination is for the convenience of the City, the extent of termination, and the Effective Date of such termination.
3. After receipt of Notice of Termination, and except as directed by the City's Representative, the Contractor shall, regardless of any delay in determining or adjusting any amounts due under this Termination for Convenience clause, immediately proceed with the following obligations:
a. Stop Work as specified in the Notice.
b. Complete any Work specified in the Notice of Termination in a least cost/shortest time manner while still maintaining the quality called for under the Contract Documents.
c. Leave the property upon which the Contractor was working and upon which the facility (or facilities) forming the basis of the Contract Document is situated in a safe and sanitary manner such that it does not pose any threat to the public health or safety. d. Terminate all subcontracts to the extent that they relate to the portions of the Work terminated.
e. Place no further subcontracts or orders, except as necessary to complete the continued portion of the Contract.
f. Submit to the City's Representative, within ten (10) calendar days from the Effective Date of the Notice of Termination, all of the usual documentation called for by the Contract Documents to substantiate all costs incurred by the Contractor for labor, materials and equipment through the Effective Date of the Notice of Termination. Any documentation substantiating costs incurred by the Contractor solely as a result of the City's exercise of its right to terminate this Contract pursuant to this clause, which costs the contractor is authorized under the Contract documents to incur, shall: (1) be submitted to and received by the Engineer no later than 30 calendar days after the Effective Date of the Notice 38077.00180\29080232.10
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of Termination; (2) describe the costs incurred with particularity; and (3) be conspicuously identified as “Termination Costs occasioned by the City's Termination for Convenience.”
4. Termination of the Contract shall not relieve Surety of its obligation for any just claims arising out of or relating to the Work performed.
5. In the event that the City exercises its right to terminate this Contract pursuant to this clause, the City shall pay the Contractor, upon the Contractor's submission of the documentation required by this clause and other applicable provisions of the Contract Documents, the following amounts:
a. All actual reimbursable costs incurred according to the provisions of this Contract.
b. A reasonable allowance for profit on the cost of the Work performed, provided Contractor establishes to the satisfaction of the City's Representative that it is reasonably probable that Contractor would have made a profit had the Contract been completed and provided further, that the profit allowed shall in no event exceed fifteen (15%) percent of the costs.
c. A reasonable allowance for Contractor's administrative costs in determining the amount payable due to termination of the Contract under this Article.
C. Notwithstanding any other provision of this Article, when immediate action is necessary to protect life and safety or to reduce significant exposure or liability, the City may immediately order Contractor to cease Work on the Project until such safety or liability issues are addressed to the satisfaction of the City or the Contract is terminated.
ARTICLE 48 WARRANTY AND GUARANTEE OF WORK
A. Contractor hereby warrants that materials and Work shall be completed in conformance with the Contract Documents and that the materials and Work provided will fulfill the requirements of this Warranty. Contractor hereby agrees to repair or replace, at the discretion of the City, any or all Work that may prove to be defective in its workmanship, materials furnished, methods of installation or fail to conform to the Contract Document requirements together with any other Work which may be damaged or displaced by such defect(s) within a period of one (1) year from the date of the Notice of Completion of the Project without any expense whatever to the City, ordinary wear and tear and unusual abuse and neglect excepted. Contractor shall be required to promptly repair or replace defective equipment or materials, at Contractor’s option. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor.
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B. For any Work so corrected, Contractor’s obligation hereunder to correct defective Work shall be reinstated for an additional one (1) year period, commencing with the date of acceptance of such corrected Work. The reinstatement of the one (1) year warranty shall apply only to that portion of work that was corrected.
Contractor shall perform such tests as City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. In the event of Contractor’s failure to comply with the above-mentioned conditions within ten (10) calendar days after being notified in writing of required repairs, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming Work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense.
Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder immediately upon demand.
C. In addition to the warranty set forth in this Article, Contractor shall obtain for City all warranties that would be given in normal commercial practice and assign to City any and all manufacturer’s or installer’s warranties for equipment or materials not manufactured by Contractor and provided as part of the Work, to the extent that such third-party warranties are assignable and extend beyond the warranty period set forth in this Article. Contractor shall furnish the City with all warranty and guarantee documents prior to final Acceptance of the Project by the City as required.
D. When specifically indicated in the Contract Documents or when directed by the Engineer, the City may furnish materials or products to the Contractor for installation. In the event any act or failure to act by Contractor shall cause a warranty applicable to any materials or products purchased by the City for installation by the Contractor to be voided or reduced, Contractor shall indemnify City from and against any cost, expense, or other liability arising therefrom, and shall be responsible to the City for the cost of any repairs, replacement or other costs that would have been covered by the warranty but for such act or failure to act by Contractor.
E. The Contractor shall remedy at its expense any damage to City-owned or controlled real or personal property.
F. The City shall notify the Contractor, in writing, within a reasonable time after the discovery of any failure, defect, or damage. The Contractor shall within ten (10) calendar days after being notified commence and perform with due diligence all necessary Work. If the Contractor fails to promptly remedy any defect, or damage; the City shall have the right to replace, repair or otherwise remedy the defect, or damage at the Contractor’s expense.
G. In the event of any emergency constituting an immediate hazard to health, safety, property, or licensees, when caused by Work of the Contractor not in accordance with the Contract requirements, the City may undertake at Contractor’s expense, and without prior notice, all Work necessary to correct such condition.
H. Acceptance of Defective Work.
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1. If, instead of requiring correction or removal and replacement of Defective Work, the City prefers to accept it, City may do so. Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) attributable to City’s evaluation of and determination to accept such Defective Work and for the diminished value of the Work.
2. If any acceptance of defective work occurs prior to release of the Project Retention, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and City shall be entitled to an appropriate decrease in the Contract Price, reflecting the diminished value of Work and all costs incurred by City.
3. If the Project Retention is held in an escrow account as permitted by the Contract Documents, Contractor will promptly alert the escrow holder, in writing, of the amount of Retention to be paid to City.
4. If the acceptance of Defective Work occurs after release of the Project Retention, an appropriate amount will be paid by Contractor to City.
I. City May Correct Defective Work.
1. If Contractor fails within a reasonable time after written notice from City’s Representative to correct Defective Work, or to remove and replace rejected Work as required by City, or if Contractor fails to perform the Work in accordance with the Contract Documents, or if Contractor fails to comply with any other provision of the Contract Documents, City may, after seven (7) Days’ written notice to Contractor, correct, or remedy any such deficiency.
2. In connection with such corrective or remedial action, City may exclude Contractor from all or part of the Site, take possession of all or part of the Work and suspend Contractor’s services related thereto, take possession of Contractor’s tools, appliances, construction equipment and machinery at the Site, and incorporate in the Work all materials and equipment stored at the Site or for which City has paid Contractor but which are stored elsewhere. Contractor shall allow City and City’s Representative, and the agents, employees, other contractors, and consultants of each of them, access to the Site to enable City to exercise the rights and remedies to correct the Defective Work.
3. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred or sustained by City correcting the Defective Work will be charged against Contractor, and a Change Order will be issued incorporating the necessary revisions into the Contract Documents with respect to the Work; and City shall be entitled to an appropriate decrease in the Contract Price.
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4. Such claims, costs, losses and damages will include, but not be limited to, all costs of repair, or replacement of work of others destroyed or damaged by correction, removal, or replacement of Defective Work.
5. If the Change Order is executed after all payments under the Contract have been paid by City and the Project Retention is held in an escrow account as permitted by the Contract Documents, Contractor will promptly alert the escrow holder, in writing, of the amount of Retention to be paid to City.
6. If the Change Order is executed after release of the Project Retention, an appropriate amount will be paid by Contractor to City.
7. Contractor shall not be allowed an extension of the Contract Times because of any delay in the performance of the Work attributable to City correcting Defective work.
J. Nothing in the Warranty or in the Contract Documents shall be construed to limit the rights and remedies available to City at law or in equity, including, but not limited to, Code of Civil Procedure section 337.15.
ARTICLE 49 DOCUMENT RETENTION & EXAMINATION
A. In accordance with Government Code section 8546.7, records of both the City and the Contractor shall be subject to examination and audit by the State Auditor General for a period of three (3) years after final payment.
B. Contractor shall make available to the City any of the Contractor’s other documents related to the Project immediately upon request of the City.
C. In addition to the State Auditor rights above, the City shall have the right to examine and audit all books, estimates, records, contracts, documents, bid documents, subcontracts, and other data of the Contractor (including computations and projections) related to negotiating, pricing, or performing the modification in order to evaluate the accuracy and completeness of the cost or pricing data at no additional cost to the City, for a period of four (4) years after final payment.
ARTICLE 50 SEPARATE CONTRACTS
A. The City reserves the right to let other contracts in connection with this Work or on the Project site. Contractor shall permit other contractors reasonable access and storage of their materials and execution of their work and shall properly connect and coordinate its Work with theirs.
B. To ensure proper execution of its subsequent Work, Contractor shall immediately inspect work already in place and shall at once report to the Engineer any problems with the Work in place or discrepancies with the Contract Documents.
C. Contractor shall ascertain to its own satisfaction the scope of the Project and nature of any other contracts that have been or may be awarded by the City in 38077.00180\29080232.10
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prosecution of the Project to the end that Contractor may perform this Contract in the light of such other contracts, if any. Nothing herein contained shall be interpreted as granting to Contractor exclusive occupancy at site of the Project.
Contractor shall not cause any unnecessary hindrance or delay to any other contractor working on the Project. If simultaneous execution of any contract for the Project is likely to cause interference with performance of some other contract or contracts, the Engineer shall decide which Contractor shall cease Work temporarily and which contractor shall continue or whether work can be coordinated so that contractors may proceed simultaneously. The City shall not be responsible for any damages suffered or for extra costs incurred by Contractor resulting directly or indirectly from award, performance, or attempted performance of any other contract or contracts on the Project site.
ARTICLE 51 NOTICE AND SERVICE THEREOF
All notices shall be in writing and either served by personal delivery or mailed to the other party as designated in the Bid Forms. Written notice to the Contractor shall be addressed to Contractor’s principal place of business unless Contractor designates another address in writing for service of notice. Notice to City shall be addressed to the City as designated in the Notice Inviting Bids unless City designates another address in writing for service of notice. Notice shall be effective upon receipt or five (5) calendar days after being sent by first class mail, whichever is earlier. Notice given by facsimile shall not be effective unless acknowledged in writing by the receiving party.
ARTICLE 52 NOTICE OF THIRD PARTY CLAIMS
Pursuant to Public Contract Code section 9201, the City shall provide the Contractor with timely notification of the receipt of any third-party claims relating to the Contract. The City is entitled to recover reasonable costs incurred in providing such notification.
ARTICLE 53 STATE LICENSE BOARD NOTICE
Contractors are required by law to be licensed and regulated by the Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O. Box 26000, Sacramento, California 95826.
ARTICLE 54 INTEGRATION
A. Oral Modifications Ineffective. No oral order, objection, direction, claim or notice by any party or person shall affect or modify any of the terms or obligations contained in the Contract Documents.
B. Contract Documents Represent Entire Contract.The Contract Documents represent the entire agreement of the City and Contractor. 38077.00180\29080232.10
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ARTICLE 55 ASSIGNMENT OF CONTRACT
Contractor shall not assign, transfer, convey, sublet or otherwise dispose of the rights or title of interest of any or all of this contract without the prior written consent of the City. Any assignment or change of Contractor’s name of legal entity without the written consent of the City shall be void. Any assignment of money due or to become due under this Contract shall be subject to a prior lien for services rendered or Material supplied for performance of Work called for under the Contract Documents in favor of all persons, firms, or corporations rendering such services or supplying such Materials to the extent that claims are filed pursuant to the Civil Code, the Code of Civil Procedure or the Government Code.
ARTICLE 56 CHANGE IN NAME AND NATURE OF CONTRACTOR’S LEGAL ENTITY
Should a change be contemplated in the name or nature of the Contractor’s legal entity, the Contractor shall first notify the City in order that proper steps may be taken to have the change reflected on the Contract and all related documents. No change of Contractor’s name or nature will affect City’s rights under the Contract, including but not limited to the bonds.
ARTICLE 57 ASSIGNMENT OF ANTITRUST ACTIONS
Pursuant to Public Contract Code section 7103.5, in entering into a public works contract or subcontract to supply goods, services, or materials pursuant to a public works contract, Contractor or subcontractor 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 USC, Section 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 the purchase of goods, services, or materials pursuant to this contract or any subcontract. 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 58 PROHIBITED INTERESTS
No City official or representative who is authorized in such capacity and on behalf of the City to negotiate, supervise, make, accept, or approve, or to take part in negotiating, supervising, making, accepting or approving any engineering, inspection, construction or material supply contract or any subcontract in connection with construction of the project, shall be or become directly or indirectly interested financially in the Contract.
ARTICLE 59 CONTROLLING LAW
Notwithstanding any subcontract or other contract with any subcontractor, supplier, or other person or organization performing any part of the Work, this Contract shall be governed by the law of the State of California excluding any choice of law provisions.
ARTICLE 60 JURISDICTION; VENUE
Contractor and any subcontractor, supplier, or other person or organization performing any part of the Work agrees that any action or suits at law or in equity arising out of or related to the bidding, award, or performance of the Work shall be maintained in the Superior Court of Santa 38077.00180\29080232.10
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Clara County, California, and expressly consent to the jurisdiction of said court, regardless of residence or domicile, and agree that said court shall be a proper venue for any such action.
ARTICLE 61 LAWS AND REGULATIONS
A. Contractor shall give all notices and comply with all laws, ordinances, rules and regulations bearing on conduct of work as indicated and specified. If Contractor observes that drawings and specifications are at variance therewith, it shall promptly notify the Engineer in writing and any necessary changes shall be adjusted as provided for in this Contract for changes in work. If Contractor performs any work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to the Engineer, it shall bear all costs arising therefrom.
B. Contractor shall be responsible for familiarity with the Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12101 et seq.). The Work will be performed in compliance with ADA regulations.
ARTICLE 62 PATENTS
Contractor shall hold and save the City, officials, officers, employees, and authorized volunteers harmless from liability of any nature or kind of claim therefrom including costs and expenses for or on account of any patented or unpatented invention, article or appliance manufactured, furnished or used by Contractor in the performance of this contract.
ARTICLE 63 OWNERSHIP OF CONTRACT DOCUMENTS
All Contract Documents furnished by the City are City property. They are not to be used by Contractor or any subcontractor on other work nor shall Contractor claim any right to such documents. With exception of one complete set of Contract Documents, all documents shall be returned to the City on request at completion of the Work.
ARTICLE 64 NOTICE OF TAXABLE POSSESSORY INTEREST
In accordance with Revenue and Taxation Code section 107.6, the Contract Documents may create a possessory interest subject to personal property taxation for which Contractor will be responsible.
ARTICLE 65 SURVIVAL OF OBLIGATIONS
All reresentations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion, and acceptance of the Work or termination or completion of the Contract or termination of the services of Contractor.
ARTICLE 66 SLFRF CONTRACT PROVISIONS
Funds from the Coronavirus State and Local Fiscal Recovery Fund (“SLFRF”) will be used to fund all or a portion of this contract. The Contractor shall comply with all federal requirements including, but not limited to, the following:
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1. Sections 602 and 603 fo the Social Security Act as added by Section 9901 of the American Rescue Plan Act of 2021, U.S. Department of the Treasury Coronarivrus State and Local Fiscal Recovery Fund Award Terms and Conditions, Treasury’s Interim Final Rule, and SLFRF reporting requirements, as appilcable (collectively, the “SLFRF Compliance Requirements”). The SLFRF Compliance Requirements are expressly incorporated herein by reference.
2. 2 C.F.R. Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which is expressly incorporated herein by reference.
3. SLFRF Federal Contract Provisions attached hereto as Exhibit D and incorporated herein by reference.
Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in the contract, including but not limited to, SLFRF Compliance Requirements, 2 C.F.R. Part 200, and the SLFRF Federal Contract Provisions.
With respect to any conflict between such federal requirements and the terms herein and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control.
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00 73 13 – SPECIAL CONDITIONS
1.1 Engineer of Record.
A For purposes of this Project, the Engineer of Record or Engineer shall be:
[To Be Determined].
1.2 Location of the Project.
A The Project is located at various locations identified in Exhibit C.
B The general location of the Project is shown in Exhibit C.
1.3 Status of the Project Area and Rights-of-Way.
A City, at its expense, will provide all rights-of-way or permits, or both, covering the crossing of private property and public and private rights-of-way necessary for the permanent Work; provided, however, Contractor shall, at its expense, obtain any bonds or insurance policies or pay any fees and enter into any agreements required by a controlling authority, e.g., Caltrans or Southern Pacific Railroad Company, before Contractor enters upon any property or right-of-way under the jurisdiction of any such controlling authority for the purpose of performing Work.
B City has acquired or is negotiating to acquire any rights-of-way, or both, necessary for the permanent Work.
C If such permits are required, all operations of Contractor shall conform to the restrictions, regulations, and requirements set forth in said permits, copies of which will be included in the Contract Documents.
D Contractor may be required, as a condition for receiving final payment, to obtain, and provide City’s Representative with copies of, executed damage releases from the owners of public and private property whose property has been damaged by the Work. The damage releases will be on a form provided by City.
E Contractor shall, also, as a condition for receiving final payment, obtain, and provide City’s Representative with copies of, executed damage releases from the owners of certain public and private property or areas which have been crossed by the Work or otherwise affected by the Work. The damage releases will be on a form provided by City.
1.4 Site Data.
A The data provided herein is for the information of Contractor and is subject to all limitations and conditions set forth in the Contract Documents.
B Subsurface Exploration Data. The following data are included in the Project Manual:
1. [Not applicable to this project]
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C Other Site Data. The following data are available for inspection at City’s office:
1. [Not applicable to this project]
Copies of these reports, drawings and other materials may be examined at City’s office during regular business hours.
1.5 Pre-Purchased or Pre-Negotiated Material.
[NOT USED.]
1.6 Designation of City’s Representative.
A Unless otherwise modified by City, City’s Representative shall be Joseph Aguilera, Public Works Manager.
1.7 Project Retention
In accordance with Public Contract Code § 7201, City will withhold 5% of each progress payment as retention on the Project.
1.8 Liquidated Damages Due to Contractor Delay.
A Time is of the essence. Should Contractor fail to complete all or any part of the Work within the time specified in the Contract Documents, City will suffer damage, the amount of which is difficult, if not impossible, to ascertain and, pursuant to the authority of Government Code section 53069.85, City shall therefore be entitled to Five Hundred Dollars and Zero Cents ($500.00) per Day as liquidated damages for each Day or part thereof that actual completion extends beyond the time specified.
B Liquidated damages may be deducted from progress payments due to Contractor, Project retention or may be collected directly from Contractor, or from Contractor's surety. These provisions for liquidated damages shall not prevent City, in case of Contractor's default, from terminating the Contractor.
1.9 Utility Outages – Notices to Residents.
A Should Contractor’s operations require interruption of any utility service, Contractor shall notify City at least ten (10) Days prior to the scheduled outage.
Contractor will notify all impacted residents on a form provided by City at least seven (7) Days prior to the scheduled outage.
B Contractor shall be responsible for providing, at its cost, any temporary utility or facilities necessitated by the utility outage.
1.10 Schedule Constraints.
NOT USED.
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A City has considered these Schedule Constraints when determining the Contract Times and no additional time or compensation will be added to the Contract due to these Constraints.
1.11 Safety Programs.
[NOT USED.
1.12 Coordination with Other Contractors.
NOT USED.
END OF SPECIAL CONDITIONS
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01 00 00 – GENERAL REQUIREMENTS
PART 1 GENERAL
1.1 DESCRIPTION
A. Safety rehabilitation of City’s play structures and safety surfaces at elevent City parks identified in this solicitation.
1.2 RELATED REQUIREMENTS SPECIFIED ELSEWHERE
A. Attachment A – 23-035 Scope of Work, Plans, and Specifications PART 2 (NOT USED)
PART 3 EXECUTION
3.1 LAYOUT OF WORK AND QUANTITY SURVEYS
A. General. The Contractor shall utilize a properly licensed surveyor to perform all layout surveys required for the control and completion of the Work, and all necessary surveys to compute quantities of Work performed.
City and/or the Engineer of Record has established primary control to be used by the Contractor for establishing lines and grades required for the Work.
Primary control consists of benchmarks and horizontal control points in the vicinity of the Work.A listing and identification of the primary control is provided on the Drawings. Before beginning any layout work or construction activity, the Contractor shall check and verify primary control, and shall advise the City Representative of any discrepancies.
B. Quantity surveys. The Contractor shall perform such surveys and computations as are necessary to determine quantities of Work performed or placed during each progress payment period, and shall perform all surveys necessary for the City Representative to determine final quantities of Work in place.The City Representative will determine final quantities based upon the survey data provided by the Contractor, and the design lines and grades.If requested by the City Representative, the Contractor shall provide an electronic copy of data used for quantity computations.
All surveys performed for measurement of final quantities of Work and material shall be subject to approval of City’s Representative. Unless waived by City’s Representative in each specific case, quantity surveys made by the Contractor shall be made in the presence of City’s Representative.
C. Surveying
1. Accuracy. Degree of accuracy shall be an order high enough to satisfy tolerances specified for the Work and the following:
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(a) Right-of-way and alignment of tangents and curves shall be within
0.1 foot.
(b) Structure points shall be set within 0.01 foot, except where operational function of the special features or installation of metalwork and equipment require closer tolerances. When formwork has been placed and is ready for concrete, the Contractor shall check the formwork for conformance with the drawings and to ensure that the forms are sufficiently within the tolerance limits for the completed work.
(c) Cross-section points shall be located within 0.1 foot, horizontally and vertically.
(d) Aerial Mapping shall meet National Mapping Standards for 2- foot contour intervals.
D. Records. Survey data shall be recorded in accordance with recognized professional surveying standards. Original field notes, computations, and other surveying data shall be recorded on electronic data collectors or in standard field books and must be of sufficient quality to enable the Contractor to prepare accurate record drawings as required by the Contract Documents.
E. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required for surveys for the layout of work and quantity surveys shall be included in the Schedule of Pay Items for items of work requiring the surveys. No additional compensation shall be made to the Contractor for this Work.
3.2 SCHEDULE
A. Estimated Schedule. Within 21 Days after the issuance of the Notice of Award, Contractor shall prepare a Project schedule and shall submit this to the Engineer for Approval. The receipt or Approval of any schedules by the Engineer or the City shall not in any way relieve the Contractor of its obligations under the Contract Documents. The Contractor is fully responsible to determine and provide for any and all staffing and resources at levels which allow for good quality and timely completion of the Project. Contractor’s failure to incorporate all elements of Work required for the performance of the Contract or any inaccuracy in the schedule shall not excuse the Contractor from performing all Work required for a completed Project within the specified Contract time period. If the required schedule is not received by the time the first payment under the Contract is due, Contractor shall not be paid until the schedule is received, reviewed and accepted by the Engineer.
B. Schedule Contents. The schedule shall indicate the beginning and completion dates of all phases of construction; critical path for all critical, sequential time related activities; and “float time” for all “slack” or “gaps” in the non-critical activities. The schedule shall clearly identify all staffing and other resources which in the Contractor’s judgment are needed to complete the Project within the 38077.00180\29080232.10
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time specified for completion. The overall Project Schedule duration shall be within the Contract time.
C. Weather Allowance. The schedule shall allow adequate time for inclement weather.
D. Schedule Updates. Contractor shall continuously update its construction schedule. Contractor shall submit an updated and accurate construction schedule to the Engineer monthly when requested to do so by Engineer.
Contractor shall also submit schedules showing a three week detailed lookahead at bi-weekly meetings conducted with the City. The Engineer may withhold progress payments or other amounts due under the Contract Documents if Contractor fails to submit an updated and accurate construction schedule.
3.3 TEMPORARY FIELD OFFICE
NOT USED.
3.4 PROTECTION OF WORK AND PROPERTY
A. All traffic detector loops, fences, walls, culverts, monuments, or other obstructions (except property line monuments within five (5) feet of the centerline of the mains) which are removed, damaged, or destroyed in the course of the Work, shall be replaced or repaired to the original condition at no additional cost to City. Contractor shall be responsible for the cost to repair, replace, relocate, and replacement of utilities whether or not those obstructions have been shown on the Plans, unless otherwise stated herein. It is then the Contractor’s responsibility to employ at its expense a Licensed Land Surveyor to restore all property line monuments located more than five (5) feet from the centerline of the mains, which are destroyed or obliterated. Property line monuments located within five (5) feet of the centerline of the mains will be replaced by the City at no expense to the Contractor, provided the City is notified at least 48 hours before the property line monuments are damaged.
B. Contractor shall provide such heat, covering, and enclosures as are necessary to protect all Work, materials, equipment, appliances, and tools against damage by weather conditions.
C. Contractor shall take adequate precautions to protect existing sidewalks, curbs, pavements, utilities, and other adjoining property and structures, and to avoid damage thereto, and Contractor shall repair any damage thereto caused by the Work operations. Contractor shall:
1. Enclose the working area with a substantial barricade, and arrange work to cause minimum amount of inconvenience and danger to the public.
2. Provide substantial barricades around any shrubs or trees indicated to be preserved.
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3. Deliver materials to the Project site over a route designated by the Engineer.
4. Provide any and all dust control required and follow the Applicable air quality regulations as appropriate. If the Contractor does not comply, the City shall have the immediate authority to provide dust control and deduct the cost from payments to the Contractor.
5. Confine Contractor’s apparatus, the storage of materials, and the operations of its workers to limits required by law, ordinances, permits, or directions of the Engineer. Contractor shall not unreasonably encumber the Project site with its materials.
6. Take care to prevent disturbing or covering any survey markers, monuments, or other devices marking property boundaries or corners. If such markers are disturbed by accident, they shall be replaced by a civil engineer or land surveyor acceptable to the City, at no cost to the City.
7. Ensure that existing facilities, fences and other structures are all adequately protected and that, upon completion of all Work, all facilities that may have been damaged are restored to a condition acceptable to the City.
8. Preserve and protect from injury all buildings, pole lines and all direction, warning and mileage signs that have been placed within the right-of-way.
9. At the completion of work each day, leave the Project site in a clean, safe condition.
10. Comply with any approved stage construction and traffic control plans.
Access to residences and businesses shall be maintained at all times, unless otherwise permitted in writing by the City.
11. Cover and or protect work and project site as may be required to prevent or mitigate schedule delay and to allow work to proceed during wet weather or wet conditions.
D. These precautionary measures will apply continuously and not be limited to normal working hours. Full compensation for the Work involved in the preservation of life, safety and property as above specified shall be considered as included in the prices paid for the various contract items of Work, and no additional allowance will be made therefore.
E. Should damage to persons or property occur as a result of the Work, Contractor shall be responsible for proper investigation, documentation, including video or photography, to adequately memorialize and make a record of what transpired.
The City shall be entitled to inspect and copy any such documentation, video, or photographs.
3.5 SITE CONDITIONS SURVEYS
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A. Work Included.
Contractor shall conduct thorough pre-construction and post-construction site condition surveys of the entire project area. Site Conditions surveys shall include written documentation of the conditions found, as well as photographs and video recordings of the area within at least 80 feet of any construction area and staging area. The written notes, photographs, and video shall be suitable for forensic purposes to resolve any damage claims that may arise as a result of construction.
B. Submittals.
1. Written documentation of site condition survey at pre-construction and post-construction.
2. Photographs as described herein of pre-construction and postconstruction conditions.
3. Video recordings as described herein of pre-construction and postconstruction conditions.
4. Submittals shall be made within three days of the surveys. All postconstruction data shall be submitted prior to the final project inspection.
C. Site Condition Written Documentation.
Written documentation shall include the time, date, and conditions under which the site survey was made. The documentation shall note the condition of structures, pavement, sidewalks, utilities, fences, and etc. within the work areas.
D. Photographs & Video Recording.
1. General – Prior to starting Work, Contractor shall provide a video recording of the project site. Contract shall take enough photographs during each site survey to provide a record of conditions existing prior to construction and conditions after construction. Pre-construction video and photographs shall be taken prior to any construction or mobilization of equipment, but not more that one week prior to actual start of work.
The pre-construction photographs may be staged at different times to match the progression of the Work.
2. The photographs shall document existing damage to public and private facilities, both prior to and after construction. Conditions to be documented include, but are not limited to: sidewalk cracks, broken curbs, separated property walls, improvements within public right-ofways, access roads used, utility covers and markings, signs, pavement striping, pavement, unique or unusual conditions, adjacent driveways, landscaping, survey markers, and any feature directed by the Engineer.
Private property that is adjacent to the public right-of-way shall be documented to the extent visible from the public right-of-way. 38077.00180\29080232.10
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3. Photographs shall include items to indicate scale, as needed. In particular, scales or other items shall be laid next to close ups of structural cracks and other damaged areas being recorded. Scaling shall also be used to document elevation differences, as needed.
4. One set of color prints and the preconstruction site video shall be submitted. Additional sets shall be available for reviewing in settling any construction disputes. A set of photos shall also be furnished in electronic format. The resolution shall be at least equal to 7 mega-pixels.
All photos shall be documented as to time and date taken, photographer, project number, location, and orientation. Documentation shall include a brief description of objects photographed.
E. Video Recording.
1. Video recordings shall document the conditions of the entire area affected by construction, as well as nearby structures and facilities. The general documentation requirements for videos are the same as for photographs.
Video recorders shall accurately and continuously record the time and date.
2. Video recordings shall include an audio portion made simultaneously during the videoing. The audio recording shall describe the location, time, orientation, and objects being recorded. Special commentary shall be provided for unusual conditions or damage noted.
3. Video equipment shall be capable of producing high resolution images and shall have zoom capabilities.
4. Video recordings shall provide an overall picture of the sites and shall provide detailed images of damaged areas. Video shall extend to the maximum height of structures.
5. The Engineer shall have the right to reject any audio video recordings submitted with unintelligible audio, uncontrolled pan or zoom, or of poor quality. Video recordings shall be repeated when rejected.
6. Video recordings shall be submitted with labels indicating the project, date, recorder, and other pertinent information. Recordings shall be submitted on standard DVDs in a standard format.
F. Timing.
Contractor shall provide written notice of the time scheduled for the site conditions survey and the place it is to begin. Contractor shall obtain the Engineer’s concurrence prior to beginning the condition survey. The Engineer reserves the right to cancel the survey due to weather conditions or other problems. Videoing shall be done during times of good visibility and no videoing or photography shall be done during periods of visible precipitation or when standing water obscures pavement. Contractor shall provide the Engineer with 38077.00180\29080232.10
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an opportunity to have a representative present when taking the photos and provide guidance during photographing.
G. Site Surveyor.
The site condition surveyor(s) shall be experienced in construction and potential damage concerns. The site condition surveyor(s) shall be familiar with the photography and video equipment being used.
H. Field Quality Control.
Prior to submitting videos and photographs, the Contractor shall spot check the photos and videos in the field to insure they accurately reflect the actual conditions and to insure they are correctly labeled.
I. Soils Compaction Testing.
1. All soils compaction testing will be done by a licensed geotechnical engineer furnished by the City. Soils compaction testing will be done for all footings and foundations prior to placement of rebar or concrete.
2. For pipeline construction, soil compaction testing will be done at 100-foot intervals or as ordered by the project soils/geotechnical report at the bottom of the trench prior to placement of pipe bedding; at the top of the pipe bedding above the pipe; every two vertical feet of trench backfill or as otherwise ordered by the project soils/geotechnical report; at the top of the trench backfill, which sould be the bottom of the pavement section; and at the top of the aggregate base prior to pavement construction.
3.6 SUBMITTAL REQUIREMENTS FOR MANUALS AND RECORD DRAWINGS A. General. The Contractor shall furnish all materials and perform all Work required for furnishing submittals to City in accordance with Contract Documents.The Contractor shall submit Project Record Drawings, Technical Manual, Spare Parts, and other required items within 5 days following completion of project construction, and prior to Contractors request for Project Acceptance.
B. Technical Manuals.
1. The Contractor shall submit technical operation and maintenance information for each item of mechanical, electrical and instrumentation equipment in an organized manner in the Technical Manual. It shall be written so that it can be used and understood by City’s operation and maintenance staff.
2. The Technical Manual shall be subdivided first by specification section number; second, by equipment item; and last, by "Category." The Contractor shall furnish to City four (4) identical Technical Manuals.
Each set shall consist of one or more volumes, each of which shall be bound in a standard binder.
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C. Spare Parts List - The Contractor shall furnish to City six (6) identical sets of spare parts information for all mechanical, electrical, and instrumentation equipment.
The spare parts list shall include the current list price of each spare part. The spare parts list shall include those spare parts which each manufacturer recommends be maintained by City in inventory. Each manufacturer or supplier shall indicate the name, address, and telephone number of its nearest outlet of spare parts to assist City in ordering. The Contractor shall cross-reference all spare parts lists to the equipment numbers designated in the Contract Documents. The spare parts lists shall be bound in standard size, 3-ring binder.
D. Record Drawings
1. The Contractor shall maintain one record set of Drawings at the Site. On these, it shall mark all Project conditions, locations, configurations, and any other changes or deviations which may vary from the information represented in the original Contract Documents, including buried or concealed construction and utility features which are revealed during the course of construction. Special attention shall be given to recording the horizontal and vertical location of all buried utilities that differ from the locations indicated, or which were not indicated on the Contract Drawings.
Said record drawings shall be supplemented by any detailed sketches as necessary or directed to fully indicate the Work as actually constructed.
These master record drawings of the as-built conditions, including all revisions made necessary by Addenda and Change Orders shall be maintained up-to-date during the progress of the Project. Red ink shall be used for alterations and notes. Notes shall identify relevant Change Orders by number and date.
2. For all Projects involving the installation of any pipeline, Contractor shall survey and record the top of the pipe at a minimum of every 100 linear feet, and at each bend, recording both the horizontal and vertical locations.
3. Record drawings shall be accessible to City’s Representative at all times during the construction period. The record drawings shall be kept up to date and will be checked by the City prior to each progress payment.
Failure on the Contractor’s part to keep record drawings current could result in withholding partial payment.
4. Upon Completion of the Project and as a condition of final acceptance, the Contractor shall finalize and deliver a complete set of Record Drawings to City’s Representative. The information submitted by the Contractor will be assumed to be correct, and the Contractor shall be responsible for, and liable to City, for the accuracy of such information, and for any errors or omissions which may or may not appear on the Record Drawings.
E. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to complete the Manuals and Record Drawings shall be included in Contractor’s bid and distributed in the Schedule of Pay. No additional compensation shall be made to the Contractor for this Work. 38077.00180\29080232.10
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3.7 MATERIALS
A. Materials to be Furnished by the Contractor
1. Inspection of Materials. Materials furnished by the Contractor which will become a part of the Project shall be subject to inspection at any one or more of the following locations, as determined by City’s Representative:
at the place of production or manufacture, at the shipping point, or at the site of the Work. To allow sufficient time to provide for inspection, the Contractor shall submit to City’s Representative, at the time of issuance, copies of purchase orders or other written instrument confirming procurement of the materials, including drawings and other pertinent information, covering materials on which inspection will be made.
2. No later than fourteen (14) Days prior to manufacture of material, Contractor shall inform City’s Representative, in writing, the date the material is to be manufactured.
3. Contractors Obligations. The inspection of materials at any of the locations specified above or the waiving of the inspection thereof shall not impact whether the materials and equipment conform to the Contract Documents. Contractor will not be relieved from furnishing materials meeting the requirements of the Contract Documents due to City’s inspection or lack of inspection of the equipment or materials.
Acceptance of any materials will be made only after materials are installed in the Project.
4. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to accommodate City’s testing efforts, including any travel required by Contractor’s forces, shall be included in Contractor’s bid and distributed in the Schedule of Pay Items related to the materials requiring testing. No additional compensation shall be made to the Contractor for this Work.
3.8 LOCAL CONDITIONS AND REQUIREMENTS
A. Access to Work and Haul Routes
1. General. All work on the rights-of-way necessary for access to the Site shall be performed by the Contractor. Contractors anticipated Haul Routes shall be in compliance with the City's approved Truck Routes available from the Engineer.
2. Access, Damage, Restoration. The Contractor shall make his own investigation of the condition of available public or private roads and of clearances, restrictions, bridge-load limits, permit or bond requirements, and other limitations that affect or may affect transportation and ingress or egress at the Site.
3. The Contractor shall maintain and repair any damage arising out of Contractor’s operations to all roads used during construction of the 38077.00180\29080232.10
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Project, and upon completion of all Work, but prior to final acceptance, the roads shall be restored to their original condition. Prior to using any road for access to the Site, the Contractor shall conduct a photograph and/or video survey of the roadway with a copy submitted to City’s Representative.
4. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to complete this Work, shall be included in Contractor’s bid and distributed in the Schedule of Pay Items.
No additional compensation shall be made to the Contractor for this Work.
B. Power. Contractor shall provide at its own expense all necessary power required for operations under the contract. The Contractor shall provide and maintain in good order such modern equipment and installations as shall be adequate in the opinion of the Engineer to perform in a safe and satisfactory manner the Work required by the contract.
C. Construction Water.
1. Construction water shall not be used for purposes other than those required to satisfactorily complete the contract.
2. Construction recycled water will be made available to the contractor from one of three fill locations within the city limits. If there is a need for construction recycled water during construction, the contractor shall apply for a city construction recycled water meter at the city hall finance counter prior to the beginning of work. A security deposit of $2,000 is required for the construction water meter from which the meter rental fee and cost of water will be deducted. if the rental fee and the water costs exceed the $2,000.00 deposited, an invoice will be issued to the contractor for payment.
3. Construction potable water will only be made available to the contractor if it can be demonstrated that recycled water cannot be used for the construction activities. potable water will be made available from existing city fire hydrant(s) nearest the proposed construction site as approved by the engineer, or by such other means as may be expressly approved in writing by the engineer. If there is a need for water during construction, the contractor shall apply for a city construction water meter at the city hall finance counter prior to the beginning of work. a security deposit of $2,000 is required for the construction water meter from which the meter rental fee and cost of water will be deducted. If the rental fee and the water costs exceed the $2,000.00 deposited, an invoice will be issued to the contractor for payment.
4. All required water, all work and materials required for obtaining, pumping, transporting and applying and otherwise disposing of said water shall be in an approved manner and shall be performed by, and at the expense of the contractor and no extra or separate compensation will be made thereof.
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D. Operation of Existing Water Facilities
1. The Contractor shall not operate any of the existing water systems, including pumps, motors, valves, and hydrants, but shall contact the City two (2) working days in advance with a list and location of the water system facilities that will require operating, opening, stopping, or closure by the City.
2. At the option of the Engineer, the Contractor may be permitted to operate valves for the purpose of making connections to existing mains. The City will perform all notification to existing customers regarding temporary loss of service.
3. Contractor shall submit a request on City’s standard form for any shutdown of existing water facilities.
E. Construction at Existing Utilities
1. General. Where the Work to be performed crosses or otherwise interferes with water, sewer, gas, or oil pipelines; buried cable; or other public or private utilities, the Contractor shall perform construction in such a manner so that no damage will result to either public or private utilities. It shall be the responsibility of the Contractor to determine the actual locations of, and make accommodates to maintain, all utilities.
2. Permission, Notice and Liability. Before any utility is taken out of service, permission shall be obtained by the Contractor from the owner. The owner, any impacted resident or business owner and the City Representative will be advised of the nature and duration of the utility outage as well as the Contractor’s plan for providing temporary utilities if required by the owner. The Contractor shall be liable for all damage which may result from its failure to maintain utilities during the progress of the Work, and the Contractor shall indemnify City as required by the Contract Documents from all claims arising out of or connected with damage to utilities encountered during construction; damages resulting from disruption of service; and injury to persons or damage to property resulting from the negligent, accidental, or intentional breaching of utilities.
3. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to complete this Work, shall be included in Contractor’s bid and distributed in the Schedule of Pay Items.
No additional compensation shall be made to the Contractor for this Work.
F. Traffic Control
1. General. Contractor shall abide by traffic control plans approved by the City.
2. Protections. Roads subject to interference by the Work shall be kept open or suitable temporary passages through the Work shall be provided and 38077.00180\29080232.10
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maintained by the Contractor. The Contractor shall provide, erect, and maintain all necessary barricades, suitable and sufficient flasher lights, flag persons, danger signals, and signs, and shall take all necessary precautions for the protection of the Work and the safety of the public.
No construction work along public or private roads may proceed until the Contractor has proper barricades, flasher lights, flag persons, signals, and signs in place at the construction site.
3. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to complete this Work, shall be included in Contractor’s bid and distributed in the Schedule of Pay Items.
No additional compensation shall be made to the Contractor for this Work.
G. Cleaning Up
1. Contractor at all times shall keep premises free from debris such as waste, rubbish, and excess materials and equipment. Contractor shall not store debris under, in, or about the premises. Contractor shall also clean all asphalt and concrete areas to the degree necessary to remove oil, grease, fuel, or other stains caused by Contractor operations or equipment, including all USA markings. The use of water, resulting in mud on streets, will not be permitted as substitute for sweeping or other methods. Dust control may require having a water truck onsite for the duration of the project, and/or use of temporary hoses and pipelines to convey water.
2. Contractor shall fully clean up the site at the completion of the Work. If the Contractor fails to immediately clean up at the completion of the Work, the City may do so and the cost of such clean up shall be charged back to the Contractor.
3.9 ENVIRONMENTAL QUALITY PROTECTION
A. Environmental Conditions
NOT USED.
B. Landscape and Vegetation Preservation
1. General. The Contractor shall exercise care to preserve the natural landscape and vegetation, and shall conduct operations so as to prevent unnecessary destruction, scarring, or defacing of the natural surroundings in the vicinity of the Work.
2. Damage and Restoration. Movement of crews and equipment within the rights-of-way and over routes provided for access to the Work shall be performed in a manner to prevent damage to property. When no longer required, construction roads shall be restored to original contours.
3. Upon completion of the Work, and following removal of construction facilities and required cleanup, land used for construction purposes and 38077.00180\29080232.10
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not required for the completed installation shall be scarified and regraded, as required, so that all surfaces are left in a condition that will facilitate natural revegetation, provide for proper drainage, and prevent erosion.
4. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to complete this Work, shall be included in Contractor’s bid and distributed in the Schedule of Pay Items.
No additional compensation shall be made to the Contractor for this Work.
C. Protected Species
1. General. If, in the performance of the Work, evidence of the possible occurrence of any State or Federally listed threatened or endangered plant or animal is discovered, the Contractor shall notify the City Representative immediately, giving the location and nature of the findings.
Written confirmation of the evidence, location and nature of the findings shall be forwarded to City within 2 Days.
2. Procedures. The Contractor shall immediately cease all construction activities in the immediate area of the discovery to the extent necessary to protect the endangered plant or animal.
If directed by the City Representative, Contractor will refrain from working in the immediate area, suspend the Work in its entirety, or alter its performance to ensure full compliance with all applicable permits, laws and regulations. Any City directed changes to the Work as a result of a siting will be pursuant to the Contract Documents.
3. False Siting. Any costs or delays incurred by City or the Contractor due to unreasonable or false notification of an endangered plant or animal will be borne by the Contractor.
4. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to comply with this paragraph, shall be included in Contractor’s bid and distributed in the Schedule of Pay Items. No additional compensation shall be made to the Contractor for this Work.
D. Preservation of Historical and Archeological Resources
1. General. If, in the performance of the Work, Contractor should unearth cultural resources (for example, human remains, animal bones, stone tools, artifacts and/or midden deposits) through excavation, grading, watering or other means, the Contractor notify the
Construction/Archeological Monitor and/or the City Representative immediately, giving the location and nature of the findings. Written confirmation of the evidence, location and nature of the findings shall be forwarded to the Construction/Archeological Monitor and/or City within 2 Days.
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2. Procedures. The Contractor shall immediately cease all construction activities in the immediate area of the discovery to the extent necessary to protect the cultural resource.
If directed by the City Representative, Contractor will refrain from working in the immediate area, suspend the Work in its entirety, or resequence and/or alter its performance to ensure full compliance with all applicable permits, laws and regulations. Should the presence of cultural resources be confirmed, the Contractor will assist the City Representative and the Construction/Archeological Monitor in the preparation and implementation of a data recovery plan. The Contractor shall provide such cooperation and assistance as may be necessary to preserve the cultural resources for removal or other disposition. Any City directed changes to the Work as a result of the cultural resource will be pursuant to the Contract Documents.
3. Contractor’s Liability. Should Contractor, without permission, injure, destroy, excavate, appropriate, or remove any cultural resource on or adjacent to the Site, it will be subject to disciplinary action, arrest and penalty under applicable law. The Contractor shall be principally responsible for all costs of mitigation and/or restoration of cultural resources related to the unauthorized actions identified above.
Contractor shall be required to pay for unauthorized damage and mitigation costs to cultural resources (historical and archeological resources) as a result of unauthorized activities that damage cultural resources and shall indemnify City pursuant to the Contract Documents.
4. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to comply with this paragraph, shall be included in Contractor’s bid and distributed in the Schedule of Pay Items. No additional compensation shall be made to the Contractor for this Work.
E. Dust and Pollution Control
1. Contractor shall provide all necessary material, equipment and labor to prevent and control the emission of dust and any other potential pollutant on site. Contractor shall remove construction caused debris from streets and sidewalks as directed by the Engineer.
2. Contractor shall not discharge into the atmosphere from any source smoke, dust or other air contaminants in violation of the law, rules, and regulations of the governing agency.
3. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to comply with this paragraph, shall be included in Contractor’s bid and distributed in the Schedule of Pay Items. No additional compensation shall be made to the Contractor for this Work.
F. Management of Storm, Surface and Other Waters
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1. Storm water, surface water, groundwater, and nuisance, or other waters may be encountered at various times during construction of the Project.
Federal and State laws require the City and its contractors to manage such waters pursuant to the requirements of California State Water Resources Control Board Order Number 2009-0009-DWQ, the Federal Clean Water Act, and the California Porter Cologne Water Quality Control Act. Contractor acknowledges that it has investigated the risk arising from such waters in conjunction with the Project, has prepared its Bid accordingly, and assumes any and all risks and liabilities arising therefrom.
2. The Contractor shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Work including, without limitation, all applicable provisions of the City’s ordinances regulating discharges of storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. These include, but are not limited to the San Francisco Bay Regional Water Quality Control Board Order No. R2-2015- 0049 (NPDES Permit No. CAS 612008), and State Water Resources Control Board Order No. 2010-0014-DWQ, Order No. 2009-0009-DWQ, and Order No. 2012-0006-DWQ, and any amendment or renewal thereof (“Construction General Permit”). Contractor must perform all construction operations in such a manner as to comply, and ensure all subcontractors to comply, with all applicable Federal, State, and local laws, orders, and regulations concerning the control and abatement of water pollution; and all terms and conditions of any applicable permits issued for the Project. In the event there is a conflict between Federal, State, and local laws, regulations, and requirements, the most stringent shall apply.
3. Compliance with Construction General Permit. Contractor must comply with all aspects of the Construction General Permit, State Water Resources Control Board (State Board) Water Quality Order No. 2009- 0009-DWQ, as amended by Order Nos. 2010-0014-DWQ and 2012- 0006-DWQ, and any amendment or renewal thereof (NPDES
CAS000002), for all projects that involve construction on or disturbance of one acre or more of land or which are part of a larger common plan of development or sale.
(a) Permit registration. Unless otherwise specified in the Special Conditions, Contractor must prepare the Notice of Intet for coverage under the Construction General Permit and all Permit Registration Documents (PRDs), including but not limited to the Storm Water Pollution Prevention Plan (SWPPP), as those terms are defined in the Construction General Permit. Contractor must coordinate submittal of all PRDs with th eCity’s Legally Responsible Person and/or Authorized Signatory, as those terms are defined in the Construction General Permit. The Contractor 38077.00180\29080232.10
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must submit the PRDs, including the SWPPP to the City
Representative for review not less than fifteen (15) Days prior to the start of on- site construction work. City will file the Notice of Intent and PRDs and pay the filing fee.
(b) Before any Construction General Permit related documents may be submitted to the State Board or implemented on the Project site, they must first be reviewed and accepted by City.
Acceptance by the City does not relieve the Contractor from ensuring such documents comply with all lawsapplicable laws, regulations, and orders.
(c) Contractor must ensure that the SWPPP is developed by a Qualified SWPPP Developer and implemented by a Qualified SWPPP Practitioner as those terms are defined in the Permit.
Contractor must implement the SWPPP and all other provisions of the Construction General Permit, including the monitoring and reporting requirements, preparing and submitting all reports, plans, inspections, and monitoring information in compliance with the Construction General Permit. The SWPPP must include industry standard requirements for water quality control including but not be limited to the following:
(1) Sediment and erosion control measures to manage
sediment and erosion including vegetative practices,
structural control, silt fences, straw dikes, sediment
controls or operator controls as appropriate.Storm water management measures shall be instituted as required,
including velocity dissipaters, and solid waste controls shall address controls for building materials and offsite tracking of sediment.
(2) Wastewater and storm water management controls to
divert offsite surface flows around the Project site and to divert surface flows within the Project area away from
areas of open earth or stockpiles of building and other materials. Wastewater from general construction activities, such as drain water collection, aggregate processing,
concrete batching, drilling, grouting, or other construction operations, shall not enter flowing or dry watercourses without having met the authorized non-storm water
discharge requirements listed in State Board Water Quality Order No. 2009-0009-DWQ, Section III.C., including proper notification to the Regional Water Board.
(3) Pollution prevention measures including methods of
dewatering, unwatering, excavating, or stockpiling earth and rock materials which include prevention measures to control silting and erosion, and which will intercept and settle any runoff of sediment-laden waters.
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(4) Turbidity prevention measures for prevention of excess turbidity including, but are not restricted to, intercepting ditches, settling ponds, gravel filter entrapment dikes, flocculating processes, recirculation, combinations thereof, or other approved methods that are not harmful to aquatic life. All such wastewaters discharged into surface waters, shall contain the least concentration of settleable material possible, and shall meet all conditions of section 402, the National Pollutant Discharge Elimination System (NPDES) permit.
(5) Overall construction site management measures to
address changes at the Project site as the Project moves through different phases and changes that account for
rainy and dry season management practices.
(6) Pollution control measures and construction activity methods that will prevent entrance, or accidental spillage, of solid matter, contaminants, debris, or other pollutants or wastes, into streams, flowing or dry watercourses, lakes, wetlands, reservoirs, or underground water sources. Such pollutants and wastes include, but are not restricted to:
refuse, garbage, cement, sanitary waste, industrial waste, hazardous materials, radioactive substances, oil and other petroleum products, aggregate processing, tailings,
mineral salts, and thermal pollution.
(7) Control measures for stockpiled or deposited materials prohibiting the stockpile or deposit of excavated materials, or other construction materials, near or on stream banks, lake shorelines, or other watercourse perimeters where
they can be washed away by high water or storm runoff, or can, in any way, encroach upon the watercourse.
(8) Develop and implement a Rain Event Action Plan (REAP), if required, that must be designed and implemented to
protect all exposed portions of the site 48 hours prior to any likely precipitation event.
(9) Monitoring, reporting and record keeping, as necessary to achieve compliance with applicable Permit requirements, including but not limited to annual reports and rain event reports.
(d) City retains the right to procure and maintain coverage under the Construction General Permit for the Project site if the Contractor fails to draft a SWPPP or other Construction General Permit related document, or fails to proceed in a manner that is satisfactory to City. City reserves the right to implement its own SWPPP at the Project site, and hire additional contractors to maintain compliance. Whether Contractor has adequately
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maintained compliance with the Construction General Permit shall be City’s sole determination. In the event that Contractor has failed or is unable to maintain compliance with the Construction General Permit, any costs or fines incurred by City in
implementing a SWPPP, or otherwise maintaining compliance with the Construction General Permit shall be paid by the Contractor.
4. For those Work sites where construction activity results in the disturbance of less than one acre of total land area and/or do not need coverage under the Construction General Permit, the Contractor shall be responsible for preparing and implementing construction industry best management practices to eliminate or reduce the discharge of pollutants from construction sites, such as the best management practices set forth in the CASQA Construction BMP Handbook.
5. In addition to compliance with the Permit, Contractor shall comply with the lawful requirements of any applicable municipality, district, drainage district, flood control district, and other local agencies regarding discharges of storm water, surface water, groundwater or other nuisance waters off of the Project site.
6. Contractor violations.
(a) Failure to implement the SWPPP or otherwise comply with the Construction General Permit or local state and federal laws is a violation of this Contract. Notwithstanding any other indemnity contained in this Agreement, Contractor agrees to indemnify, defend – with counsel acceptable to the City – and hold harmless the City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, losses or liabilities of any kind or nature which the City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for noncompliance with the laws, regulations, and ordinances listed above, arising out of or in connection with the Work, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. (b) City reserves the right to defend any enforcement action or civil action brought against the City for Contractor’s failure to comply with any applicable water quality law, regulation, or policy.
Contractor hereby agrees to be bound by, and to reimburse the City for the costs associated with, any enforcement action and/or settlement reached between the City and any relevant
enforcement entity.
(c) City may seek damages from Contractor for delay in completing the Contract in accordance with the Contract Documents, caused by Contractor’s failure to comply with the the laws, regulations and 38077.00180\29080232.10
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policies described in this Article, or any other relevant water quality law, regulation, order, or policy.
(d) If noncompliance with any relevant law, regulation or permit, order, or policy occurs, the Contractor shall report this to the City Representative immediately, with the specific information submitted in writing within 2 Days. Consistent violations of applicable Federal, State, or local laws, orders, regulations, or Water Quality Standards may result in City stopping all site activity until compliance is ensured. The Contractor shall not be entitled to any change in Contract Price or Contract Times, claim for damage, or additional compensation by reason of such a work stoppage. Corrective measures required to bring activities into compliance shall be at the Contractor's expense.
7. Oil storage tanks management.
(a) Storage tank placement. All oil or other petroleum product (hereinafter referred to collectively as oil) storage tanks shall be placed at least 20 feet from streams, flowing or dry watercourses, lakes, wetlands, reservoirs, and any other water source. (b) Storage area dikes. Storage areas shall be diked at least 12 inches high or graded and sloped to permit safe containment of leaks and spills equal to the capacity of all tanks and/or containers located within each area, plus a sufficient amount of freeboard to contain the 25-year rainstorm.
(c) Diked area barriers. Diked areas shall have an impermeable barrier at least 10 mils thick. Areas used for refueling operations shall have an impermeable liner at least 10 mils thick buried under 2 to 4 inches of soil.
(d) Spill Prevention Control and Countermeasure Plan (SPCC).
Where the location of a construction site is such that oil from an accidental spillage could reasonably be expected to enter into or upon the navigable waters of the United States or adjoining shorelines, and the aggregate storage of oil at the site is over 1,320 gallons or a single container has a capacity in excess of 660 gallons, the Contractor shall prepare an SPCC Plan. The Contractor shall submit the SPCC Plan to the Engineer at least 30 days prior to delivery or storage of oil at the site. The Plan must have been reviewed and certified by a registered professional engineer in accordance with 40 C.F.R., part 112
8. Underground tank prohibition. The Contractor shall not use underground storage tanks.
9. Construction safety standards. The Contractor shall comply with the sanitation and potable water requirements of Section 7 of United States 38077.00180\29080232.10
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Bureau of Reclamation's publication “Reclamation Safety And Health Standards.”
10. Other Permits.
(a) Other permits applicable to the Project are listed in the Special Conditions. The Contractor shall obtain all other necessary licenses and permits.
(b) Monitoring. The Contractor is required to conduct monitoring in order to meet the requirements of the permits, which may include sampling, testing and inspections.
(c) Recordkeeping. The Contractor shall retain all records and data required by the permits for the time specified in the contract.
11. Cost. Except as specified herein, the cost of complying with this section shall be included in the Schedule of Pay Items for work which necessitate the water pollution prevention measures required by this paragraph.
END OF GENERAL REQUIREMENTS
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