Milpitas City Council
November 14, 2023

November 14, 2023 Milpitas City Council Agenda Page 1

SPECIAL MEETING OF THE MILPITAS

CITY COUNCIL
AGENDA
TUESDAY, NOVEMBER 14, 2023
CITY COUNCIL CHAMBER, 455 E. CALAVERAS BLVD, MILPITAS, CA 5:30 PM
For assistance in the following languages, you may call:

Đối với Việt Nam, gọi 408-586-2400
Para sa Tagalog, tumawag sa 408-586-3051
Para español, llame 408-586-3072
The City Council meeting is held in the City Council Chamber at City Hall, 455 E. Calaveras Blvd., Milpitas and via teleconference/Zoom webinar.

You may watch the Council meeting without providing public comment by accessing it via links here.

Meeting shall be livestreamed - Go to:

Facebook: https://www.facebook.com/CityofMilpitas/
YouTube: https://www.milpitas.gov/youtube
Web Streaming: https://www.milpitas.gov/webstreaming

PUBLIC COMMENT INSTRUCTIONS
Oral public comments may only be provided live during the City Council meeting in person. All comments provided shall be limited to three minutes or less as determined by the Mayor. All members of the public will be limited to one comment per agenda item, and one comment for non-agenda items. Members of the public may submit written comments by email to [email protected] The meeting will be streamed via Zoom for viewing purposes only. To watch via Zoom, please register at:
https://ci-milpitas-ca-gov.zoom.us/webinar/register/WN_Yt_HeYJVRSaGncCX1p-W2w NOTE: If a member of the public wishes to share any presentation materials for Council consideration, they must be submitted to the Clerk’s Office by email to [email protected] by 12:00 p.m. on the day of the meeting. No presentations will be accepted in person in the Council Chambers.

MILPITAS CITY COUNCIL CODE OF CONDUCT
•Be respectful and courteous (words, tone, and body language). •Model civility.
•Avoid surprises.
•Praise publicly and criticize privately.
•Focus on the issue, not the person.
•Refrain from using electronic devices while on the Council dais. •Disclose conflicts of interest and affiliations related to agenda items. •Separate governing from campaigning.
•The Council speaks with one voice after making policy on issues. •Respect the line between policy and administration.
•Council will hold one another accountable to comply with this Code of Conduct.

November 14, 2023 Milpitas City Council Agenda Page 2
CALL MEETING TO ORDER by Mayor and ROLL CALL by City Clerk (5:30 PM)

ADJOURN TO CLOSED SESSION
(a) CONFERENCE WITH LABOR NEGOTIATORS
Pursuant to Government Code Section 54957.6
Agency designated representative: Rick Bolanos, LCW
Bargaining unit: LIUNA, UPEC (Pro-Tech, MEA, MidCon), IAFF, MPOA (b) CONFERENCE WITH LEGAL COUNSEL
Existing Litigation pursuant to Government Code Section 54956.9:

In re: Aqueous Film-Forming Foams Products Liability Litigation, MDL No. 2:18-mn-02873 City as a Class Member

CLOSED SESSION ANNOUNCEMENT
Report on action taken in Closed Session, if required per Government Code Section 54957.1, including the vote or abstention of each member present.

PLEDGE OF ALLEGIANCE
INVOCATION (Mayor Montano)
PRESENTATIONS (6:00 PM)
PUBLIC FORUM (6:05 PM)
Members of the public are invited to speak on any item that does not appear on today’s agenda. Comments will be limited to three minutes or less at the Mayor’s discretion. When called to speak, you are encouraged to state your name for the record.

As an item not listed on the agenda, no action can be taken, however the City Council may instruct the City Manager to place the item on a future meeting agenda.

ANNOUNCEMENT OF CONFLICT OF INTEREST AND CAMPAIGN CONTRIBUTIONS

READING OF THE CITY COUNCIL CODE OF CONDUCT

APPROVAL OF AGENDA
CONSENT CALENDAR (6:15 PM)
Consent calendar items are considered to be routine and will be considered for adoption by one motion. There will be no separate discussion of these items unless a City Councilmember, member of the audience or staff requests the Council to remove an item from (or be added to) the consent calendar. Any person desiring to speak on any item on the consent calendar should ask to have that item removed from the consent calendar.

C1. Receive City Council Calendar of Meetings for November and December 2023 (Staff Contact:

Suzanne Guzzetta, City Clerk, 408-586-3001)
Recommendation: Receive City Council Calendar of Meetings for November and December 2023.

C2. Receive the Preview List of Anticipated Items for the Next Regular City Council Meeting (Staff Contact: Suzanne Guzzetta, City Clerk, 408-586-3001)
Recommendation: Receive the list of anticipated agenda items for the next regular City Council meeting.

C3. Approve the 2024 City Council Meeting Schedule (Staff Contact: Suzanne Guzzetta, City Clerk, 408-586-3001)

November 14, 2023 Milpitas City Council Agenda Page 3
Recommendation: Approve the 2024 Milpitas City Council meeting schedule, with any changes requested at the City Council meeting.

C4. Authorize and Approve Travel to San Francisco, CA, for Councilmember Hon Lien to Attend the (1) 9th Annual CALNET Leadership Retreat to be Held on November 16 – 17, 2023, and the (2) National API Elected Officials Summit to be held on November 18 -19, 2023, for an Estimated Total Not-to-Exceed Amount of $1000 Budgeted Under the Individual Elected Official Allocation for Conferences/Meetings/Trainings (Staff Contact: Ned Thomas, City Manager, 408-586-3053) Recommendation: Authorize and approve travel to San Francisco, CA, for Councilmember Hon Lien to attend (1) the 9th Annual CALNET Leadership Retreat to be held on November 16 – 17, 2023; and (2) the National API Elected Officials Summit to be held on November 18 -19, 2023, for an estimated total not-to-exceed amount of $1,000 budgeted under the Individual Elected Official allocation for Conferences/Meetings/Trainings.

C5. Authorize the City Manager to Negotiate and Execute an Extension of the Existing Sister Cities Memorandum of Understanding with the City of Dagupan, Philippines (Staff Contact: Matt Cano, Deputy City Manager, 408-586-3012)
Recommendation: Authorize the City Manager to negotiate and execute an extension of the existing Memorandum of Understanding with the City of Dagupan, Philippines for a period of five years with two additional five year mutual options.

C6. Approve and Authorize the City Manager to Execute a Software License and Professional Services Agreement with TriTech Software Systems, Inc. for Computerized Maintenance Management System Subscription License Fees for a Total Amount Not-to-Exceed $374,105.21, Subject to the Annual Appropriation of Funds (Staff Contact: Christian Di Renzo, Public Works Director, 408-586-2602)
Recommendation: Approve and authorize the City Manager to execute a software license and professional services agreement with TriTech Software Systems, Inc. for computerized maintenance management system subscription license fees for a total amount not-to-exceed $374,105.21, subject to the annual appropriation of funds.

C7. Report on Bids and Adopt a Resolution Authorizing the City Manager to Award the Construction Contract to I & A Contractor, Inc. in the Amount of $428,300.00 for the Sports Center Roof Rehabilitation Project (Staff Contact: Christian Di Renzo, Public Works Director, 408-586-2602) Recommendation: (1) Receive report on bids and adopt a resolution authorizing the City Manager to award a construction contract to the lowest responsible and responsive bidder, I & A Contractor, Inc., in the amount of $428,300.00 for the Sports Center Roof Rehabilitation Project; and (2) Authorize the City Manager to negotiate and execute contract change order(s) in an aggregate amount not to exceed $64,245.00 for the Sports Center Roof Rehabilitation Project.

C8. Consider One Fee Waiver from Kiwanis Club of Milpitas Foundation and one Donation Request from Knights of Columbus St. John’s Council 5796 (Staff Contact: Renee Lorentzen, Recreation and Community Services Director, 408-586-3409)
Recommendation: (1) Approve a Fee Waiver of $900.00 for the Kiwanis Club of Milpitas Foundation’s 20th Annual MUSD Crab Feed and Auction Event scheduled for February 9, 2024; and (2) Approve a donation request of $500.00 for the Knights of Columbus St. John’s Council 5796 for their 45th Annual Free Thanksgiving Dinner event at the St. John the Baptist Catholic Church on Thursday, November 23, 2023.

November 14, 2023 Milpitas City Council Agenda Page 4
COMMUNITY DEVELOPMENT (6:30 PM)

9. Receive Report on Manufacturing Day 2023 and Issue Certificates of Commendation to Event Collaborators (Staff Contact: Alex Andrade, Director of Economic Development, 408-586-3046; and Michael Thomas, Economic Development Specialist, 408-586-3045) Recommendation: Receive report on Manufacturing Day 2023 and issue certificates of commendation to event collaborators.

10. Receive Presentation on Proposed Mixed-Use Development at 70 N. Main St. and Provide Direction on Preferred Alternative regarding Shared Parking Agreement (Staff Contact: Jay Lee, Planning Director, 408-586-3077; and Michael Fossati, Senior Planner, 408-586-3274) Recommendation: (1) Receive a summary of a pre-application to demolish an existing vacant restaurant and develop a mixed-use building without on-site parking; and (2) Provide direction on the preferred alternative to provide exclusive access to City-owned land and facilitate a shared parking agreement with the property owner.

11. Receive a Presentation from Staff and Applicant and Provide Direction Regarding Conceptual Plans for Proposed Development (“600 Valley Way”) to Subdivide Three Existing Lots into Two Parcels Totaling 7.22 Acres to Facilitate up to 104 Townhome Units and 140 Rental Affordable Units, for a Total of 244 Residential Units at 461, 538, and 602 Valley Way (APNs 022-28-022, - 024, and -025) (Staff Contact: Jay Lee, Planning Director, 408-586-3077; and Lillian VanHua, Senior Planner, 408-586-3073)
Recommendation: (1) Receive presentations from staff and the applicant; (2) Receive public comment; and (3) Provide feedback on the Preliminary Review Application and staff's recommendation on how to accommodate the Project through the Gateway-Main Street Specific Plan process.

LEADERSHIP AND SUPPORT SERVICES (8:00 PM)

12. Review the List of Agenda Item Requests From Individual Councilmembers and Provide Direction to Staff Through the Council-Approved Prioritization Process (Staff Contact: Matt Cano, Deputy City Manager, 408-586-3012)
Recommendation: (1) Review list of agenda item requests from individual Councilmembers and provide direction to staff, through the prioritization process, on which Group 1 items should be advanced; (2) Provide additional input to staff, if any, on Group 1 items that received Council direction to advance and all Group 2 items (3) Approve recommendations on certain Group 3 items as outlined in the Analysis section of this report.

ANNOUNCEMENTS AND FUTURE AGENDA ITEMS (8:30 PM)
Members of the City Council or City Manager may make brief announcements at this time. Members of the City Council may also suggest future agenda items. For future agenda items, the City Council shall not debate the topic or engage in discussion but shall simply state a “yes” or “no” as whether to move the item forward. If a majority of the City Council agrees to move the item forward, the City Manager shall place the item on a future agenda.

ADJOURNMENT (8:35 PM)

KNOW YOUR RIGHTS UNDER THE OPEN GOVERNMENT ORDINANCE
Government’s duty is to serve the public, reaching its decisions in full view of the public. Commissions and other City agencies exist to conduct the people’s business. This ordinance assures that deliberations are conducted before the people and City operations are open to the people’s review. For more information on

November 14, 2023 Milpitas City Council Agenda Page 5
your rights under the Open Government Ordinance or to report a violation, contact the City Attorney’s office at Milpitas City Hall, 455 E. Calaveras Blvd., Milpitas, CA 95035 e-mail:[email protected] / Phone: 408-586-3040 The Open Government Ordinance is codified in the Milpitas Municipal Code as Title I Chapter 310 and is available online at the City’s website www.milpitas.gov by selecting the Milpitas Municipal Code link.

Materials related to an item on this agenda submitted to the City Council after initial distribution of the agenda packet are available for public inspection at the City Clerk’s office at Milpitas City Hall, 3rd floor 455 E. Calaveras Blvd., Milpitas and on City website. City Council agendas and related materials can be viewed online: https://www.milpitas.gov/129/Agendas-Minutes (select meeting date)

APPLY TO SERVE ON A CITY COMMISSION
Commission application forms are available online at www.milpitas.gov or at Milpitas City Hall.

Contact the City Clerk’s Office at 408-586-3001 for more information.

If you need assistance, per the Americans with Disabilities Act, for any City of Milpitas public meeting, please call the City Clerk at 408-586-3001 or send an e-mail to [email protected] prior to the meeting. You may request a larger font agenda.

MILPITAS CITY COUNCIL CALENDAR
November 2023
Sunday Monday Tuesday Wednesday Thursday Friday Saturday 1 1:00 PM-Santa Clara VTA Monthly
Briefing - Northeast Group (CM)
(Santa Clara)
7:00 PM-Community Advisory
Commission (EC)
2 5:30 PM-Santa Clara VTA Board of
Directors (CM)
5:30 PM-Milpitas Chamber of
Commerce Board (GB)
3 4
5 2:00 PM-
Flag-Raising
Ceremony:

Native
American
Heritage &
Culture –
Cesar Chavez
Plaza
6 7:00 PM-Parks, Recreation & Cultural
Resources Commission (HL)
7 7:00 PM-City Council
8 7:00 PM-Planning Commission
7:00 PM-Silicon Valley Clean Energy
Board of Directors (EC) (Cupertino)
9 4:00 PM-Santa Clara VTA Policy
Advisory Committee (EC)
6:00 PM-Youth Advisory Commission
(HL))
7:00 PM-Cities Assoc of SCC (CM)
10 CITY HALL CLOSED IN

OBSERVANCE OF VETERANS DAY
11 9:00 AM-
Veterans Day
Ceremony –
Veterans
Plaza
12 13
4:30 PM-Economic Development and
Trade Commission (CM)
14 4:00PM- Milpitas HOPE
5:30 PM-Special Council Meeting in
lieu of 11/21 Regular Meeting
15 11:00 AM-Finance Subcommittee
(CM/EC)
6:00 PM-Energy and Environmental
Sustainability Commission (EC)
16 3:00 PM-VTA Safety, Security, and
Transit Planning & Operations
Committee (CM)
6:30 PM-Bay Area Water Supply
Conserv Agency (CM) (Wind Room
Foster City Community Center)
7:00 PM-Public Safety and
Emergency Preparedness Commission
(HL)
17 18
19 20
7:00 PM-Science, Technology, and
Innovation Commission (GB)
7:00 PM-Library and Education
Commission (EC) (Milpitas Public
Library)
21 22 23 24

CITY HALL CLOSED FOR THANKSGIVING
25 26 27
7:00 PM-Arts Commission (EC)
28 29
11:00 AM-1000 Hillview Ct.

Stakeholder Meeting (CM/EC)
30 October 2023

S M T W T F S
1 2 3 4 5 6 7
8 9 10 11 12 13 14
15 16 17 18 19 20 21
22 23 24 25 26 27 28
29 30 31
December 2023

S M T W T F S
1 2
3 4 5 6 7 8 9
10 11 12 13 14 15 16
17 18 19 20 21 22 23
24 25 26 27 28 29 30
31

Milpitas City Council Calendar
December 2023
Sunday Monday Tuesday Wednesday Thursday Friday Saturday 1 7:00 PM-Tree Lighting Ceremony
2 3 4
7:00 PM-Parks, Recreation & Cultural
Resources Commission (HL)
5 6:00 PM-Closed Session
7:00 PM-City Council
6 1:00 PM-Santa Clara VTA Monthly
Briefing - Northeast Group (CM)
(Santa Clara)
3:00 PM-City/School Collaborative
Subcommittee (CM/EC)
5:30 PM-Veterans Commission (CM)
7:00 PM-Community Advisory
Commission (EC)
7 5:30 PM-Milpitas Chamber of
Commerce Board (GB)
5:30 PM-Santa Clara VTA Board of
Directors (CM)
8 9
10 11 12
5:30 PM-Special Council Meeting
with Closed Session at 5:30 PM
13 4:30 PM-City Council Subcommittee
(CM/EC)
7:00 PM-Silicon Valley Clean Energy
Board of Directors (EC) (Cupertino)
7:00 PM-Planning Commission
14 4:00 PM-Treatment Plant Advisory
Committee (CM) (San Jose)
4:00 PM-Santa Clara VTA Policy
Advisory Committee (EC)
6:00 PM-Youth Advisory Commission
(HL)
7:00 PM-Cities Assoc of SCC (CM)
15 16
17 18
7:00 PM-Science, Technology, and
Innovation Commission (GB)
19 20
6:00 PM-Energy and Environmental
Sustainability Commission (EC)
21 3:00 PM-VTA Security, and Transit
Planning and Operations Committee
(CM) (San Jose)
22 23
24 25
City Observed Holiday
26 City Observed Holiday
27 28 29 30 31 November 2023

S M T W T F S
1 2 3 4
5 6 7 8 9 10 11
12 13 14 15 16 17 18
19 20 21 22 23 24 25
26 27 28 29 30
January 2024

S M T W T F S
1 2 3 4 5 6
7 8 9 10 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
28 29 30 31
City Hall and City Facilities Closed (Fire and Police are not affected)

TENTATIVE CITY COUNCIL AGENDA ITEM LIST
as of 11/9/2023
December 5, 2023 – Regular Meeting

CLOSED SESSION
•Labor Relations
INVOCATION (Vice Mayor Chua)

PRESENTATION

CONSENT CALENDAR

1. Receive City Council calendar for December 2023 (City Clerk)

2. Approve City Council Meeting minutes of November 14, 2023 (City Clerk)

3. Preview list of items for December 12, 2023 (City Clerk)

4. Councilmember Request List (City Clerk)

5. Commission Appointments (City Clerk)

6. Commission Workplan and Accomplishments (City Clerk)

7. Update on the Proposed Joint Powers Agency (JPA) Agreement for the Cities Association of Santa Clara County (City Manager)

8. ACFR (Finance)

9. ERP Contract (Finance)

10. Council Chamber A/V Replacement Contract (Information Technology)

11. 2nd Reading - 1355 California Circle Zoning Amendment (Planning)

12. Award of Custodial Services Contract (Public Works)

13. Disposition of Fleet and Equipment (Public Works)

14. Report on Emergency HVAC Repairs (Public Works)

LEADERSHIP AND SUPPORT SERVICES

15. Pushcart Regulation (City Attorney)

16. Potential Departmental Realignments (Human Resources)

17. Senator Wahab Presentation on Legislation (City Manager)

CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Approve City Council Meeting Schedule for 2024 (Staff Contact: Suzanne Guzzetta, City Clerk, 408-586-3001)
Category: Consent Calendar-Leadership and Support Services Meeting Date: 11/14/2023
Recommendation: Approve the 2024 Milpitas City Council meeting schedule, with any changes requested at the City Council meeting.

Background:

Pursuant to Milpitas Municipal Code Section I-1-2.01, the City Council shall hold its regular meetings on the first and third Tuesday of each month. Typically, in November of each year staff presents a proposed meeting schedule, noting any conflicts that may exist with regularly scheduled meeting dates for the City Council’s review and approval.

Discussion:

In the past the City Council has canceled both of the July regular City Council meetings for a summer recess.

Also, due to celebration of National Night Out on the first Tuesday in August, the City Council approved in 2019 the cancelation of the first meeting date in August each year. Staff recommends that a Special meeting be scheduled for August 13, 2024, to conduct the business that would have otherwise been done on August 1.

Staff is proposing one date in January for a Council Retreat, and dates in the months of January, February, and May 2024 for Council study sessions on the Comprehensive Zoning Update, Preliminary Budget, Capital Improvement Plan (CIP), and Operating Budget. Moreover, staff is proposing additional Special Meeting dates in the months of September and October as placeholders.

City staff has prepared the calendar for next year and requests that the Council confirm the City Council meeting schedule for 2024 for its regular bi-monthly Tuesday business meetings. The proposed 2024 schedule is included in the Council agenda packet.

Fiscal Impact:

There is no fiscal impact associated with this item.

California Environmental Quality Act (CEQA):

The action is an organizational or administrative activity of the City government that will not result in direct or indirect physical changes in the environment and is not a project pursuant to Cal. Code of Regs., tit. 14, § 15378.

Recommendation:

Approve the 2024 Milpitas City Council meeting schedule, with any changes requested at the City Council meeting.

Attachment:
2024 Council Meeting Dates List

City of Milpitas City Council
2024 Regular Meeting Dates
Tuesdays at 7:00 PM
and
Special Meeting Dates
Tuesdays at 5:30 PM or TBD
January 9 and 16
TBD
Council Retreat
January 23
Comprehensive Zoning Update Study Session
January 30
Preliminary 23-24 Budget Study Session
February 6 and 20
February 13
CIP Study Session
March 5 and 19
April 2 and 16
May 7 and 21
May 14
FY 2023-24 Budget Study Session
June 4 and 18
July – none
August 13 and 20
September 3 and 17
September 24
October 1 and 15
October 22
November 5 and 19
December 3 and 17
Note: Both July meetings and the first Tuesday in August (for National Night Out on August 2) are canceled. Tuesday, August 13 is scheduled for business that would otherwise be conducted on August 6. Special meeting dates are subject to change.

CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Authorize and Approve Travel to San Francisco, CA, for Councilmember Hon Lien to Attend: (1) the 9th Annual CALNET Leadership Retreat to be Held on November 16 – 17, 2023, and; (2) the National API Elected Officials Summit to be held on November 18 - 19, 2023, for an Estimated Total Not-to-Exceed Amount of $1,000 Budgeted Under the Individual Elected Official Allocation for Conferences/Meetings/Trainings (Staff Contact: Ned Thomas, City Manager, 408-586-3053)
Category: Consent Calendar-Leadership and Support Services Meeting Date: 11/14/2023
Recommendation: Authorize and approve travel to San Francisco, CA, for Councilmember Hon Lien to Attend: (1) the 9th Annual CALNET Leadership Retreat to be held on November 16 – 17, 2023, and; (2) the National API Elected Officials Summit to be held on November 18 -19, 2023, for an estimated total not-to-exceed amount of $1,000 budgeted under the Individual Elected Official allocation for Conferences/Meetings/Trainings.

BACKGROUND:

The California Asian Leadership Network of Elected and Appointed Officials (CALNET) is a project of the Asian Pacific American Leadership Foundation, which will hold its 9th Annual Leadership Retreat in San Francisco on November 16-17, 2023. This exclusive invite-only retreat has provided Asian American and Pacific Islander (AAPI) elected and appointed officials throughout California the rare opportunity to connect, strategize, and share best practices with each other. With a primary focus on Asia-Pacific leadership during Asia-Pacific Economic Cooperation (APEC) week this year, CALNET has invited more than 500 key AAPI leaders from across the United States to explore launching the first-ever national organization of AAPI elected and appointed officials.

The API Coalition and Civic Leadership USA (CLUSA) will host an inaugural National API Elected Officials Summit in San Francisco immediately following the Asia-Pacific Economic Corporation (APEC) Leaders’ and CEO Summit. The National API Elected Officials Summit will bring together over 300 API elected officials to exchange experiences and ideas and build relationships.

The preliminary agendas for both events are attached to this report.

ANALYSIS:

The City of Milpitas Travel and Expense Policy requires all travel for the elected officials and the City Manager to be approved by the City Council. Council approval of this request will allow Councilmember Hon Lien to network and have dialogue with several California and national leaders. Continued participation and attendance in conferences also ensures that the Milpitas community is fully represented at the regional, state, and national levels.

POLICY ALTERNATIVE(S):

Not Applicable
FISCAL IMPACT:

The estimated not-to-exceed expenses for the 9th Annual CALNET Retreat and the National API Elected Officials Summit, including the registration fee, is $1,000. To date, Councilmember Lien has an estimated

balance of $8,593.31 in her Individual Elected Official allocation of $10,000 for Conferences/Meetings/Memberships.

California Environmental Quality Act (CEQA):

The action is an organizational or administrative activity of the City government that will not result in direct or indirect physical changes in the environment and is not a project pursuant to Cal. Code of Regs., Title 14, Section 15378.

RECOMMENDATION:
1) Authorize and approve travel to San Francisco, CA, for Councilmember Hon Lien to Attend: (1) the 9 th Annual CALNET Leadership Retreat to be held on November 16 – 17, 2023, and; (2) National API Elected Officials Summit to be held on November 18 -19, 2023, for an estimated total not-to-exceed amount of $1,000 budgeted under the Individual Elected Official allocation for Conferences/Meetings/Trainings.

Attachment(s):
(a) Draft conference agenda
(b) Council budget tracking

Dear Hon. Lien,
Thank you for registering to our 9th Annual CALNET Leadership Retreat on November 16 – November 17 at the Hyatt Regency in San Francisco. A full program will be sent shortly. We are happy to announce the confirmation of some key speakers, including:
• Congressmember Judy Chu, Chair of Congressional Asian Pacific American Caucus (CAPAC)
• California State Treasurer Fiona Ma
• Assemblymember Evan Low, Chair of the California API Legislative Caucus • San Francisco District Attorney David Chiu

DATE:

Thursday, November 16
Welcome reception, dinner, and keynote remarks
4pm-8pm:

Friday, November 17
Breakfast, panel discussions, lunch, and a special discussion of our national launch
8am-5pm

PLACE:

ATTACHMENT 1

Hyatt Regency Embarcadero
5 Embarcadero Circle
San Francisco, CA 94111

REGISTRATION:

Please click here to register
Password:

**If you have requested hotel lodging, an email will be sent to confirm the request in the coming weeks. CALNET is an exclusive invite-only retreat for current AAPI elected officials. All functions including dinner, breakfast, lunch and breakouts may only be attended by registered attendees. To encourage an open environment for discussions, staff, colleagues, and spouses are not permitted to attend CALNET functions.

The theme of this year’s Retreat is: "United as One: Diversity, Equity, and Inclusion in the AAPI Community.”

As you know, CALNET is a statewide network of AAPI elected and appointed officials. It aims to help AAPI elected and appointed officials be the best public servants they can be by providing a network through which they learn from each other, collaborate, share best practices, and debate relevant and critical issues.

CALNET's Annual Leadership Retreat, now in its ninth year, is an invite-only event for current elected officials; with nearly five hundred invited to attend.

We are expanding our outreach to invite AAPI elected and appointed officials nationwide to discuss taking our annual retreat “national” to build a larger network of AAPI leaders from across the nation. At this year’s CALNET we are launching AAPI LEAD (Leadership Elected AppointeD), given the need for a national AAPI organization of AAPI elected and appointed officials. Remember we attended

NALEO a few years back to learn about their structure and the organization.

NALEO (National Association of Latino Elected and Appointed Officials) is providing advice and assistance in this effort.

To learn more about past retreats, please visit http://www.apalf.org/calnet.

Invite Flyer Below

NATIONAL API ELECTED OFFICIALS SUMMIT TENTATIVE AGENDA

Travel and Training FY 23-24 Budget Tracking for Council Training/Travel Event Total Remaining Balance
2,944.33$ 7,055.67$
1 Sacramento Annual Conf/Expo: Sept 20 - 22 $ 1,371.08 2 Washington DC National Advocacy Day:Oct 3 - 6 $ 1,573.25 Training/Travel Event Total Remaining Balance
$ 1,367.40 $ 8,632.60
1 Sacramento Annual Conf/Expo: Sept 20 - 22 $ 1,367.40 Training/Travel Event Total Remaining Balance
$ - $ 10,000.00 1 Training/Travel Event Total Remaining Balance
$ 1,406.69 $ 8,593.31
1 Sacramento Annual Conf/Expo: Sept 20 - 22 $ 1,406.69 Training/Travel Event Total Remaining Balance
$ - $ 10,000.00 1 FY23-24 Amount
Expended/Estimated
Mayor Montano
Councilmember Phan
Councilmember Lien
Vice Mayor Chua
Councilmember Barbadillo
FY23-24 Amount
Expended/Estimated
FY23-24 Amount
Expended/Estimated
FY23-24 Amount
Expended/Estimated
FY23-24 Amount
Expended/Estimated
ATTACHMENT 2

CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Authorize the City Manager to Negotiate and Execute an Extension of the Existing Sister Cities Memorandum of Understanding with the City of Dagupan, Philippines (Staff Contact: Matt Cano, Deputy City Manager (408-586-3012) Category: Leadership and Support Services
Meeting Date: 11/14/2023
Recommendation: Authorize the City Manager to negotiate and execute an extension of the existing Memorandum of Understanding with the City of Dagupan, Philippines for a period of five years with two additional five-year mutual options.

BACKGROUND:

The City of Milpitas and the City of Dagupan, Philippines, executed their first memorandum of understanding (MOU) on April 15, 2003, establishing a Sister City relationship to broaden cooperation and goodwill between the two cities, enrich cultural understanding, and create adult and student exchange opportunities. On December 17, 2019, the Milpitas City Council directed staff to approve a renewed Memorandum of Understanding with the City of Dagupan, Philippines, continuing the Sister City relationship for a period of five years.

ANALYSIS:

The City of Milpitas established a Sister Cities program on May 21, 1996. Through the years, the City maintained relationships with various international cities, but at the moment, the City’s only active relationship is with Dagupan, Philippines. Prior relationships with Huizhou, China, and Tsukuba, Japan, have expired. The current MOU with Dagupan will expire in December 2024.

A delegation from the City of Dagupan will visit Milpitas in late November 2023. Given the longstanding relationship between Milpitas and Dagupan, the City Council may wish to consider extending the existing MOU during the delegation’s visit. Staff recommends that the City Council delegate authority to the City Manager to prepare revised language and execute a new MOU to extend the Sister City relationship with Dagupan for an additional five years. A copy of the draft MOU is attached to this report for reference.

POLICY ALTERNATIVE(S):

As an alternative to this recommendation, the Mayor and City Council could decline to extend the MOU at this time and re-consider this decision in late 2024, once the existing MOU is set to expire.

FISCAL IMPACT:

As the MOU is currently in effect and the costs of the infrequent visits are being absorbed within staff’s existing workload, there are no fiscal impacts to this recommendation. However, future requests for additional sister cities relationships would have a fiscal impact and would need to be referred to the annual budget process for consideration.

California Environmental Quality Act (CEQA):

By the definition provided in the California Environmental Quality Act (CEQA) Guidelines Section 15378, this action does not qualify as a “project” for the purpose of CEQA as this action has no potential to result in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.

RECOMMENDATION:

Authorize the City Manager to negotiate and execute an extension of the existing Memorandum of Understanding with the City of Dagupan, Philippines for a period of five years with two additional five-year mutual options.

ATTACHMENT:
(a) Draft MOU with Dagupan

Attachment 1 – Draft
Memorandum of Understanding
*Note: Tracked changes are purposely shown as they are showing proposed edits from the current MOU approved by the City Council in 2019

DRAFT MEMORANDUM OF UNDERSTANDING

AGREEMENT FOR THE CONTINUATION OF A SISTER CITY RELATIONSHIP

BETWEEN THE CITY OF MILPITAS AND CITY OF DAGUPAN
WHEREAS, the Cities of Milpitas and Dagupan executed their first memorandum of understanding on April 15, 2003, establishing a Sister City relationship between the City of Milpitas and City of Dagupan to enrich cultural understanding, create adult and student exchange opportunities and broaden cooperation to encourage goodwill between the Cities, and;
WHEREAS, on December 17, 2019 the Milpitas City Council approved a five-year extension to this MOU;
WHEREAS, the City of Milpitas and City of Dagupan support the promotion of mutual understanding, expansion of official and non-governmental exchanges, and friendship through promotion of peace, stability and prosperity in the Asia-Pacific Region and the world at large, and;
WHEREAS, in order to consolidate and further develop the friendship and cooperation between the City of Dagupan and the City of Milpitas, both cities agree to continue the Sister City relationship on the following terms:

1. To promote common prosperity and development, both cities will organize, on the basis of equality, mutual benefit and goodwill, cultural exchanges, contacts to support an electronic "pen pal" program for students, and other information sharing that may include art, business, commerce, science, technology, culture, history, education, sports, public health and administration.

DAGUPAN CITY
On its behalf

CITY OF MILPITAS
On its behalf

2. Citizens, civic and business groups of each city are recognized as ambassadors of goodwill to organize cultural exchanges that may include art, history, education, health and sports interests, business and commerce, and other information sharing.

3. To the extent possible, one cultural exchange visit to each city shall be organized involving adults and students within the duration of this Memorandum of Understanding. Each visit shall be reviewed in advance between the Milpitas Sister Cities Commission and the City of Dagupan or its designee.

4. Cultural exchange visit details and activities shall be cooperatively agreed upon by organizing citizens and civic and business groups. Activities shall be provided with the objective to deepen cultural awareness and friendship between citizens, business leaders and government officials.

5. The leaders and top-level department administrators of both cities shall maintain and facilitate open channels of communication to expedite consultation, exchange and cooperation on questions and issues of common concern.

6. The effective term for this Memorandum of Understanding shall be for five years following the date of execution of the Memorandum, with two additional mutually agreeable five-year extension options, for a total potential term of up to fifteen years.

Prior to expiration of this Memorandum of Understanding, the Sister City Relationship shall be reviewed by the City of Milpitas Sister Cities Commission and City of Dagupan or its designee to evaluate the progress of the relationship, as well as recommend whether the relationship shall continue.

7. This agreement represents the entire agreement between the cities. It may not be changed or modified without a resolution signed by the leaders of both cities.

The City of Milpitas and City of Dagupan, by mutual agreement, hereby execute this renewed Memorandum of Understanding this 10 th ___ day of March _____ at Milpitas City Hall, California, United States of America. This agreement is for five years, set to expire on March 10, 2025.

Belen T. Fernandez, Mayor Carmen Montano, Mayor

CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Approve and Authorize the City Manager to Execute a Software License and Professional Services Agreement with TriTech Software Systems, Inc. for Computerized Maintenance Management System Subscription License Fees for a Total Amount Not-to-Exceed $374,105.21, Subject to the Annual Appropriation of Funds (Staff Contact: Christian Di Renzo, Public Works Director, 408-586-2602)
Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 11/14/2023
Recommendation: Approve and authorize the City Manager to execute a software license and professional services agreement with TriTech Software Systems, Inc. for computerized maintenance management system subscription license fees for a total amount not-to-exceed $374,105.21, subject to the annual appropriation of funds.

BACKGROUND:

On May 1, 2018, Council approved an agreement with Lucity, Inc. for software license and professional services to implement a new computerized maintenance management system (CMMS) for the Public Works Department. The system currently handles all aspects of Public Works Maintenance Management including, but not limited to: Fleet, Parks, Water, Sewer, Facilities, Storm Water, Streets, Pavement and Traffic assets. The system also integrates with the City’s MyMilpitas app to provide updates with residents on the status of work request and work orders.

On January 1, 2020, TriTech Software Systems, Inc. acquired Lucity, Inc and assumed performance of the software license and professional services agreement, effective July 6, 2020.

On July 29, 2020, the City executed Amendment No. 1 to include additional software and services for the additional compensation amount of $31,600.00 for the new not-to-exceed amount of $267,742.47.

The amendment changed the license structure of the agreement to allow all Public Works staff to have access to the CMMS in the field from any mobile device. The amendment also included additional tasks to set up and train staff on the use of the Fats, Oil, and Grease (FOG) module of the CMMS for inspections to maintain compliance with local, state, and federal regulations.

On November 2, 2021, the City executed Amendment No. 2 to add an additional 10 concurrent licenses at a one-time cost of $22,940.64 and annual maintenance cost of $2,940.64 this year and $4,000.00 the following year for the new not-to-exceed amount of $297,623.75. With the additional licenses, an increased number of staff in the Department were able to access the CMMS at the same time, improving customer service delivery.

ANALYSIS:

After approval of the first and second amendments to the contract with TriTech Software Systems, Inc., staff expanded the system to mobile devices. With the expansion of the use into the field, it became apparent that the 20 concurrent licenses for Public Works staff to share to access and make updates to work orders and asset data per the amended agreement was insufficient and did not allow for adequate number of staff to access and update workorders at the same time.

Therefore, staff is recommending approval of a new agreement with TriTech Software Systems, Inc. for a total not-to-exceed contract amount of $374,105.21 for the contract period of August 31, 2023, through August 30,2029. The new agreement would transition the department to an enterprise license account which will allow

all Public Works staff to unlimited licenses to access the CMMS in the field from any mobile device and office.

With unlimited licenses, all staff in the Department would be able to access the CMMS at the same time, improving customer service delivery and will assist Public Works lead workers and managers in reviewing, assigning, and prioritizing work requests which are originating from residents and businesses through MyMilpitas App or self-generated by City employees.

POLICY ALTERNATIVE(S):

Alternative 1: Do not approve and authorize the City Manager to execute the software license and professional services agreement with Central Square.

Pros: None.

Cons: The City would not be taking the additional steps needed to ensure all Public Works staff have access to the CMMS in the field for work orders, leading to loss of productivity for staff.

Reason for Not Recommending: The software license and professional services agreement would increase productivity for the staff and lead to better management of the City’s assets and regulatory compliance.

FISCAL IMPACT:

Sufficient funding is available in the Public Works Department operating budget. Ongoing renewal costs will need to be approved and appropriated by City Council on an annual basis, subject to the appropriation of funds.

Contract Term Amount
Year 1 8/31/23-8/30/24 $ 55,000.00
Year 2 8/31/24-8/30/25 $ 57,750.00
Year 3 8/31/25-8/30/26 $ 60,637.50
Year 4 8/31/26-8/30/27 $ 63,669.38
Year 5 8/31/27-8/30/28 $ 66,852.84
Year 6 8/31/28-8/30/29 $ 70,195.49
Not-to-Exceed Amount $374,105.21
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

The action has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment and is not a project pursuant to Pub. Resources Code, § 21065 and Cal. Code Regs., tit. 14, § 15378
RECOMMENDATION:

Approve and authorize the City Manager to execute a software license and professional services agreement with TriTech Software Systems, Inc. for computerized maintenance management system subscription license fees for a total amount not-to-exceed $374,105.21, subject to the annual appropriation of funds.

ATTACHMENT(S):
(a) Agreement

38077.00170\34144989.1 C2

CITY OF MILPITAS

SOFTWARE LICENSE AND PROFESSIONAL SERVICES AGREEMENT
This Software License and Professional Services Agreement (hereinafter referred to as “Agreement”) is made by and between the CITY OF MILPITAS, a California municipal corporation (herein “City”), and CentralSquare dba TriTech Software Systems Inc., a California corporation, having a principal place of business at 1000 Business Center Drive, Lake Mary, Florida 32746 (herein “Provider”) on this date of .

RECITALS
A. Provider is the owner of its proprietary software that the City has selected to use for the City’s Computerized Maintenance Management System (the “Software”).

B. Provider desires to grant to City and City desires to obtain from Provider a nonexclusive license to use the Software and obtain the services in accordance with the terms and on the conditions set forth in this Agreement.

AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

1. Use of the Software. Provider shall provide City with the software and services, which are described in the Provider’s Proposal and attached hereto as Exhibit “A” and incorporated herein by reference (“Software”). The specifications, performance and functionality of the Software shall comply in all respects with the requirements set forth in the Provider Proposal and any documentation for the Software (“Functional Requirements”). The City shall have a perpetual fully paid license to use the Software for its operations, subject to the payment of the license fees set forth in Exhibit “A.”

2. Services. Provider shall further provide City with implementation, installation, project management, and training services in connection with the implementation of the Software as further described in Exhibit “A” (“Services”).

3. Project Schedule. Provider shall provide the Software in a prompt and timely manner.

Any delays or changes in implementing the Software shall be subject to the terms of Section 7.

4. Compensation.
a. Subject to paragraph 4(b) below, the City shall pay for the Software, including the related Services, in accordance with the schedule of costs set forth in Exhibit “A.” b. In no event shall the total amount paid for the Software, including related services, rendered by Provider under this Agreement exceed the sum of Three Hundred Seventy-Four Thousand One Hundred Five Dollars and Twenty

38077.00170\34144989.1 C2
Cents ($374,105.20) unless there is a change in the scope of the Services and such change is reflected in the execution of a written amendment pursuant to Section 7 of this Agreement.
c. Payment to Provider shall be considered as full compensation for all personnel, materials, supplies, and equipment used in performing the Services. d. City’s failure to discover or object to any unsatisfactory work or billing prior to payment will not constitute a waiver of City’s right to request Provider to correct such work or billings or seek any other legal remedy.

5. Maintenance and Support Services. Following the warranty period for the Software, Provider has agreed to make maintenance and support services for the Software available to City in accordance with the terms of the Provider Proposal, which is attached hereto as Exhibit “A.” The Software Support and Maintenance Provisions contain mutually agreed upon pricing for such services, which pricing shall remain in effect for so long as City makes the payments set forth in Exhibit “A.”

6. Contract Documents. The following documents shall govern the performance of the Scope of Work and the terms and conditions for the provision of the Software and Services (collectively, the “Contract Documents”):
a. This Agreement;
b. Provider Proposal (Exhibit “A”); and
c. City Insurance Requirements (Exhibit “B”).

In the event of any conflict between the terms and conditions of the Contract Documents, the Contract Documents shall govern in accordance with the foregoing order of priority with this Agreement acting as the master agreement.

7. Additional Work. If changes in the Project and the Contract Documents seem merited by Provider or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Provider with a statement of the estimated changes in the Provider Proposal. An amendment to the Agreement shall be prepared by the City and executed by both parties before any change becomes binding upon City.

Provider acknowledges that any material amendment to the Contract Documents, particularly with respect to the schedule of charges in the Provider Proposal, may be subject to approval by the City Council. Such amendment shall not render ineffective or invalidate unaffected portions of the Contract Documents.

8. Maintenance of Records. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Provider and made available at all reasonable times during the Agreement period and for four (4) years from the date of final payment under the Agreement for inspection by the City.

38077.00170\34144989.1 C2

9. Notice to Proceed. The obligations of Provider to commence performance shall by triggered by Provider’s receipt of notice from the City to proceed. Thereafter, Provider shall proceed in accordance with the Project Schedule. The Notice to Proceed shall set forth the date of commencement of the Project Schedule.

10. Delays in Performance.
a. Neither the City nor Provider shall be considered in default of the Contract Documents for delays in performance caused by circumstances beyond the reasonable control of the non-performing party. For purposes of this Agreement, such circumstances include but are not limited to: abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint.
b. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance under the Contract Documents. It is not intended by the parties that any such delay shall extend for a period in excess of sixty (60) days.

11. Confidentiality. Provider understands and agrees that, in the performance of the work or services under this Agreement may involve access to City data or information that is Confidential Information. Provider agrees to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third-parties other than its employees, agents, or authorized subcontractors who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. Provider and any subcontractors or agents shall use Confidential Information only in accordance with all applicable local, state and federal laws restricting the access, use and disclosure of Confidential Information and only as necessary in the performance of this Agreement. Provider’s failure to comply with any requirements of local, state or federal laws restricting access, use and disclosure of Confidential Information shall be deemed a material breach of this Agreement, for which City may terminate the Agreement. Provider agrees to advise and require its respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential. Provider will not disclose any Confidential Information of City except as compelled by a court or administrative body or required by any law or regulation. Provider will give notice if any disclosure request is received for City’s Confidential Information, so City may file an objection with the relevant court or administrative body.

12. Compliance with Law.
a. In carrying out its obligations under the Contract Documents, Provider shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including but not limited to Cal/OSHA requirements

38077.00170\34144989.1 C2
and requirements for verification of employees' legal right to work in the United States.
b. If required, Provider shall assist the City, as requested, in obtaining and maintaining all permits required of Provider by federal, state and local regulatory agencies.
c. Provider is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Provider agrees to fully comply with such Prevailing Wage Laws. Provider shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Provider and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Section 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). 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. d. If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Provider and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Provider shall maintain registration for the duration of the Agreement and require the same of any subconsultants, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Provider’s sole responsibility to comply with all applicable registration and labor compliance requirements. 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. e. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Provider’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Provider or any subconsultant that affect Provider’s performance of Services, including any delay, shall be Provider’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Provider caused delay and shall not be compensable by the City. Provider shall defend, indemnify and hold the City, its

38077.00170\34144989.1 C2
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 Provider or any subconsultant.

13. Warranty
a. Software Warranty. Provider warrants that the Software will conform in all material respects to the Functional Requirements for a period of twenty-four (24) months (“Warranty Period”) following the date upon which the Software has completed user acceptance testing and is placed in use by City in a live production environment (“Go-Live”). Provider agrees to correct or replace, at no charge, any nonconformity of which it receives notice during the Warranty Period. In addition, Provider warrants that any customization and/or error correction to the Software will conform in all material respects to the Functional Requirements.

This warranty is void if the City or any other third party intentionally changes or modifies the Software without the permission of Provider. b. Malware. Provider warrants that the Software shall not contain any lock, counter, CPU reference, virus, worm, or other malware or device capable of halting operations or erasing or altering data or programs. Provider further warrants that neither it, nor its agents, employees, or subcontractors shall insert any shutdown device following delivery of the Software (or any hardware) or Services. c. Service Warranty. Provider warrants that all Services provided under this Agreement will be performed in a professional, competent and workmanlike manner in accordance with the requirements of the Project Schedule. City shall notify Provider in writing of any breach of this warranty no later than ninety (90) days following Go-Live. Provider shall further provide a sufficient number of properly trained and competent staff to carry out the Services in a skilled and professional manner consistent with the best practices in the software industry and in compliance with the Project Schedule.
d. Remedies. Provider covenants that it will make corrections of program malfunctions or errors which are reported in writing to Provider during the Warranty Period and which are necessary for the Software to conform to the warranties set forth in Section 13 of this Agreement. City agrees to allow Provider the opportunity to make repeated efforts within a thirty (30) day time period to correct programming errors or malfunctions as warranted in this Agreement.

Provider agrees that program malfunctions that result in an inoperable system resulting in a financial impact to the City, or inefficient work-around, will be given its highest priority with the problem corrected as soon as practicably possible, consistent with a high priority item under the Software Support and Maintenance Provisions, using its most experienced and knowledgeable resources. Provider will strive to have any and all malfunctions resolved within no more than five calendar days.

14. Acceptance Testing; Final Acceptance. All Software and Services shall be subject to acceptance testing by City to verify, to its reasonable satisfaction, that each deliverable

38077.00170\34144989.1 C2
conforms to the requirements of a particular phase or milestone as set forth in the Exhibit “A” hereto or with respect to the Software, that it conforms to the Functional Requirements in all material respects and does not contain errors. City and Provider will agree on a reasonable testing methodology for the Software. Acceptance testing will not begin for any deliverable until sufficient data, as reasonably determined by City, has been converted and loaded into the Software or component thereof to enable City to test the functionality of the Software or any component thereof in a test environment that approximates a live production environment. If City determines that any Software deliverable or Services do not conform with the foregoing requirements, City shall promptly deliver to Provider a notice of non-conformity, and Provider shall work diligently to correct all nonconformities free of charge to City by issuing one or more error corrections or re-performing the defective Services. Each error correction shall be subject to additional acceptance testing by City. Notwithstanding the acceptance of any deliverable by City, such deliverable shall remain subject to the warranty obligations of Provider for the entire Warranty Period. “Final Acceptance” shall occur ninety (90) days after Go-Live provided that the Software is operating properly in accordance with all of the Functional Requirements and there are no material warranty issues that adversely impact the ability of City to operate the Software.

15. Assignment and Subcontractors. Provider shall not subcontract, assign or transfer this Agreement or any rights under or interest in the Contract Documents without the written consent of the City, which may be withheld for any reason at the sole discretion of the City. Nothing contained herein shall prevent Provider from employing independent contractors, as well as employees, to provide Services as Provider may deem appropriate, provided, however, that Provider shall remain fully responsible for such independent contractors.

16. Independent Contractor.
a. Provider enters into this Agreement as an independent contractor and not as an employee of the City. The Provider shall have no power or authority by this Agreement to bind the City in any respect. Nothing in this Agreement shall be construed to be inconsistent with this relationship or status. All employees, agents, contractors or subcontractors hired or retained by the Provider are employees, agents, contractors or subcontractors of the Provider and not of the City. The City shall not be obligated in any way to pay any wage claims or other claims made against Provider by any such employees, agents, contractors subcontractors, or any other person resulting from performance of this Agreement. b. Provider agrees it has satisfied itself by its own investigation and research regarding the conditions affecting the work to be done and labor and materials needed, and that its decision to execute this Agreement is based on such independent investigation and research.

17. Integration. The Contract Documents represent the entire understanding of the City and Provider as to those matters contained herein, and supersedes and cancels any prior oral or written understanding, promises or representations with respect to those matters

38077.00170\34144989.1 C2
covered hereunder. This Agreement may not be modified or altered except in writing signed by both parties hereto. This is an integrated Agreement.

18. Title to Software. Provider represents and warrants that it is the sole owner of the Software or, if not the owner, that it has received all legally required authorizations from the owner to license the Software as contemplated herein, has the full power to grant the rights required by this Agreement, and that neither the Software, nor its use in accordance with the Contract Documents, will violate or infringe upon any patent, copyright, trade secret, or any other property rights of another person or City.

19. Infringement and Performance Breach Remedies. If it is claimed that any work furnished by Provider, whether first developed by Provider for the City or not, infringes any intellectual property right or is otherwise unlawful, Provider agrees to defend or settle any such claim or suit at Provider’s expense and to indemnify and hold the City harmless from any losses, damages or harm, including attorney’s fees and legal expenses, incurred as a result of such claim. Without the City’s prior written approval, Provider shall not accept any liability on the City ’s behalf for the infringement, nor shall Provider reach a settlement that from the City perspective impairs the value or usefulness of the work that is the subject of the infringement claim. Provider will also pay all damages and costs that by final judgment, settlement or other resolution are assessed against the City due to such alleged or proven infringement and reimburse the City for any direct damages suffered by the City as a result of the infringement claim, including but not limited to attorney’s fees.

Should Provider find, or be found, to have infringed on any intellectual property rights, Provider will procure; (i) a right for the City to continue using the applicable Software or Work Product, (ii) a solution to mitigate the infringement, or (iii) a product to replace the infringing product that provides the functionality and complies with the specifications contained in the Contract Documents. The City shall not incur any additional costs related to the aforementioned remedies.

20. Termination
a. Termination for Default. Subject to the right to cure contained in Section 20.b., the City may terminate this Agreement in whole or in part, at any time that the City determines that Provider is in material default of its obligations under the Contract Documents. Termination for default is effective on the date specified in the City’s written notice of default. Should Provider fail to cure a default, then in addition to any other remedies provided by law or the Contract Documents, Provider shall compensate the City’s actual costs to obtain substitute performance. A termination for default shall be deemed a termination for convenience if the termination for default is later found to be without justification. b. Cure. Provider shall have a period of ten (10) days following a written notice of default to either cure such default or if such default cannot be cured within such period, to provide evidence satisfactory to City, in its sole discretion, that Provider is taking action to cure such default.
c. Termination for Convenience. This Agreement may be terminated by the City, in whole or in part, upon thirty (30) days written notice to Provider, when the City

38077.00170\34144989.1 C2
determines this to be in its best interest. The termination for convenience is effective on the date specified in the City’s written notice. Termination for convenience may entitle Provider to payment for reasonable costs allocable to the Contract Documents for work or costs incurred by Provider up to the date of termination. Provider shall not be paid compensation as a result of a termination for convenience that exceeds the amount payable under the schedule of charges in Exhibit “A.”
d. Termination for Non-Appropriation. City’s payment obligation under this Agreement extends only to funds appropriated annually by City’s governing body for the purpose of this Agreement. For each succeeding fiscal period covered by this Agreement, City’s applicable department responsible for this Agreement agrees to include in its budget request appropriations sufficient to cover the annual financial obligations under this Agreement. However, City’s governing body has no obligation to make appropriations for the Agreement in lieu of appropriations for new or other contracts. If City is appropriated insufficient funds to continue annual payments under this Agreement, City may terminate this Agreement effective upon the last day of the fiscal year for which funds were appropriated. Upon termination under this paragraph, Provider shall be entitled to compensation for all services rendered prior to the effective termination date. Provider’s assumption of risk of possible non-appropriation is a part of the consideration for the Agreement. This Section controls against any and all other provisions of the Agreement. e. Software License. If there is a termination for any reason, the City shall have the right to elect to (i) retain and use any Software for which City has paid the license fee to Provider; or (ii) return and discontinue use of such Software in exchange for a refund of such license fee.

21. Indemnification. Provider shall indemnify, defend (with counsel approved by City), and hold harmless the City, its officers, officials, agents, and employees (collectively, the “Indemnitees”) from and against any and all claims, damages, demands, liability, costs, losses and expenses, (all of the foregoing collectively “Claims”), including without limitation court costs and reasonable attorneys’ fees, which directly or indirectly, in whole or in part, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by, Provider’s performance of services pursuant to this Agreement, including without limitation, Claims arising on account of injury to or death of persons or damage to property. City does not and shall not waive any rights against Provider which City may have pursuant to this Section because of Provider’s provision of insurance policies required by this Agreement. Provider’s obligations to defend and indemnify the City shall survive the expiration or termination of this Agreement. Provider shall not be required to indemnify City for Claims arising from the sole negligence or willful misconduct of the Indemnitees.

22. Conflicts of Interest.
a. Provider covenants that neither it, nor any of its employees, agents, contractors, or subcontractors has any present interest, nor shall they acquire any interest, direct

38077.00170\34144989.1 C2
or indirect, in the subject of the Agreement, nor any other interest which would conflict in any manner or degree with the performance of its Services hereunder. b. Provider shall make all disclosures required by the City’s conflict of interest code in accordance with the category designated by the City, unless the City’s Contract Administrator determines in writing that Provider’s duties are more limited in scope than is warranted by the category designated by the City code and that a narrower disclosure category should apply. Provider also agrees to make disclosure in compliance with the City conflict of interest code if, at any time after the execution of this Agreement, City determines and notifies Provider in writing that Provider’s duties under this Agreement warrant greater disclosure by Provider than was originally contemplated. Provider shall make disclosures in the time, place and manner set forth in the conflict of interest code and as directed by the City.

23. Liability of Contractor. Provider shall be responsible for performing the services under this Agreement in a manner which is consistent with the generally-accepted standards of the Provider’s profession and shall be liable for its own negligence and the negligent acts of its employees, agents, contractors and subcontractors. The City shall have no right of control over the manner in which the work is to be done but only as to its outcome, and shall not be charged with the responsibility of preventing risk to Provider or its employees, agents, contractors or subcontractors.

24. Insurance.
a. Provider will comply with the “Insurance Requirements” of City which are attached hereto as Exhibit “B” and included as a part of this Agreement. b. No limitation on liability contained in the Contract Documents shall apply to any third party claim for personal injury or wrongful death arising from the negligent acts or willful misconduct of either party, its agents or assigns. Furthermore, no limitation on liability applicable to Provider shall apply to any third party claim that the Software infringes upon the intellectual property rights of another party, nor to the obligation of Provider to deliver the Software and Services in accordance with the Scope of Work and Provider’s warranty obligations.

25. Laws, Venue, and Attorneys’ Fees. This Agreement shall be governed by the laws of the State of California. Any litigation regarding this Agreement or its contents shall be filed in a state or federal court situated in the County of Santa Clara, State of California.

26. Documents. Provider shall deliver to City no less than one (1) full set of documentation, manuals, and training materials for the Software. City shall have the right to copy such documents and materials for its own internal use of the Software.

27. Project Manager. Provider shall assign Jakea Simons as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.

38077.00170\34144989.1 C2

28. Notice. Any notice or instrument required to be given or delivered by this Agreement may be given or delivered in person or sent via commercial overnight delivery or by certified mail, addressed to each party at the address set forth below or such other address for which a party has given notice in accordance with this section. Notice will be effective upon receipt, or within five (5) days of delivery.

City:

City of Milpitas
455 E. Calaveras Blvd.

Milpitas, California 95035
Attn: City Manager
Provider:

TriTech Software Systems Inc.
1000 Business Center Drive
Lake Mary, Florida 32746
Attn: Jakea Simons

29. City Not Obligated to Third Parties. City shall not be obligated or liable for payment hereunder to any party other than the Provider.

30. Non-Discrimination. Provider shall not discriminate in any way against any person on the basis of race, color, religious creed, national origin, ancestry, sex, sexual orientation, age, physical handicap, medical condition or marital status in connection with, or related to, the performance of this Agreement.

31. Prohibited Interests. Provider maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Provider, to solicit or secure this Agreement. Further, Provider warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Provider, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement.

For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

32. Unauthorized Aliens. Provider hereby promises and agrees to comply with all the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. § 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Provider so employ such unauthorized aliens for performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Provider hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by City.

33. Wage Theft Prevention.
a. Provider, and any subcontractor it employs to complete Services under this Agreement, 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.

38077.00170\34144989.1 C2
b. BY SIGNING THIS AGREEMENT, PROVIDER 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 AGREEMENT THAT

PROVIDER OR ITS SUBCONTRACTORS HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS. PROVIDER FURTHER AFFIRMS THAT IT OR ITS

SUBCONTRACTOR(S) HAS EITHER FULLY SATISFIED EACH JUDGMENT,

DECISION OR ORDER, OR, IF ANY JUDGMENT, DECISION OR ORDER HAS

NOT BEEN FULLY SATISFIED, PROVIDER 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 PROVIDER OR ITS SUBCONTRACTOR(S) ARE IN COMPLIANCE WITH SAID PLAN AS OF THE DATE OF EXECUTING THIS AGREEMENT.
c. If at any time during the term of this Agreement, a court or investigatory government agency issues a final judgment, decision or order finding that Provider or a subcontractor it employs to perform work under this Agreement has violated any applicable wage and hour law, or Provider learns of such a judgment, decision, or order that was not previously disclosed in its bid/proposal, Provider 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.

Provider 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 Provider or its subcontractor is subject to a payment or other alternative plan, the Provider or its subcontractor shall continue to submit documentary evidence every thirty (30) calendar days during the term of the Agreement 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 Agreement. Such breach may serve as a basis for immediate termination of this Agreement and/or any other remedies available under this Agreement 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 Agreement and, accordingly, only notice provided to the above address satisfies the notice requirements

38077.00170\34144989.1 C2
in this Section.

34. Severability. The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal.

35. Counterparts. This Agreement and any exhibits, amendments or renewals hereto may be executed in a number of counterparts, and each counterpart signature, when taken with the other counterpart signatures, is treated as if executed upon one original of this Agreement or any amendment or renewal. A signature by any party to this Agreement provided by facsimile or electronic mail is binding upon that party as if it were the original.
[Signatures on following page]

38077.00170\34144989.1 C2
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

CITY OF MILPITAS
Approved By:

CentralSquare dba TriTech Software
Systems Inc.

Ned Thomas, City Manager Signature
Date
Approved As To Form:

Name
Title
Michael Mutalipassi, City Attorney
Approved:

Date
Lauren Lai, CPA, MPA
Finance Director/Risk manager
Approved As To Content:

Christian Di Renzo, Public Works Director

EXHIBIT A

SOFTWARE SERVICES
Provider will continue the software license and professional services for the Computerized Maintenance Management System Software .

This agreement includes the subscription and professional services for the following:

Product: Product Name
Enterprise Asset Management Bundled-On Premise Site License Annual Subscription
Asset Management - Asset Subscription Option On Premise Asset Management - Work Subscription Option On Premise
Asset Management - GIS Desktop Subscription Option On Premise Asset Management - GIS Web Subscription Option On Premise Asset Management - Mobile Subscription Option On Premise Asset Management - Citizen Portal Subscription Option On Premise Asset Management - Rest API's Option Subscription On Premise This agreement is for the term of August 31, 2023 through August 30, 2029 and will be invoiced annually per the Annual Renewal Schedule.
[Annual Renewal Schedule on the Following Page]
14

Account: Account Name Product: Product Name Quantity Start Date End Date Net Total Start Date End Date Net Total Start Date End Date Net Total Start Date End Date Net Total Start Date End Date Net Total Start Date End Date Net Total Milpitas, CA Enterprise Asset Management Bundled-On Premise Site License Annual Subscript 1 8/31/2023 8/30/2024 USD 55,000.00 8/31/2024 8/30/2025 USD 57,750.00 8/31/2025 8/30/2026 USD 60,637.50 8/31/2026 8/30/2027 USD 63,669.38 8/31/2027 8/30/2028 USD 66,852.84 8/31/2028 8/30/2029 USD 70,195.49 Milpitas, CA Asset Management - Asset Subscription Option On Premise 1 8/31/2023 8/30/2024 USD 0.00 8/31/2024 8/30/2025 USD 0.00 8/31/2025 8/30/2026 USD 0.00 8/31/2026 8/30/2027 USD 0.00 8/31/2027 8/30/2028 USD 0.00 8/31/2028 8/30/2029 USD 0.00 Milpitas, CA Asset Management - Work Subscription Option On Premise 1 8/31/2023 8/30/2024 USD 0.00 8/31/2024 8/30/2025 USD 0.00 8/31/2025 8/30/2026 USD 0.00 8/31/2026 8/30/2027 USD 0.00 8/31/2027 8/30/2028 USD 0.00 8/31/2028 8/30/2029 USD 0.00 Milpitas, CA Asset Management - GIS Desktop Subscription Option On Premise 1 8/31/2023 8/30/2024 USD 0.00 8/31/2024 8/30/2025 USD 0.00 8/31/2025 8/30/2026 USD 0.00 8/31/2026 8/30/2027 USD 0.00 8/31/2027 8/30/2028 USD 0.00 8/31/2028 8/30/2029 USD 0.00 Milpitas, CA Asset Management - GIS Web Subscription Option On Premise 1 8/31/2023 8/30/2024 USD 0.00 8/31/2024 8/30/2025 USD 0.00 8/31/2025 8/30/2026 USD 0.00 8/31/2026 8/30/2027 USD 0.00 8/31/2027 8/30/2028 USD 0.00 8/31/2028 8/30/2029 USD 0.00 Milpitas, CA Asset Management - Mobile Subscription Option On Premise 1 8/31/2023 8/30/2024 USD 0.00 8/31/2024 8/30/2025 USD 0.00 8/31/2025 8/30/2026 USD 0.00 8/31/2026 8/30/2027 USD 0.00 8/31/2027 8/30/2028 USD 0.00 8/31/2028 8/30/2029 USD 0.00 Milpitas, CA Asset Management - Citizen Portal Subscription Option On Premise 1 8/31/2023 8/30/2024 USD 0.00 8/31/2024 8/30/2025 USD 0.00 8/31/2025 8/30/2026 USD 0.00 8/31/2026 8/30/2027 USD 0.00 8/31/2027 8/30/2028 USD 0.00 8/31/2028 8/30/2029 USD 0.00 Milpitas, CA Asset Management - Rest API's Option Subscription On Premise 1 8/31/2023 8/30/2024 USD 0.00 8/31/2024 8/30/2025 USD 0.00 8/31/2025 8/30/2026 USD 0.00 8/31/2026 8/30/2027 USD 0.00 8/31/2027 8/30/2028 USD 0.00 8/31/2028 8/30/2029 USD 0.00 Sum USD 55,000.00 USD 57,750.00 USD 60,637.50 USD 63,669.38 USD 66,852.84 USD 70,195.49Total Count 8
Grand Total USD 319,105.20
This is a budget estimate provided as of 10/11/2023. This estimate can change if additional products are purchased , or pricing changes prior to your renewal period.

Budget Report

EXHIBIT B

INSURANCE REQUIREMENTS
Please refer to the insurance requirements listed below. Those that have an “X” indicated in the space before the requirement apply to Contractor’s or Consultant’s Agreement.

Contractor or Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor or Consultant, its agents, representatives, employees or subcontractors.

Contractor or Consultant shall provide its insurance broker(s)/agent(s) with a copy of these requirements and request that they provide Certificates of Insurance complete with copies of all required endorsements.

Contractor or Consultant shall furnish City with copies of original endorsements affecting coverage required by this Exhibit B. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements and certificates are to be received and approved by City before work commences. City has the right to require Contractor’s or Consultant’s insurer to provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications.

Commercial General Liability (CGL):

Coverage at least as broad as Insurance Services Office (“ISO”) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $2,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
_X Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $1,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $5,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

Automobile Liability:
_X Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), of if Contractor or Consultant has no owned autos, Code 8 (hired) and 9 (non-owned), with limits no less than $1,000,000.00 combined single limit for bodily injury and property damage.

Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), with limits no less than $5,000,000.00 combined single limit for bodily injury and property damage.

Garage keepers’ extra liability endorsement to extend coverage to all vehicles in the care, custody and control of the Contractor or Consultant, regardless of where the vehicles are kept or driven.

Professional Liability (Errors and Omissions):
_X Insurance appropriates to the Contractor or Consultant’s profession, with limit no less than $1,000,000.00 per occurrence or claim, $2,000,000.00 aggregate. (If Design/Build), with limits no less than $1,000,000.00 per occurrence or claim, and $2,000,000.00 policy aggregate.

Insurance appropriates to the Contractor or Consultant’s profession, with limit no less than per occurrence or claim, aggregate
Workers’ Compensation Insurance:
_X Insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000.00 per accident for bodily injury or disease. (Not required if Contractor or Consultant provides written verification it has no employees)
The Employer’s Liability policy shall be endorsed to waive any right of subrogation as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees.

Builder’s Risk (Course of Construction):

Insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. If the project does not involve new or major reconstruction, at the option of the City, an Installation Floater may be acceptable. For such projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site.

Contractor’s or Consultant’s Pollution Legal Liability:

Contractor’s or Consultant’s pollution legal liability and/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards) with limits no less than $1,000,000.00 per occurrence or claim and $2,000,000.00 policy aggregate.

If the Contractor or Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor or Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.

Cyber Liability Insurance
_X Cyber Liability Insurance with limits not less than $1,000,000 per claim.

Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Contractor or Consultant in this Agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion, and network security.

The policy shall provide coverage for breach response costs as well as regulatory fines and penalties, and credit monitoring expenses with limits sufficient to respond to these obligations.

Surety Bonds:

Contractor shall provide the following Surety Bonds:

Bid Bond
Performance Bond
Payment Bond
The Payment Bond and Performance Bond shall be in a sum equal to the contract price. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California.

Other Insurance Provisions:

The insurance policies are to contain, or be endorsed to contain the following provisions:
_X Additional Insured Status and Primary/Non-Contributory Language:

Contractor’s general liability and automobile liability policies shall be primary and shall not seek contribution from the City’s coverage and be endorsed to add the City and its officers, officials, employees, and agents as additional insureds under such policies using Insurance Services Office form CG 20 10 (or equivalent) on the general liability policy. For construction projects, an endorsement providing completed operations coverage for the additional insured on the general liability policy, ISO form CG 20 37 (or equivalent), is also required.

The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non- contributory basis for the benefit of City (if agreed to in a written contract or agreement) before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

Loss Payee Status – Builder’s Risk/Course of Construction Insurance (applicable to Construction Contracts only)
Contractor or Consultant may submit evidence of Builder’s Risk insurance in the form of Course of Construction coverage. Such coverage shall name the City as a loss payee as their interest may appear.
_X Notice of Cancellation, Suspension or Otherwise Voiding Policies:

Each insurance policy required above shall contain or be endorsed to contain that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except with thirty (30) days’ prior written notice by certified mail, return receipt requested to the City.

_X Waiver of Subrogation:

Contractor or Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Contractor or Consultant may acquire against the City by virtue of the payment of any loss under such insurance. Contractor or Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.

The Workers’ Compensation Policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by Contractor or Consultant, its employees, agents and subcontractors.

Completed Operations
For Construction Agreements, Contractor shall maintain insurance as required by this Agreement to the fullest amount allowed by law and shall maintain insurance for a minimum of five (5) years following the completion of this project. In the event Contractor fails to obtain or maintain completed operations coverage as required by this Agreement, the City at its sole discretion may purchase the coverage required and the cost will be paid by Contractor.

THE FOLLOWING PROVISIONS APPLY TO ALL AGREEMENTS
Deductibles and Self-Insured Retentions (“SIR”):

Any deductibles or self-insured retentions must be declared to and approved by City. The City may require the Contractor or Consultant to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees; or (2) the Contractor or Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.

All SIRs must be disclosed to Risk Management for approval and shall not reduce the limits of liability.

Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the City.

City reserves the right to obtain a full-certified copy of any insurance policy and endorsements.

Failure to exercise this right shall not constitute a waiver of right to exercise later.

Acceptability of Insurers:

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A-VII, unless otherwise acceptable to City.

Claims Made Policies: (note - should be applicable only to professional liability, see below)

1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.

2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of contract of work.

3. If coverage is canceled or non-renewed, and not replaced with another claims- made policy form with a Retroactive Date prior to the contract effective date, the Contractor or Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.

4. A copy of the claims reporting requirements must be submitted to the City for review.

5. If the services involve lead-based paint or asbestos identification/remediation, the Contractor’s Pollution Liability Policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractors Pollution Liability Policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.

Subcontractors:

Contractor or Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors.

Subcontractor agrees to be bound to Contractor and City in the same manner and to the same extent as Contractor is bound to City under this Agreement and any other contract documents.

Subcontractor further agrees to include the same requirements and provisions of this Agreement, including the indemnity and insurance requirements, with any sub-subcontractor to the extent they apply to the scope of the sub-subcontractor’s work. A copy of the City indemnity and insurance provisions will be furnished to the subcontractor upon request.

Verification of Coverage:

Contractor or Consultant shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor or Consultant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances.

Failure to Comply:

Each insurance policy required above shall contain or be endorsed to contain that any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected and appointed officials, officers, attorneys, agents, and employees.

Applicability of Coverage:

Each insurance policy required above shall contain or be endorsed to contain that the Contractor’s or Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Report on Bids and Adopt a Resolution Authorizing the City Manager to Award the Construction Contract to I & A Contractor, Inc. in the Amount of $428,300.00 for the Sports Center Roof Rehabilitation Project (Staff Contact:

Christian Di Renzo, Public Works Director, 408-586-2602) Category: Public Hearings-Community Services and Sustainable Infrastructure Meeting Date: 11/14/2023
Recommendation: (1) Receive report on bids and adopt a resolution authorizing the City Manager to award a construction contract to the lowest responsible and responsive bidder, I & A Contractor, Inc., in the amount of $428,300.00 for the Sports Center Roof Rehabilitation Project; and
(2) Authorize the City Manager to negotiate and execute contract change order(s) in an aggregate amount not to exceed $64,245.00 for the Sports Center Roof Rehabilitation Project.

BACKGROUND:

The roof at the Milpitas Sports Center is over 30 years old and nearing the end of its useful life requiring rehabilitation. In addition to the roof rehabilitation, replacement of HVAC duct work will also be required to meet California Title 24 Building Energy Efficiency Standards requirements. Commonly referred to as Title 24, these standards were adopted to ensure new and existing buildings achieve energy efficiency and preserve outdoor and indoor environmental quality. Specifically related to this project, Title 24 contains requirements for the types of roofing materials used in new construction or re-roofing projects.

ANALYSIS:

On September 19, 2023, the City issued an Invitation for Bid (IFB) 24-029 for the Sports Center Roof Rehabilitation Project. The IFB was publicly noticed in accordance with the City’s municipal code and advertised on the City’s website. Email notifications were sent to companies registered with the City via ProcureNow.com, the City’s eProcurement system. A mandatory bid walk was held on September 27, 2023, with nineteen (19) contractors in attendance. Seven (7) bids were received at the bid close on October 24, 2023, ranging from $428,300.00 to $989,000.00.
# Contractor Base Bid
1 I & A Contractor, Inc. $428,300.00
2 Foothill Air Conditioning and Heating, Inc. $495,700.00 3 Valhalla Builders $504,200.00
4 Pioneer Contractors, Inc. $515,000.00
5 Best Contracting Services, Inc. $694,760.00
6 Brazos $774,200.00
7 One Day Installation & Repairs, Inc. $989,000.00
After reviewing the required bid documents, I & A Contractor, Inc. was the lowest responsible bidder submitting a responsive bid. The bid submitted was within the City’s estimate for these services.

Staff is requesting authority to execute change order contingencies related to this project for the not-to-exceed amount of $64,245.00 (15% of base bid). This authority will allow for more effective administration and timely

completion of the repairs outlined in this project caused by unexpected discovery of other issues that may arise during the project.

Staff recommends the City Council award the contract for the Project to I & A Contractor, Inc. for the base bid amount of $428,300.00 and authorize the City Manager to execute contract change orders in an aggregate amount not-to-exceed $64,245.00.

POLICY ALTERNATIVE(S):

Alternative 1: Direct City staff to reject all bids and not proceed with the project.

Pros: The City would be able to use the $428,300.00 for other projects.

Cons: Rejecting all bids and deferring the rehabilitation of the Sports Center roof could later result in further structural damage to the facility.

Reason for Not Recommending: Not proceeding with the project would defer improvements that would update the facility to meet California Title 24 Building Energy Efficient Standards requirements.

FISCAL IMPACT:

Funding source is from the Capital Improvement Project No. 3422 - City Building Roofing Repairs for this project.

As of November 6, 2023, the balance in CIP 3422 is $923,257.83.

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

The project entails the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use and is exempt from CEQA pursuant to Cal. Code Regs., tit. 14, § 15301.

RECOMMENDATION:
(1) Receive report on bids and adopt a resolution authorizing the City Manager to award a construction contract to the lowest responsible and responsive bidder, I & A Contractor, Inc., in the amount of $428,300.00 for the Sports Center Roof Rehabilitation Project; and (2) Authorize the City Manager to negotiate and execute contract change order(s) in an aggregate amount not to exceed $64,245.00 for the Sports Center Roof Rehabilitation Project.

ATTACHMENT(S):
(a) Resolution
(b) Agreement

I RESOLUTION No. _____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS AWARDING A CONSTRUCTION CONTRACT TO I & A CONTRACTOR, INC. FOR THE

REHABILITATION OF THE MILPITAS SPORTS CENTER ROOF PROJECT WHEREAS, City Milpitas Municipal Code Section I-2-3.08 (“Formal Bid Procedures”) authorizes the City Council to award construction contracts to the responsible bidder, whose proposal is determined in writing to be the most advantageous to the City, taking into consideration, price, value, and the evaluation factors set forth in the request for proposals; and WHEREAS, Capital Improvement Program Project No. 3422 - Building Roofing Repairs is an approved project which provides for the assessment, design, and construction of improvements to City facilities in the adopted 2024-2028 Capital Improvement Program (CIP) budget; and WHEREAS, the Milpitas Sports Center is a City facility that offers full-service fitness programs and amenities including a gym, pools, and dance studios; and WHEREAS, the roof at the Milpitas Sports Center is nearing the end of its useful life and requires rehabilitation; and
WHEREAS, the Public Works Department identified the need for a qualified contractor to conduct the roofing and related HVAC duct work; and
WHEREAS, in accordance with the bidding requirements under the California Uniform Public Construction Cost Accounting Act and Public Contracting Code, the Project was advertised for bid on September 19, 2023, in accordance with the bidding requirements; and WHEREAS, the Purchasing Agent has determined that lowest responsible bidder submitting a responsive bid is I & A Contractor, Inc., in the base bid amount of $428,300.

NOW, THEREFORE, the City Council of the City of Milpitas hereby finds, determines, and resolves as follows:

1. The City Council has duly considered the full record before it, which may include but is not limited to such things as the City staff report, testimony by staff and the public, and other materials and evidence submitted or provided to it. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.

2. The City Council authorizes the City Manager to award a construction contract to I & A Contractor, Inc. in the Amount of $428,300.00 for the Sports Center Roof Rehabilitation Project.

3. The City Council of the authorizes the City Manager to negotiate and execute contract change order(s) in an aggregate amount not to exceed $64,200.00 for the Sports Center Roof Rehabilitation Project.

PASSED AND ADOPTED this day of , 2023, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:

Suzanne Guzzetta, City Clerk Carmen Montano, Mayor
APPROVED AS TO FORM:

Michael Multalipassi, City Attorney

38077.00180\29080232.10 C2

CITY OF MILPITAS

MILPITAS, CALIFORNIA

CONTRACT DOCUMENTS AND SPECIFICATIONS FOR

SPORTS CENTER ROOF REHABILITATION PROJECT
24-029

38077.00180\29080232.10 C2

TABLE OF CONTENTS
Page
-i- 00 11 16 – NOTICE INVITING BIDS
00 11 16 – NOTICE INVITING BIDS............................................................................................1 00 21 13 – INSTRUCTIONS TO BIDDERS .................................................................................4 00 41 43 – BID FORMS .............................................................................................................13 00 52 13 – CONTRACT .............................................................................................................34 00 61 13 – BOND FORMS .........................................................................................................38 00 72 13 – GENERAL CONDITIONS.........................................................................................50 00 73 13 – SPECIAL CONDITIONS.........................................................................................106 01 00 00 – GENERAL REQUIREMENTS ................................................................................110 EXHIBIT “A” CHANGE ORDER FORM........................................................................................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 sealed Bids up to but not later than 2:00 p.m. on Tuesday, October 17, 2023 at City of Milpitas City Hall, 1st floor, Information Service Counter, 455 E. Calaveras Boulevard, Milpitas, California 95035, for the furnishing to City of all labor, equipment, materials, tools, services, transportation, permits, utilities, and all other items necessary for Sports Center Roof Rehabilitation Project (the “Project”). At said time, Bids will be publicly opened and read aloud at the City Office. Bids received after said time shall be returned unopened. 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 Prints Charles Reprographics, 1643 South Main Street, Milpitas CA 95035, (408) 240-3330, www.printscharlesrepro.com or [email protected]. . 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 on www.printscharlesrepro.com. It is the responsibility of each prospective bidder to check www.printscharlesrepro.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 www.printscharlesrepro.com may change without notice to prospective bidders. The Contract Documents shall supersede any information posted or transmitted by www.printscharlesrepro.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 MANDATORY Pre-Bid Conference is scheduled for September 27, 2023 at 10:00am and on to review the Project's existing conditions at Milpitas Sports Center, 1325 E. Calaveras Blvd., Milpitas, CA 95035. 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. Bids will not be accepted from any bidder who did not attend one of the mandatory Pre-Bid Conferences.

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.

38077.00180\29080232.10 C2
-2- 00 11 16 – NOTICE INVITING BIDS
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.

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: C-39 Roofing Contractor and C-20 – Warm Air, Heating, Ventilating and Air Conditioning.

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.

38077.00180\29080232.10 C2
-3- 00 11 16 – NOTICE INVITING BIDS
For further information, contact Steve Pietrobono/Buyer, at [email protected] or 408-472- 8085.

END OF NOTICE INVITING BIDS

38077.00180\29080232.10 C2
-4- 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. Please Note: Prospective Bidders who choose to review the Contract Documents at a plan room must contact the City via Prints Charles Reprographics to obtain the required Contract Documents if they decide to submit a bid for the Project.

Addenda, if any, issued during the bid period will be posted on www.printscharlesrepro.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.

38077.00180\29080232.10 C2
-5- 00 21 13 – INSTRUCTIONS TO BIDDERS

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 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. Each prospective Bidder shall provide City a name, address, email address, and facsimile number to which Addenda may be sent, as well as a telephone number by which the City can contact the Bidder. Any Addenda will be posted on www.printscharlesrepro.com. Please Note: Bidders are responsible for ensuring that they have received any and all Addenda. To this end, each Bidder should contact Steve Pietrobono/Buyer, at [email protected] or 408-472-8085.
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.

38077.00180\29080232.10 C2
-6- 00 21 13 – INSTRUCTIONS TO BIDDERS

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 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 20% 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.

38077.00180\29080232.10 C2
-7- 00 21 13 – INSTRUCTIONS TO BIDDERS

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 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.

38077.00180\29080232.10 C2
-8- 00 21 13 – INSTRUCTIONS TO BIDDERS

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.

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 placed, along with the Bid Guarantee and other required materials, in a sealed

38077.00180\29080232.10 C2
-9- 00 21 13 – INSTRUCTIONS TO BIDDERS
envelope, addressed and delivered or mailed, postage prepaid, to the City Clerk before the time and day set for the receipt of bids. The envelope shall bear the title of the work and the name of the bidder. No oral or telephonic bids will be considered. No forms transmitted via the internet, e-mail, facsimile, or any other 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. The envelope shall also contain the following in the lower left-hand corner thereof:

Bid of (Bidder’s Name)
for the Sports Center Roof Rehabilitation Project
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 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.

38077.00180\29080232.10 C2
-10- 00 21 13 – INSTRUCTIONS TO BIDDERS

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 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 Public Works Department of 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

38077.00180\29080232.10 C2
-11- 00 21 13 – INSTRUCTIONS TO BIDDERS
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:

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)

38077.00180\29080232.10 C2
-12- 00 21 13 – INSTRUCTIONS TO BIDDERS
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 forms to be executed by the successful Bidder are included within these Specifications and shall not be detached.

38077.00180\29080232.10 C2
-13- 00 41 43 – BID FORMS
00 41 43 – BID FORMS

1.1 Bid Acknowledgement.

NAME OF BIDDER:

To the Honorable City Council of the City of Milpitas, attn City Clerk:

The undersigned hereby declare that we have carefully examined the location of the proposed Work, and have read and examined the Contract Documents, including all plans, specifications, and all addenda, if any for the following Project:

SPORTS CENTER ROOF REHABILITATION PROJECT
A We hereby propose to furnish all labor, materials, equipment, tools, transportation, and services, and to discharge all duties and obligations necessary and required to perform and complete the Project, as described and in strict conformity with the Contract Documents for the Total Bid Price indicated herein.

B The undersigned agrees that this Bid constitutes a firm offer to the City which cannot be withdrawn for the number of calendar days indicated in the Notice Inviting Bids from and after the Bid opening, or until a Contract for the Work is fully executed by the City and a third party, whichever is earlier.

C The undersigned has by careful examination of the Contract Documents and any addenda thereto, and by examination of the actual Site conditions, satisfied itself as to the nature and location of all Work, the plans and specifications, and the general and local conditions to be encountered in the performance of any Work, the requirements of the Contract and all other matters which can in any way affect the Work or the cost thereof.

D The undersigned acknowledges receipt, understanding, and full consideration of the following addenda to the Contract Documents:

List Addenda No's. ________________________________________________ E Attached hereto and by this reference incorporated herein and made a part of this Bid are the following forms which have been completed and executed by undersigned Bidder:

1. Designation of Subcontractors form.

2. Bidder Information and Experience form.

3. Noncollusion Declaration form.

4. Iran Contracting Act Certification form.

5. Public Works Contractor Registration Certification form.

6. Attached is the completed Wage Theft Certification form.

38077.00180\29080232.10 C2
-14- 00 41 43 – BID FORMS

7. Contractor’s Certificate Regarding Workers’ Compensation form.

8. Bid Guarantee in the amount of not less than 10% of the Total Bid Price.

F If awarded a contract, the undersigned hereby agrees to sign the contract and furnish the necessary bonds and certificates of insurance within fourteen (14) days after the City provides the successful bidder with the Notice of Award.

G Upon receipt of the signed contract and other required documents, the contract will be executed by the City, after which the City will prepare a letter giving Contractor Notice to Proceed. The official starting date shall be the date of the Notice to Proceed, unless otherwise specified. The undersigned agrees to begin the Work within ten (10) working days of the date of the Notice to Proceed, unless otherwise specified.

H Bidder is an individual ______, or corporation ______, or partnership ______, organized under the laws of the State of _______________________________.

I Bidder represents and confirms that license(s) required by California State Contractor’s License Law for the performance of the subject project are in full effect and proper order. The following are the Bidder’s applicable license number(s), with their expiration date(s) and class of license(s):

If the Bidder is a joint venture, each member of the joint venture must include the required licensing information.
(SIGNATURES CONTINUED ON NEXT PAGE)

38077.00180\29080232.10 C2
-15- 00 41 43 – BID FORMS
J The undersigned that the representations made herein herein are true and correct and all of the information submitted in connection with this Bid are made under penalty of perjury under the laws of the State of California.

Executed at _________________________, on this ____ day of __________, _____. (Bidder’s Name – Print or Type)
(Name and Title)(Corporate Seal)
(Signature)
Names of individual members of firm or names and titles of all officers of corporation and their addresses are listed below:

Name Title
Complete Address
Phone Fax
Name Title
Complete Address
Phone Fax
Name Title
Complete Address
Phone Fax
Name Title
Complete Address
Phone Fax

38077.00180\29080232.10 C2
-16- 00 41 43 – BID FORMS

1.2 BID SCHEDULE
NO. ITEM DESCRIPTION

UNIT OF

MEASURE
EST.

QTY.

UNIT
PRICE

TOTAL ITEM
PRICE

1. Mobilization LS 1

2. Diversion of Recyclable
Waste Materials
LS 1

3. Rehabilitation of roof, and
installation of roofing
materials
EA 1

4. Replacement of HVAC duct
work to meet Title 24
requirements.

EA 1

TOTAL BASE BID PRICE
Bidders must provide pricing for every bid item. The costs for any Work shown or required in the Contract Documents, but not specifically identified as a line item are to be included in the related line items and no additional compensation shall be due to Contractor for the performance of the Work.

In case of discrepancy between the Unit Price and the Total Item Price set forth for a unit basis item, the unit price shall prevail and shall be utilized as the basis for determining the lowest responsive, responsible Bidder. However, if the amount set forth as a unit price is ambiguous, unintelligible or uncertain for any cause, or is omitted, or is the same amount as the entry in the “Item Price” column, then the amount set forth in the “Item Price” column for the item shall prevail and shall be divided by the estimated quantity for the item and the price thus obtained shall be the Unit Price.

For purposes of evaluating Bids, the City will correct any apparent errors in the extension of unit prices and any apparent errors in the addition of lump sum and extended prices.

The estimated quantities for Unit Price items are for purposes of comparing Bids only and the City makes no representation that the actual quantities of work performed will not vary from the estimates. Final payment shall be determined by the Engineer from measured quantities of work performed based upon the Unit Price.

38077.00180\29080232.10 C2
-17- 00 41 43 – BID FORMS
TOTAL BID PRICE:

TOTAL BID PRICE BASED ON BID SCHEDULE TOTAL OF UNIT PRICES FOR Sports Center Roof Rehabilitation Project
$
Total Bid Price in Numbers
$
Total Bid Price in Written Form
In case of discrepancy between the written price and the numerical price, the written price shall prevail.

38077.00180\29080232.10 C2
-18- 00 41 43 – BID FORMS

1.3 List of Subcontractors
In compliance with the Subletting and Subcontracting Fair Practices Act Chapter 4 (commencing at Section 4100), Part 1, Division 2 of the Public Contract Code of the State of California and any amendments thereof, Bidder shall set forth below: (a) the name and the location of the place of business, (b) the California contractor license number, (c) the DIR public works contractor registration number unless exempt pursuant to Labor Code Sections 1725.5 and 1771.1, and (d) the portion of the work which will be done by each subcontractor who will perform work or labor or render service to the Bidder in or about the construction of the work or improvement to be performed under this Contract in an amount in excess of one-half of one percent (0.5%) of the Bidder’s Total Bid Price.

Notwithstanding the foregoing, if the work involves the construction of streets and highways, then the Bidder shall list each subcontractor who will perform work or labor or render service to the Bidder in or about the work in an amount in excess of one-half of one percent (0.5%) of the Bidder’s Total Bid Price or $10,000, whichever is greater. No additional time shall be granted to provide the below requested information.

If a Bidder fails to specify a subcontractor or if a contractor specifies more than one subcontractor for the same portion of work, then the Bidder shall be deemed to have agreed that it is fully qualified to perform that portion of work and that it shall perform that portion itself.

As stated in the Instructions to Bidders, Bidder is required to complete at least 20% of the contract value with its own forces. Bidder shall indicate the value of each subcontractor’s work and the sum may not exceed the allowable amount.

Work to be done by
Subcontractor Name of Subcontractor Location of
Business
CSLB Contractor
License No.

DIR
Registration
Number
% of the
Work

38077.00180\29080232.10 C2
-19- 00 41 43 – BID FORMS
Work to be done by
Subcontractor Name of Subcontractor Location of
Business
CSLB Contractor
License No.

DIR
Registration
Number
% of the
Work
(Attach additional sheets if necessary)
Name of Bidder
Signature
Name and Title
Dated

38077.00180\29080232.10
-20- 00 41 43 – BID FORMS

1.4 Bidder Information and Experience Form
A. INFORMATION ABOUT BIDDER
NOTE: Indicate not applicable (“N/A”) where appropriate. If Bidder is a joint venture, pages shall be duplicated and information provided for all parties to the joint venture.

1.0 Name of Bidder:

2.0 Type, if Entity:

3.0 Bidder Address:

Facsimile Number Telephone Number
Email Address

4.0 How many years has Bidder’s organization been in business as a Contractor?

5.0 How many years has Bidder’s organization been in business under its present name?

5.1. Under what other or former names has Bidder’s organization operated?

6.0 If Bidder’s organization is a corporation, answer the following:

6.1. Date of Incorporation:

6.2. State of Incorporation:

6.3. President’s Name:

6.4. Vice-President’s Name(s):

6.5. Secretary’s Name:

6.6. Treasurer’s Name:

7.0 If an individual or a partnership, answer the following:

7.1. Date of Organization:

38077.00180\29080232.10
-21- 00 41 43 – BID FORMS

7.2. Name and address of all partners (state whether general or limited partnership):

8.0 If other than a corporation or partnership, describe organization and name principals:

9.0 List other states in which Bidder’s organization is legally qualified to do business.

10.0 What type of work does the Bidder normally perform with its own forces?

11.0 Has Bidder ever failed to complete any work awarded to it? If so, note when, where, and why:

12.0 Within the last five years, has any officer or partner of Bidder’s organization ever been an officer or partner of another organization when it failed to complete a contract? If so, attach a separate sheet of explanation:

13.0 List Trade References:

38077.00180\29080232.10
-22- 00 41 43 – BID FORMS

14.0 List Bank References (Bank and Branch Address):

15.0 Name of Bonding Company and Name and Address of Agent:
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

38077.00180\29080232.10
-23- 00 41 43 – BID FORMS
B. LIST OF CURRENT PROJECTS (BACKLOG)
[**Duplicate Page if needed for listing additional current projects.**] Project Name, &
Owner Contact
Information
Description of
Bidder’s Work
Completion Date Cost of Bidder’s
Work

38077.00180\29080232.10
-24- 00 41 43 – BID FORMS
C. LIST OF COMPLETED PROJECTS – LAST THREE YEARS
[**Duplicate Page if needed for listing additional completed projects.**] Project Name, &
Owner Contact
Information
Description of
Bidder’s Work
Completion Date Cost of Bidder’s
Work

38077.00180\29080232.10
-25- 00 41 43 – BID FORMS
D. EXPERIENCE AND TECHNICAL QUALIFICATIONS QUESTIONNAIRE Personnel:

The Bidder shall identify the key personnel to be assigned to this project in a management, construction supervision or engineering capacity.

1. List each person’s job title, name and percent of time to be allocated to this project:

2. Summarize each person’s specialized education:

3. List each person’s years of construction experience relevant to the project:

4. Summarize such experience:

Bidder agrees that personnel named in this Bid will remain on this Project until completion of all relevant Work, unless substituted by personnel of equivalent experience and qualifications approved in advance by the City.

Additional Bidder’s Statements:

If the Bidder feels that there is additional information which has not been included in the questionnaire above, and which would contribute to the qualification review, it may add that information in a statement here or on an attached sheet, appropriately marked:

38077.00180\29080232.10
-26- 00 41 43 – BID FORMS
E. VERIFICATION AND EXECUTION
These Bid Forms shall be executed only by a duly authorized official of the Bidder:

I declare under penalty of perjury under the laws of the State of California that the foregoing information is true and correct:

Name of Bidder
Signature
Name
Title
Date

38077.00180\29080232.10
-27- 00 41 43 – BID FORMS

1.5 Non-Collusion Declaration
The undersigned declares:

I am the ___________________ of ______________________________, the party making the foregoing Bid.

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

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

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

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on __________ [date], at ___________________ [city], ___________________ [state].

Name of Bidder
Signature
Name
Title

38077.00180\29080232.10
-28- 00 41 43 – BID FORMS

1.6 Iran Contracting Act Certification.
(Public Contract Code section 2200 et seq.)
As required by California Public Contract Code Section 2204, the Contractor certifies subject to penalty for perjury that the option checked below relating to the Contractor’s status in regard to the Iran Contracting Act of 2010 (Public Contract Code Section 2200 et seq.) is true and correct:
☐ The Contractor is not:
(1) identified on the current list of person and entities engaged in investment activities in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code Section 2203; or (2) a financial instruction that extends, for 45 days or more, credit in the amount of $20,000,000 or more to any other person or entity identified on the current list of persons and entities engaging in investment activities in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code Section 2203, if that person or entity uses or will use the credit to provide goods or services in the energy sector in Iran. ☐ The City has exempted the Contractor from the requirements of the Iran Contracting Act of 2010 after making a public finding that, absent the exemption, the City will be unable to obtain the goods and/or services to be provided pursuant to the Contract. ☐ The amount of the Contract payable to the Contractor for the Project does not exceed $1,000,000.

Signature:

Printed Name:

Title:

Firm Name:

Date:

Note: In accordance with Public Contract Code Section 2205, false certification of this form shall be reported to the California Attorney General and may result in civil penalties equal to the greater of $250,000 or twice the Contract amount, termination of the Contract and/or ineligibility to bid on contracts for three years.

38077.00180\29080232.10
-29- 00 41 43 – BID FORMS

1.7 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. See http://www.dir.ca.gov/Public- Works/PublicWorks.html for additional information.

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.

Bidder hereby certifies that it is aware of the registration requirements set forth in Labor Code sections 1725.5 and 1771.1 and is currently registered as a contractor with the Department of Industrial Relations.1
Name of Bidder:

DIR Registration Number:

DIR Registration Expiration:_________________________
Small Project Exemption: _____ Yes or _XX____ No
Unless Bidder is exempt pursuant to the small project exemption, Bidder further acknowledges:

1. Bidder shall maintain a current DIR registration for the duration of the project.

2. Bidder shall include the requirements of Labor Code sections 1725.5 and 1771.1 in its contract with subcontractors and ensure that all subcontractors are registered at the time of bid opening and maintain registration status for the duration of the project.

3. Failure to submit this form or comply with any of the above requirements may result in a finding that the bid is non-responsive.

Name of Bidder
Signature
Name and Title
Dated
1 If the Project is exempt from the contractor registration requirements pursuant to the small project exemption under Labor Code Sections 1725.5 and 1771.1, please mark “Yes” in response to “Small Project Exemption.”

38077.00180\29080232.10
-30- 00 41 43 – BID FORMS

1.8 Wage Theft Certification
The Bidder certifies subject to penalty for perjury that the option checked below relating to the Bidder and its subcontractors’ status in regard to wage theft is true and correct:

Neither the Bidder nor any of its subcontractors have 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.

The Bidder or its subcontractors have 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. For each violation, the Bidder shall provide a copy of (i) the final court order and/or final administrative decision/action; and (ii) documents demonstrating either that the order/decision/action has been fully satisfied, or if the order/decision/action has not been fully satisfied, documents evidencing a payment or other alternative plan approved by the court/government agency to satisfy the order/decision/action and proof that the Bidder or its subcontractors are in compliance with that plan as of the bid submission deadline.

The City has exempted the Bidder from the requirements of the City of Milpitas Wage Theft Procurement Policy.

Signature:

Printed Name:

Title:

Firm Name:

Date:

38077.00180\29080232.10
-31- 00 41 43 – BID FORMS

1.9 Contractor’s Certificate Regarding Workers’ Compensation.

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.

Name of Bidder
Signature
Name
Title
Dated ______________________________

38077.00180\29080232.10
-32- 00 41 43 – BID FORMS

1.10 Bid Bond
Note: Not required when other form of Bidder’s Security, e.g. cash, certified check or cashier’s check, accompanies bid.

The makers of this bond are, _____________________________________________, as Principal, and ______________________________________________________, as Surety and are held and firmly bound unto the City of Milpitas, hereinafter called the City, in the penal sum of TEN PERCENT (10%) OF THE TOTAL BID PRICE of the Principal submitted to CITY for the work described below, for the payment of which sum in lawful money of the United States, 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 whereas the Principal has submitted the accompanying bid dated _____________, 20 ____, for the Sports Center Roof Rehabilitation Project.

If the Principal does not withdraw its Bid within the time specified in the Contract Documents; and if the Principal is awarded the Contract and provides all documents to the City as required by the Contract Documents; then this obligation shall be null and void. Otherwise, this bond will remain in full force and effect.

Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents shall in affect its obligation under this bond, and Surety does hereby waive notice of any such changes.

In the event a lawsuit is brought upon this bond by the City and judgment is recovered, the Surety shall pay all litigation expenses incurred by the City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and expenses.

IN WITNESS WHEREOF, the above-bound parties have executed this instrument under their several seals this _______ day of ________________, 20____, the name and corporate seal of each corporation.
(Corporate Seal)
Contractor/Principal
By
Title
(Corporate Seal)
Surety
By
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate) Title

38077.00180\29080232.10
-33- 00 41 43 – BID 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 Name(s) of Signer(s)
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
￿ Individual

DESCRIPTION OF ATTACHED DOCUMENT
￿ 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
-34- 00 41 43 – BID 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
￿ Individual

DESCRIPTION OF ATTACHED DOCUMENT
￿ 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 BID BOND

38077.00180\29080232.10
-35- 00 52 13 – CONTRACT
00 52 13 – CONTRACT
This CONTRACT, No. 24-029 is made and entered into this day of __________________ by and between City of Milpitas, sometimes hereinafter called “City,” and I & A Contractor, 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:

SPORTS CENTER ROOF REHABILITATION PROJECT
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 Four Hundred Twenty- Eight Thousand Three Hundred Dollars and Zero Cents ($428,300.00). 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
Non-Collusion Declaration Form
Iran Contracting Act Certification

38077.00180\29080232.10
-36- 00 52 13 – CONTRACT
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

JUDGMENT, DECISION OR ORDER, OR, IF ANY JUDGMENT, DECISION OR ORDER HAS

NOT BEEN FULLY SATISFIED, CONTRACTOR AFFIRMS THAT IT OR ITS

38077.00180\29080232.10
-37- 00 52 13 – CONTRACT

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]

38077.00180\29080232.10
-38- 00 52 13 – CONTRACT
IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on the day and year above written.

CITY OF MILIPITAS I & A CONTRACTOR INC
By By:

Ned Thomas, City Manager
Its:

Printed
Name:
(CONTRACTOR’S SIGNATURE MUST BE

NOTARIZED AND CORPORATE

SEAL AFFIXED, IF APPLICABLE)
APPROVED AS TO FORM:

By:

City Attorney
Approved:
_________________________________
Lauren Lai, CPA, MPA
Finance Director/Risk Manager
Approved:

Christian Di Renzo, Director of Public Works

END OF CONTRACT

38077.00180\29080232.10
-39- 00 52 13 – CONTRACT
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
￿ Individual

DESCRIPTION OF ATTACHED DOCUMENT
￿ 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

38077.00180\29080232.10
-40- 00 61 13 – BOND FORMS
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.

38077.00180\29080232.10
-41- 00 61 13 – BOND FORMS
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]

38077.00180\29080232.10
-42- 00 61 13 – BOND FORMS
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)

38077.00180\29080232.10
-43- 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
￿ Individual

DESCRIPTION OF ATTACHED DOCUMENT
￿ 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
￿ Individual

DESCRIPTION OF ATTACHED DOCUMENT
￿ 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 under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that

38077.00180\29080232.10
-46- 00 61 13 – BOND FORMS
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

38077.00180\29080232.10
-47- 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
￿ Individual

DESCRIPTION OF ATTACHED DOCUMENT
￿ 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
￿ Individual

DESCRIPTION OF ATTACHED DOCUMENT
￿ 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...............................................................................................50 ARTICLE 2 CONTRACT DOCUMENTS................................................................................54 ARTICLE 3 PRECONSTRUCTION AND CONSTRUCTION COMMUNICATION.................55 ARTICLE 4 CONTRACT DOCUMENTS: COPIES & MAINTENANCE.................................55 ARTICLE 5 EXAMINATION OF DRAWINGS, SPECIFICATIONS AND SITE OF WORK.................................................................................................................55 ARTICLE 6 EXISTENCE OF UTILITIES AT THE WORK SITE.............................................56 ARTICLE 7 SOILS INVESTIGATIONS ..................................................................................57 ARTICLE 8 ARTICLE 8. CONTRACTOR’S SUPERVISION .................................................57 ARTICLE 9 WORKERS .........................................................................................................58 ARTICLE 10 INDEPENDENT CONTRACTORS .....................................................................58 ARTICLE 11 SUBCONTRACTS ..............................................................................................58 ARTICLE 12 VERIFICATION OF EMPLOYMENT ELIGIBILITY .............................................58 ARTICLE 13 REQUESTS FOR SUBSTITUTION ....................................................................59 ARTICLE 14 SHOP DRAWINGS.............................................................................................60 ARTICLE 15 SUBMITTALS .....................................................................................................60 ARTICLE 16 MATERIALS .......................................................................................................61 ARTICLE 17 PERMITS AND LICENSES ................................................................................62 ARTICLE 18 TRENCHES ........................................................................................................62 ARTICLE 19 DIVERSION OF RECYCLABLE WASTE MATERIALS ......................................63 ARTICLE 20 REMOVAL OF HAZARDOUS MATERIALS .......................................................63 ARTICLE 21 SANITARY FACILITIES......................................................................................63 ARTICLE 22 AIR POLLUTION CONTROL..............................................................................64 ARTICLE 23 LAYOUT AND FIELD ENGINEERING ...............................................................64 ARTICLE 24 TESTS AND INSPECTIONS ..............................................................................64 ARTICLE 25 PROTECTION OF WORK AND PROPERTY.....................................................65 ARTICLE 26 CONTRACTOR’S MEANS AND METHODS......................................................65 ARTICLE 27 AUTHORIZED REPRESENTATIVES.................................................................65 ARTICLE 28 HOURS OF WORK.............................................................................................65 ARTICLE 29 PAYROLL RECORDS ........................................................................................66 ARTICLE 30 PREVAILING RATES OF WAGES.....................................................................68

38077.00180\29080232.10

GENERAL CONDITIONS

TABLE OF CONTENTS
(continued)
Page
-50- 00 72 13 - GENERAL CONDITIONS

TABLE OF CONTENTS
ARTICLE 31 PUBLIC WORKS CONTRACTOR REGISTRATION..........................................68 ARTICLE 32 EMPLOYMENT OF APPRENTICES ..................................................................69 ARTICLE 33 NONDISCRIMINATION/EQUAL EMPLOYMENT OPPORTUNITY....................69 ARTICLE 34 DEBARMENT OF CONTRACTORS AND SUBCONTRACTORS......................70 ARTICLE 35 LABOR/EMPLOYMENT SAFETY ......................................................................70 ARTICLE 36 INSURANCE.......................................................................................................70 ARTICLE 37 FORM AND PROOF OF CARRIAGE OF INSURANCE.....................................74 ARTICLE 38 TIME FOR COMPLETION AND LIQUIDATED DAMAGES................................75 ARTICLE 39 SCHEDULE OF VALUES, COST BREAKDOWN AND PERIODIC ESTIMATES .......................................................................................................77 ARTICLE 40 PROGRESS ESTIMATES AND PAYMENT .......................................................77 ARTICLE 41 SECURITIES FOR MONEY WITHHELD............................................................79 ARTICLE 42 CHANGES AND EXTRA WORK. .......................................................................79 ARTICLE 43 FINAL ACCEPTANCE AND PAYMENT .............................................................92 ARTICLE 44 OCCUPANCY.....................................................................................................93 ARTICLE 45 INDEMNIFICATION............................................................................................93 ARTICLE 46 PROCEDURE FOR RESOLVING DISPUTES ...................................................94 ARTICLE 47 CITY’S RIGHT TO TERMINATE CONTRACT....................................................97 ARTICLE 48 WARRANTY AND GUARANTEE OF WORK .....................................................99 ARTICLE 49 DOCUMENT RETENTION & EXAMINATION ..................................................102 ARTICLE 50 SEPARATE CONTRACTS ...............................................................................102 ARTICLE 51 NOTICE AND SERVICE THEREOF.................................................................103 ARTICLE 52 NOTICE OF THIRD PARTY CLAIMS...............................................................103 ARTICLE 53 STATE LICENSE BOARD NOTICE .................................................................103 ARTICLE 54 INTEGRATION .................................................................................................103 ARTICLE 55 ASSIGNMENT OF CONTRACT .......................................................................103 ARTICLE 56 CHANGE IN NAME AND NATURE OF CONTRACTOR’S LEGAL ENTITY ....104 ARTICLE 57 ASSIGNMENT OF ANTITRUST ACTIONS......................................................104 ARTICLE 58 PROHIBITED INTERESTS...............................................................................104 ARTICLE 59 CONTROLLING LAW .......................................................................................104 ARTICLE 60 JURISDICTION; VENUE ..................................................................................104 ARTICLE 61 LAWS AND REGULATIONS ............................................................................104

38077.00180\29080232.10

GENERAL CONDITIONS

TABLE OF CONTENTS
(continued)
Page
-51- 00 72 13 - GENERAL CONDITIONS

TABLE OF CONTENTS
ARTICLE 62 PATENTS .........................................................................................................105 ARTICLE 63 OWNERSHIP OF CONTRACT DOCUMENTS.................................................105 ARTICLE 64 NOTICE OF TAXABLE POSSESSORY INTEREST ........................................105 ARTICLE 65 SURVIVAL OF OBLIGATIONS.........................................................................105

38077.00180\29080232.10
-52- 00 72 13 – GENERAL CONDITIONS
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 Edition. 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.

38077.00180\29080232.10
-53- 00 72 13 – GENERAL CONDITIONS
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
-54- 00 72 13 – GENERAL CONDITIONS
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.

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.

38077.00180\29080232.10
-55- 00 72 13 – GENERAL CONDITIONS
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.

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.

38077.00180\29080232.10
-56- 00 72 13 – GENERAL CONDITIONS
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
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

38077.00180\29080232.10
-57- 00 72 13 – GENERAL CONDITIONS
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 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.

38077.00180\29080232.10
-58- 00 72 13 – GENERAL CONDITIONS
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.

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

38077.00180\29080232.10
-59- 00 72 13 – GENERAL CONDITIONS
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.

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.

38077.00180\29080232.10
-60- 00 72 13 – GENERAL CONDITIONS
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.

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.

38077.00180\29080232.10
-61- 00 72 13 – GENERAL CONDITIONS
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.

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.

38077.00180\29080232.10
-62- 00 72 13 – GENERAL CONDITIONS
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.

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

38077.00180\29080232.10
-63- 00 72 13 – GENERAL CONDITIONS
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.

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.

38077.00180\29080232.10
-64- 00 72 13 – GENERAL CONDITIONS
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 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.

38077.00180\29080232.10
-65- 00 72 13 – GENERAL CONDITIONS
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.

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

38077.00180\29080232.10
-66- 00 72 13 – GENERAL CONDITIONS
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 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

38077.00180\29080232.10
-67- 00 72 13 – GENERAL CONDITIONS
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 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.

38077.00180\29080232.10
-68- 00 72 13 – GENERAL CONDITIONS
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, 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,

38077.00180\29080232.10
-69- 00 72 13 – GENERAL CONDITIONS
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 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

38077.00180\29080232.10
-70- 00 72 13 – GENERAL CONDITIONS
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.

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.

38077.00180\29080232.10
-71- 00 72 13 – GENERAL CONDITIONS
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 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

38077.00180\29080232.10
-72- 00 72 13 – GENERAL CONDITIONS
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 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.

38077.00180\29080232.10
-73- 00 72 13 – GENERAL CONDITIONS
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.

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.

38077.00180\29080232.10
-74- 00 72 13 – GENERAL CONDITIONS

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 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”]

1. It is the Contractor’s responsibility to maintain or cause to be maintained Builder’s Risk [“All Risk”] extended coverage insurance on all work, material, equipment, appliances, tools, and structures that are or will become part of the Work and subject to loss or damage by fire, and vandalism and malicious mischief, in an amount to cover 100% of the replacement cost. The City accepts no responsibility for the Work until the Work is formally accepted by the City. The Contractor shall provide a certificate evidencing this coverage before commencing performance of the Work.

2. The named insureds shall be Contractor, all Subcontractors of any tier (excluding those solely responsible for design work), suppliers, and City, its elected officials, officers, employees, agents and authorized volunteers,

38077.00180\29080232.10
-75- 00 72 13 – GENERAL CONDITIONS
as their interests may appear. Contractor shall not be required to maintain property insurance for any portion of the Work following acceptance by City.

3. Policy shall be provided for replacement value on an “all risk” basis. There shall be no coinsurance penalty provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, nonconforming work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) transit coverage, including ocean marine coverage (unless insured by the supplier), with sub-limits sufficient to insure the full replacement value of any key equipment item; and (5) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site. Such insurance shall be on a form acceptable to City to ensure adequacy and sublimit.

4. In addition, the policy shall meet the following requirements:
a. Insurance policies shall be so conditioned as to cover the performance of any extra work performed under the Contract. b. Coverage shall include all materials stored on site and in transit. c. Coverage shall include Contractor’s tools and equipment. d. Insurance shall include boiler, machinery and material hoist coverage.

G.Contractor’s Pollution Liability Coverage. Contractor shall provide pollution liability insurance in an amount not less than $1,000,000 per occurrence and $2,000,000 aggregate.

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 self- insured 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

38077.00180\29080232.10
-76- 00 72 13 – GENERAL CONDITIONS
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 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

38077.00180\29080232.10
-77- 00 72 13 – GENERAL CONDITIONS
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 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

38077.00180\29080232.10
-78- 00 72 13 – GENERAL CONDITIONS
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.

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.