Oakland City Council
April 18, 2023

January 2021
EXHIBIT 12-G REQUIRED FEDERAL-AID CONTRACT LANGUAGE
(For Local Assistance Construction Projects)
The following language must be incorporated into all Local Assistance Federal-aid construction contracts. The following language, with minor edits, was taken from the Code of Federal Regulations.

MAINTAIN RECORDS AND SUBMIT REPORTS DOCUMENTING YOUR PERFORMANCE UNDER THIS

SECTION

1. DISADVANTAGED BUSINESSENTERPRISES (DBE)...................................................................................2 A. NONDISCRIMINATION STATEMENT.............................................................................................. 2 B. CONTRACT ASSURANCE............................................................................................................... 3 C. PROMPT PROGRESS PAYMENT ................................................................................................... 3 D. PROMPT PAYMENT OF WITHHELD FUNDS TO SUBCONTRACTORS ...................................... 3 E. TERMINATION AND SUBSTITUTION OF DBE SUBCONTRACTORS.......................................... 4 F. COMMITMENT AND UTILIZATION ................................................................................................. 5 G. DBE RUNNING TALLY OF ATTAINMENTS ................................................................................... 6

2. BID OPENING ................................................................................................................................................ 6

3. BID RIGGING ................................................................................................................................................. 6

4. CONTRACT AWARD ..................................................................................................................................... 6

5. CONTRACTOR LICENSE.............................................................................................................................. 6

6. CHANGED CONDITIONS .............................................................................................................................. 6 A. DIFFERING SITE CONDITIONS....................................................................................................... 6 B. SUSPENSIONS OF WORK ORDERED BY THE ENGINEER ......................................................... 6 C. SIGNIFICANT CHANGES IN THE CHARACTER OF WORK.......................................................... 7

7. BEGINNING OF WORK, TIME OF COMPLETION AND LIQUIDATED DAMAGES......................................7

8. BUY AMERICA............................................................................................................................................... 7

9. QUALITY ASSURANCE................................................................................................................................. 8

10. PROMPT PAYMENT FROM THE AGENCY TO THE CONTRACTORS........................................................ 8

11. FORM FHWA-1273 REQUIRED CONTRACT PROVISIONSFEDERAL-AID CONTRACTS....................... 8

12. FEMALE AND MINORITY GOALS .............................................................................................................. 21

13. TITLE VI ASSURANCES.............................................................................................................................. 22

14. USE OF UNITED STATES-FLAG VESSELS (CARGO PREFERENCE ACT).............................................23

15. FEDERAL TRAINEE PROGRAM................................................................................................................. 23 Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021

1. DISADVANTAGED BUSINESS ENTERPRISES (DBE)
The contractor, subrecipient or subcontractor shall take necessary and reasonable steps to ensure that DBEs have opportunity to participate in the contract (49 CFR 26). To ensure equal participation of DBEs provided in 49 CFR

26.5, the Agency shows a contract goal for DBEs. The prime contractor shall make work available to DBEs and select work parts consistent with available DBE subcontractors and suppliers.

The prime contractor shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate good faith efforts to meet this goal.

It is the prime contractor’s responsibility to verify that the DBE firm is certified as DBE at date of bid opening and document the record by printing out the California Unified Certification Program (CUCP) data for each DBE firm.

A list of DBEs certified by the CUCP can be found here.

All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal.

Credit for materials or supplies the prime contractor purchases from DBEs counts towards the goal in the following manner:
• 100 percent counts if the materials or supplies are obtained from a DBE manufacturer. • 60 percent counts if the materials or supplies are obtained from a DBE regular dealer. • Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and "regular dealer."
The prime contractor receives credit towards the goal if they employ a DBE trucking company that performs a commercially useful function as defined in 49 CFR 26.55(d)(1) as follows:
• The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible on a particular contract, and there cannot be a contrived arrangement for the purpose of meeting DBE goals.
• The DBE must itself own and operate at least one fully licensed, insured, and operational truck used on the contract.
• The DBE receives credit for the total value of the transportation services it provides on the Contract using trucks it owns, insures, and operates using drivers it employs. • The DBE may lease trucks from another DBE firm, including an owner-operator who is certified as a DBE.

The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the Contract.
• The DBE may lease trucks without drivers from a non-DBE truck leasing company. If the DBE leases trucks from a non-DBE truck leasing company and uses its own employees as drivers, it is entitled to credit for the total value of these hauling services.
• A lease must indicate that the DBE has exclusive use of and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, so long as the lease gives the DBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the DBE.
a. Nondiscrimination Statement
The contractor, subrecipient or subcontractor will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the Local Agency components of the DBE Program Plan, the contractor, subrecipient or subcontractor will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.

Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021
b. Contract Assurance
Under 49 CFR 26.13(b):

The contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as non-responsible. c. Prompt Progress Payment
The prime contractor or subcontractor shall pay to any subcontractor, not later than seven days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed the contractor on account of the work performed by the subcontractors, to the extent of each subcontractor’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from the prime contractor or subcontractor to a subcontractor, the prime contractor or subcontractor may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the subcontractor, of 2 percent of the amount due per month for every month that payment is not made.

In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and nonDBE subcontractors. d. Prompt Payment of Withheld Funds to Subcontractors
The Agency may hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the Agency, of the contract work, and pay retainage to the prime contractor based on these acceptances. The Agency shall designate one of the methods below in the contract to ensure prompt and full payment of any retainage kept by the prime contractor or subcontractor to a subcontractor.

The Agency shall include either Method 1, Method 2, or Method 3 below and delete the other two.

Method 1: No retainage will be held by the Agency from progress payments due to the prime contractor. Prime contractors and subcontractors are prohibited from holding retainage from subcontractors. Any delay or postponement of payment may take place only for good cause and with the Agency’s prior written approval.

Any violation of these provisions shall subject the violating contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code and Section 10262 of the California Public Contract Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor performance and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors.

Method 2: No retainage will be held by the Agency from progress payments due to the prime contractor. Any retainage kept by the prime contractor or by a subcontractor must be paid in full to the earning subcontractor within seven (7) days after the subcontractor’s work is satisfactorily completed. Any delay or postponement of payment may take place only for good cause and with the Agency’s prior written approval. Any violation of these provisions shall subject the violating contractor or subcontractor to the penalties, sanctions, and remedies specified in Section 7108.5 of the California Business and Professions Code and Section 10262 of the California Public Contract Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor performance and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors.

Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021
Method 3: The Agency shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the Agency of the contract work and pay retainage to the prime contractor based on these acceptances. The prime contractor or subcontractor shall return all monies withheld in retention from all subcontractors within seven (7) days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the Agency. Any delay or postponement of payment may take place only for good cause and with the Agency’s prior written approval. Any violation of these provisions shall subject the violating prime contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code and Section 10262 of the California Public Contract Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor; deficient subcontractor performance and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors.

Any violation of these provisions shall subject the violating prime contractor or subcontractor to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the prime contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor.
e. Termination and Substitution of DBE Subcontractors
The prime contractor shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless the contractor obtains the Agency’s written consent. The prime contractor shall not terminate or substitute a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without prior written authorization from the Agency. Unless the Agency’s prior written consent is provided, the contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 15-G Construction Contract DBE Commitment form, included in the Bid.

The Agency authorizes a request to use other forces or sources of materials if the bidder shows any of the following justifications:

1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.

2. The Local Agency stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the Local Agency’s bond requirements.

3. Work requires a contractor's license and listed DBE does not have a valid license under Contractors License Law.

4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).

5. Listed DBE's work is unsatisfactory and not in compliance with the contract.

6. Listed DBE is ineligible to work on the project because of suspension or debarment.

7. Listed DBE becomes bankrupt or insolvent.

8. Listed DBE voluntarily withdraws with written notice from the Contract

9. Listed DBE is ineligible to receive credit for the type of work required.

10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract.

11. The Agency determines other documented good cause.

The prime contractor shall notify the original DBE of the intent to use other forces or material sources and provide the reasons, allowing the DBE 5 days to respond to the notice and advise the prime contractor and the Agency of the reasons why the use of other forces or sources of materials should not occur.

Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021
The prime contractor’s request to use other forces or material sources must include:

1. One or more of the reasons listed in the preceding paragraph.

2. Notices from the prime contractor to the DBE regarding the request.

3. Notices from the DBEs to the prime contractor regarding the request.

If a listed DBE is terminated or substituted, the prime contractor must make good faith efforts to find another DBE to substitute for the original DBE. The substitute DBE must perform at least the same amount of work as the original DBE under the contract to the extent needed to meet or exceed the DBE goal. f. Commitment and Utilization
Note: In the Agency’s reports of DBE participation to Caltrans, the Agency must display both commitments and attainments.

The Agency’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization.

The bidder shall submit the Exhibit 15-G Construction Contract DBE Commitment, included in the Bid book. This exhibit is the bidder’s DBE commitment form. If the form is not submitted with the bid, the bidder must remove the form from the Bid book before submitting their bid.

The bidder shall complete and sign Exhibit 15-G Construction Contract DBE Commitment included in the contract documents regardless of whether DBE participation is reported. The bidder shall provide written confirmation from each DBE that the DBE is participating in the Contract. A copy of a DBE's quote serves as written confirmation. If a DBE is participating as a joint venture partner, the bidder shall submit a copy of the joint venture agreement.

If the DBE Commitment form, Exhibit 15-G, is not submitted with the bid, it must be completed and submitted by all bidders to the Agency within five (5) days of bid opening. If the bidder does not submit the DBE Commitment form within the specified time, the Agency will find the bidder’s bid nonresponsive.

The prime contractor shall use each DBE subcontractor as listed on Exhibit 12-B Bidder’s List of Subcontractors (DBE and Non-DBE), and Exhibit 15-G Construction Contract DBE Commitment form unless they receive authorization for a substitution.

The Agency shall request the prime contractor to:

1. Notify the Resident Engineer or Inspector of any changes to its anticipated DBE participation

2. Provide this notification before starting the affected work

3. Maintain records including:
• Name and business address of each 1st
-tier subcontractor
• Name and business address of each DBE subcontractor, DBE vendor, and DBE trucking company, regardless of tier
• Date of payment and total amount paid to each business (see Exhibit 9-F Monthly Disadvantaged Business Enterprise Payment)
If the prime contractor is a DBE contractor, they shall include the date of work performed by their own forces and the corresponding value of the work.

Before the 15th of each month, the prime contractor shall submit a Monthly DBE Trucking Verification (LAPM Exhibit 16-Z1) form.

If a DBE is decertified before completing its work, the DBE must notify the prime contractor in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify the prime contractor in writing of the certification date. The prime contractor shall submit the notifications. Upon work completion, the prime contractor shall complete a Disadvantaged Business Enterprises (DBE) Certification Status Change, Exhibit 17-O, form and submit the form within 30 days of contract acceptance.

Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021
Upon work completion, the prime contractor shall complete Exhibit 17-F Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and submit it within 90 days of contract acceptance. The Agency will withhold $10,000 until the form is submitted. The Agency releases the withhold upon submission of the completed form.
g. DBE RUNNING TALLY OF ATTAINMENTS
After submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the prime contractor/consultant shall complete and email the Exhibit 9-F: Disadvantaged Business Enterprise Running Tally of Payments to [email protected] with a copy to the Agency.

2. BID OPENING The Agency publicly opens and reads bids at the time and place shown on the Notice to Contractors.

3. BID RIGGING The U.S. Department of Transportation (DOT) provides a toll-free hotline to report bid rigging activities. Use the hotline to report bid rigging, bidder collusion, and other fraudulent activities. The hotline number is (800) 424-9071. The service is available 24 hours 7 days a week and is confidential and anonymous. The hotline is part of the DOT's effort to identify and investigate highway construction contract fraud and abuse and is operated under the direction of the DOT Inspector General.

4. CONTRACT AWARD If the Agency awards the contract, the award is made to the lowest responsible and responsive bidder.

5. CONTRACTOR LICENSE The Contractor must be properly licensed as a contractor from contract award through Contract acceptance (Public Contract Code § 10164).

6. CHANGED CONDITIONS
a. Differing Site Conditions

1. During the progress of the work, if subsurface or latent physical conditions are encountered at the site differing materially from those indicated in the contract or if unknown physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the work provided for in the contract, are encountered at the site, the party discovering such conditions shall promptly notify the other party in writing of the specific differing conditions before the site is disturbed and before the affected work is performed.

2. Upon written notification, the engineer will investigate the conditions, and if it is determined that the conditions materially differ and cause an increase or decrease in the cost or time required for the performance of any work under the contract, an adjustment, excluding anticipated profits, will be made and the contract modified in writing accordingly. The engineer will notify the contractor of the determination whether or not an adjustment of the contract is warranted.

3. No contract adjustment which results in a benefit to the contractor will be allowed unless the contractor has provided the required written notice.

4. No contract adjustment will be allowed under this clause for any effects caused on unchanged work. (This provision may be omitted by the Local Agency, at their option.) b. Suspensions of Work Ordered by the Engineer

1. If the performance of all or any portion of the work is suspended or delayed by the engineer in writing for an unreasonable period of time (not originally anticipated, customary, or inherent to the construction industry) and the contractor believes that additional compensation and/or contract time is due as a result of such suspension or delay, the contractor shall submit to the engineer in writing a request for adjustment within 7 calendar days of receipt of the notice to resume work. The request shall set forth the reasons and support for such adjustment.

2. Upon receipt, the engineer will evaluate the contractor's request. If the engineer agrees that the cost and/or time required for the performance of the contract has increased as a result of such suspension and the Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021
suspension was caused by conditions beyond the control of and not the fault of the contractor, its suppliers, or subcontractors at any approved tier, and not caused by weather, the engineer will make an adjustment (excluding profit) and modify the contract in writing accordingly. The contractor will be notified of the engineer's determination whether or not an adjustment of the contract is warranted.

3. No contract adjustment will be allowed unless the contractor has submitted the request for adjustment within the time prescribed.

4. No contract adjustment will be allowed under this clause to the extent that performance would have been suspended or delayed by any other cause, or for which an adjustment is provided or excluded under any other term or condition of this contract.
c. Significant Changes in the Character of Work

1. The engineer reserves the right to make, in writing, at any time during the work, such changes in quantities and such alterations in the work as are necessary to satisfactorily complete the project. Such changes in quantities and alterations shall not invalidate the contract nor release the surety, and the contractor agrees to perform the work as altered.

2. If the alterations or changes in quantities significantly change the character of the work under the contract, whether such alterations or changes are in themselves significant changes to the character of the work or by affecting other work cause such other work to become significantly different in character, an adjustment, excluding anticipated profit, will be made to the contract. The basis for the adjustment shall be agreed upon prior to the performance of the work. If a basis cannot be agreed upon, then an adjustment will be made either for or against the contractor in such amount as the engineer may determine to be fair andequitable.

3. If the alterations or changes in quantities do not significantly change the character of the work to be performed under the contract, the altered work will be paid for as provided elsewhere in the contract.

4. The term “significant change” shall be construed to apply only to the following circumstances:
• When the character of the work as altered differs materially in kind or nature from that involved or included in the original proposed construction; or
• When a major item of work, as defined elsewhere in the contract, is increased in excess of 125 percent or decreased below 75 percent of the original contract quantity. Any allowance for an increase in quantity shall apply only to that portion in excess of 125 percent of original contract item quantity, or in case of a decrease below 75 percent, to the actual amount of work performed.

7. BEGINNING OF WORK, TIME OF COMPLETION AND LIQUIDATED DAMAGES The Contractor shall begin work within 15 calendar days after the issuance of the Notice to Proceed.

This work shall be diligently prosecuted to completion before the expiration of WORKING DAYS beginning on the fifteenth calendar day after the date shown on the Notice to Proceed.

The Contractor shall pay to the City the sum of $ per day, for each and every calendar days’ delay in finishing the work in excess of the number of working days prescribed above.

8. BUY AMERICA
Furnish steel and iron materials to be incorporated into the work with certificates of compliance and certified mill test reports. Mill test reports must indicate where the steel and iron were meltedand manufactured. Steel and iron materials must be produced in the U.S. except:

1. Foreign pig iron and processed, pelletized, and reduced iron ore may be used in the domestic production of the steel and iron materials [60 Fed Reg 15478 (03/24/1995)];

2. If the total combined cost of the materials does not exceed the greater of 0.1 percent of the total bid or $2,500, materials produced outside the U.S. may be used.

Production includes:

Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021

1. Processing steel and iron materials, including smelting or other processes that alter the physical form or shape (such as rolling, extruding, machining, bending, grinding, and drilling) or chemical composition;

2. Coating application, including epoxy coating, galvanizing, and painting, that protects or enhances the value of steel and iron materials.

9. QUALITY ASSURANCE
The Local Agency uses a Quality Assurance Program (QAP) to ensure a material is produced to comply with the Contract. The Local Agency may examine the records and reports of tests the prime contractor performs if they are available at the job site. Schedule work to allow time for QAP.

10. PROMPT PAYMENT FROM THE AGENCY TO THE CONTRACTORS
The Agency shall make any progress payment within 30 days after receipt of an undisputed and properly submitted payment request from a contractor on a construction contract. If the Agency fails to pay promptly, the Agency shall pay interest to the contractor, which accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied. Upon receipt of a payment request, the Agency shall act in accordance with both of the following:

1. Each payment request shall be reviewed by the Agency as soon as practicable after receipt for the purpose of determining that it is a proper payment request.

2. Any payment request determined not to be a proper payment request suitable for payment shall be returned to the contractor as soon as practicable, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall be accompanied by a document setting forth in writing the reasons why the payment request is not proper.

11. FORM FHWA-1273 REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONTRACTS The following 12 pages must be physically inserted into the contract without modification. (Excluding ATTACHMENT A -EMPLOYMENT AND MATERIALS PREFERENCE FOR APPALACHIAN

DEVELOPMENT HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS ROAD CONTRACTS) Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021
FHWA-1273
Revised July 5, 2022

REQUIRED CONTRACT

PROVISIONS FEDERAL-AID

CONSTRUCTION CONTRACTS
Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021
I. General
II. Nondiscrimination
III. No segregated Facilities
IV. Davis-Bacon and Related Act Provisions
V. Contract Work Hours and Safety Standards Act Provisions VI. Subletting or Assigning the Contract
VII. Safety: Accident Prevention
VIII. False Statements Concerning Highway Projects
IX. Implementation of Clean Air Act and Federal Water Pollution Control Act
X. Compliance with Government wide Suspension and Debarment Requirements
XI. Certification Regarding Use of Contract Funds for Lobbying XII. Use of United States-Flag Vessels
A. Employment and Materials Preference for Appalachian Development Highway System or Appalachian Local Access Road Contracts (included in Appalachian contracts only)
I. GENERAL

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

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

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

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

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

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

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

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

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

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

Note: The U.S. Department of Labor has exclusive authority to determine compliance with Executive Order 11246 and the policies of the Secretary of Labor including 41 CFR 60, and 29 CFR 1625-1627.

The contracting agency and the FHWA have the authority and the responsibility to ensure compliance with Title 23 USC Section 140, the Rehabilitation Act of 1973, as amended (29 USC 794), and Title VI of the Civil Rights Act of 1964, as amended, and related regulations including 49 CFR Parts 21, 26 and 27; and 23 CFR Parts 200, 230, and 633.

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

1. Equal Employment Opportunity: Equal employment opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (28 CFR 35, 29 CFR 1630, 29 CFR 1625-1627, 41 CFR 60 and 49 CFR 27) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140 shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this contract. The provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR 35 and 29 CFR 1630 are incorporated by reference in this contract. In the execution of this contract, the contractor agrees to comply with the following minimum specific requirement activities of EEO:
a. The contractor will work with the contracting agency and the Federal Government to ensure that it has made every good faith effort to provide equal opportunity with respect to all of its terms and conditions of employment and in their review of activities under the contract.
b. The contractor will accept as its operating policy thefollowing statement:
"It is the policy of this Company to assure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, color, national origin, age or disability. Such action shall include: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship, pre-apprenticeship, and/or on-the-job training." FHWA-1273 -- Revised May 1, 2012
Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021

2. EEO Officer: The contractor will designate and make known to the contracting officers and EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting and active EEO program and who must be assigned adequate authority and responsibility to do so.

3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action, or who are
substantially involved in such action, will be made fully cognizant of, and will implement, the contractor's EEO policy and contractual responsibilities to provide EEO in each grade and classification of employment. To ensure that the above agreement will be met, the following actions will be taken as a minimum:
a. Periodic meetings of supervisory and personnel office employees will be conducted before the start of work and then not less often than once every six months, at which time the contractor's EEO policy and its implementation will bereviewed and explained. The meetings will be conducted by the EEO Officer.
b. All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor. c. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in thecontractor's procedures for locating and hiring minorities and women. d. Notices and posters setting forth the contractor's EEO policywill be placed in areas readily accessible to employees, applicants for employment and potential employees.
e. The contractor's EEO policy and the procedures to implement such policy will be brought to the attention of employees by means of meetings, employee handbooks, or other appropriate means.

4. Recruitment: When advertising for employees, the contractor will include in all advertisements for employees the notation: "An Equal Opportunity Employer." All such advertisements will be placed in publications having a large circulation among minorities and women in the area from which the project work force would normally be derived.
a. The contractor will, unless precluded by a valid bargaining agreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minorities and women. To meet this requirement, the contractor will identify sources of potential minority group employees, and establish with such identified sources
procedures whereby minority and women applicants may be referred to the contractor for employment consideration. b. In the event the contractor has a valid bargaining agreement providing for exclusive hiring hall referrals, the contractor is expected to observe the provisions of that agreement to the extent that the system meets the contractor's compliance with EEO contract provisions. Where implementation of such an agreement has the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Federal nondiscrimination provisions. c. The contractor will encourage its present employees to refer minorities and women as applicants for employment.

Information and procedures with regard to referring such applicants will be discussed with employees.

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

The following procedures shall be followed:
a. The contractor will conduct periodic inspections of project sites to insure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel. b. The contractor will periodically evaluate the spread of wagespaid within each classification to determine any evidence of discriminatory wage practices.
c. The contractor will periodically review selected personnel actions in depth to determine whether there is evidence ofdiscrimination.

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

6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and increasing the skills of minorities and women who are applicants for employment or current employees. Such efforts should be aimed at developing full journey level status employees in the type of trade or job classification involved.
b. Consistent with the contractor's work force requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs, i.e., apprenticeship, and on-the-job training programs for the geographical area of contract performance. In the event a special provision for training is provided under this contract, this subparagraph will be superseded as indicated in the special provision. The contracting agency may reserve training positions for persons who receive welfare assistance in accordance with 23 U.S.C. 140(a). c. The contractor will advise employees and applicants for employment of available training programs and entrance
requirements for each.
d. The contractor will periodically review the training andpromotion potential of employees who are minorities and women and will encourage eligible employees to apply for such training and promotion.

Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021

7. Unions: If the contractor relies in whole or in part upon unionsas a source of employees, the contractor will use good faith efforts to obtain the cooperation of such unions to increase opportunities for minorities and women. Actions by the contractor, either directly or through a contractor's association acting as agent, will include the procedures set forth below:
a. The contractor will use good faith efforts to develop, in cooperation with the unions, joint training programs aimed toward qualifying more minorities and women for membership in the unions and increasing the skills of minorities and women so that they may qualify for higher paying employment.
b. The contractor will use good faith efforts to incorporate anEEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, national origin, age or disability. c. The contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, the contractor shall so certify to the contracting agency and shall set forth what efforts have been made to obtain such information.
d. In the event the union is unable to provide the contractor with a reasonable flow of referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, national origin, age or disability; making full efforts to obtain qualified and/or qualifiable minorities and women. The failure of a union to provide sufficient referrals (even though it is obligated to provide exclusive referrals under the terms of a collective bargaining agreement) does not relieve the contractor from the requirements of this paragraph. In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the contracting agency.

8. Reasonable Accommodation for Applicants / Employees
with Disabilities: The contractor must be familiar with the requirements for and comply with the Americans with Disabilities Act and all rules and regulations established there under.

Employers must provide reasonable accommodation in all
employment activities unless to do so would cause an undue hardship.

9. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The contractor shall not discriminate on the grounds of race, color, religion, sex, national origin, age or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The contractor shall take all necessary and reasonable steps to ensure nondiscrimination in the administration of this contract. a. The contractor shall notify all potential subcontractors and suppliers and lessors of their EEO obligations under this contract. b. The contractor will use good faith efforts to ensure subcontractor compliance with their EEO obligations.

FHWA-1273 -- Revised May 1, 2012

10. Assurance Required by 49 CFR 26.13(b):
a. The requirements of 49 CFR Part 26 and the State DOT’sU.S.

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

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

Such records shall be retained for a period of three years following the date of the final payment to the contractor for all contract work and shall be available at reasonable times and places for inspection by authorized representatives of the contracting agency and the FHWA.
a. The records kept by the contractor shall document the following:
(1) The number and work hours of minority and non-minority group members and women employed in each work classification on the project;
(2) The progress and efforts being made in cooperation with unions, when applicable, to increase employmentopportunities for minorities and women; and
(3) The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minorities and women.
b. The contractors and subcontractors will submit an annual report to the contracting agency each July for the duration of the project, indicating the number of minority, women, and nonminority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA-1391. The staffing data should represent the project work force on board in all or any part of the last payroll period preceding the end of July. If on-the-job training is being required by special provision, the contractor will be required to collect and report training data. The employment data should reflect the work force on board during all or any part of the last payroll period preceding the end of July.

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

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

Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021
IV. DAVIS-BACON AND RELATED ACT PROVISIONS
This section is applicable to all Federal-aid construction projects exceeding $2,000 and to all related subcontracts and lower-tier subcontracts (regardless of subcontract size). The requirements apply to all projects located within the right-of-way of a roadway that is functionally classified as Federal-aid highway. This excludes roadways functionally classified as local roads or rural minor collectors, which are exempt. Contracting agencies may elect to apply these requirements to other projects.

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

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

Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph 1.d. of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage
determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4).

Laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under paragraph 1.b. of this section) and the Davis-Bacon poster (WH–1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.
b. (1) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:

FHWA-1273 -- Revised May 1, 2012
(i) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (ii) The classification is utilized in the area by the construction industry; and
(iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.
(2) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their
representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(3) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Wage and Hour Administrator for determination. The Wage and Hour Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(4) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs 1.b.(2) or 1.b.(3) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.
c. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
d. If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.

Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021

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

3. Payrolls and basic records
a. Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid.

Whenever the Secretary of Labor has found under 29 CFR

5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.
b. (1) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the contracting agency. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals.

Instead the payrolls shall only need to include an individually identifying number for each employee ( e.g. , the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH–347 is available for this purpose from the Wage and Hour Division Web site at
http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and FHWA-1273 -- Revised May 1, 2012
current address of each covered worker, and shall provide them upon request to the contracting agency for transmission to the State DOT, the FHWA or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the contracting agency.
(2) Each payroll submitted shall be accompanied by a “Statement of Compliance,” signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the
persons employed under the contract and shall certify the following:
(i) That the payroll for the payroll period contains the information required to be provided under §5.5 (a)(3)(ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under §5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information is correct and complete;
(ii)That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR part 3;
(iii) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH–347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph 3.b.(2) of this section. (4) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code.
c. The contractor or subcontractor shall make the records required under paragraph 3.a. of this section available for inspection, copying, or transcription by authorized
representatives of the contracting agency, the State DOT, the FHWA, or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the FHWA may, after written notice to the contractor, the contracting agency or the State DOT, take such action as may be necessary to
cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.

Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021

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

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

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

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

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

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

FHWA-1273 -- Revised May 1, 2012
The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration.

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

In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved.
c. Equal employment opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30.
d. Apprentices and Trainees (programs of the U.S. DOT).

Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal-aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeymen shall not be greater than permitted by the terms of the particular program.

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

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

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

Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021
FHWA-1273 -- Revised May 1, 2012

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

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

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

Department of Labor, or the employees or their representatives.

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

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

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

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

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

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

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

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

VI. SUBLETTING OR ASSIGNING THE CONTRACT
This provision is applicable to all Federal-aid construction contracts on the National Highway System.

1. The contractor shall perform with its own organization contract work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the contracting agency. Specialty items may be performed by subcontract and the amount of any such specialty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635.116).
a. The term “perform work with its own organization” refers to workers employed or leased by the prime contractor, and equipment owned or rented by the prime contractor, with or without operators. Such term does not include employees or equipment of a subcontractor or lower tier subcontractor, agents of the prime contractor, or any other assignees. The term may include payments for the costs of hiring leased employees from an employee leasing firm meeting allrelevant Federal and State regulatory requirements. Leased
employees may only be included in this term if the prime contractor meets all of the following conditions:
(1) the prime contractor maintains control over the supervision of the day-to-day activities of the leased employees;
(2) the prime contractor remains responsible for the quality of the work of the leased employees;
(3) the prime contractor retains all power to accept or exclude individual employees from work on the project; and
(4) the prime contractor remains ultimately responsible for the payment of predetermined minimum wages, the submission of payrolls, statements of compliance and all other Federal regulatory requirements.
b. "Specialty Items" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid or propose on the contract as a whole and in general are to be limited to minor components of the overall contract.

Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021

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

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

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

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

VII. SAFETY: ACCIDENT PREVENTION
This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.

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

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

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

VIII. FALSE STATEMENTS CONCERNING HIGHWAY

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

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

Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness ofthese and similar acts, Form FHWA-1022 shall be posted on each Federal-aid highway project (23 CFR 635) in one or more places where it is readily available to all persons concerned with the project:
18 U.S.C. 1020 reads as follows:
"Whoever, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false statement, false representation, or false report as to the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or
Whoever knowingly makes any false statement, false
representation, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or
Whoever knowingly makes any false statement or false
representation as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal-aid Roads Act approved July 1, 1916, (39 Stat. 355), as amended and
supplemented;
Shall be fined under this title or imprisoned not more than 5 years or both."
IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL

WATER POLLUTION CONTROL ACT
This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.

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

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

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

Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021
FHWA-1273 -- Revised May 1, 2012
X. CERTIFICATION REGARDING DEBARMENT, SUSPENSION,

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

1. Instructions for Certification – First Tier Participants:
a. By signing and submitting this proposal, the prospective first tier participant is providing the certification set out below. b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective first tier participant shall submit an explanation of why it cannot provide the certification set outbelow.

The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective first tier participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. c. The certification in this clause is a material representation of fact upon which reliance was placed when the contracting agency determined to enter into this transaction. If it is later determined that the prospective participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the contracting agency may terminate this
transaction for cause of default.
d. The prospective first tier participant shall provide immediatewritten notice to the contracting agency to whom this proposal is submitted if any time the prospective first tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
e. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180 and 1200. “First Tier Covered Transactions” refers to any covered transaction between a grantee or subgrantee of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a grantee or subgrantee of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).
f. The prospective first tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction.
g. The prospective first tier participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transactions," provided by the department or contracting agency, entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold.
h. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, checkthe Excluded Parties List System website (https://www.epls.gov/), which is compiled by the General Services Administration. i. Nothing contained in the foregoing shall be construed to require the establishment of a system of records in order to render ingood faith the certification required by this clause. The knowledge and information of the prospective participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
j. Except for transactions authorized under paragraph (f) of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.
* * *

2. Certification Regarding Debarment, Suspension,Ineligibility and Voluntary Exclusion – First Tier Participants:
a. The prospective first tier participant certifies to the best ofits knowledge and belief, that it and its principals:
(1) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency;
(2) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;
(3) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (a)(2) of this certification; and
(4) Have not within a three-year period preceding this
application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. b. Where the prospective participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.

Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021

2. Instructions for Certification - Lower Tier Participants:
(Applicable to all subcontracts, purchase orders and other lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and 1200)
a.By signing and submitting this proposal, the prospective lowertier is providing the certification set out below.
b.The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
c. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. d.The terms "covered transaction," "debarred," "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180 and 1200. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. “First Tier Covered Transactions” refers to any covered transaction between a grantee or subgrantee of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a grantee or subgrantee of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers). e.The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated.
f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. g.A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the Excluded Parties List System website FHWA-1273 -- Revised May 1, 2012
h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and normally possessed by a prudent person in the ordinary course of business dealings.
i. Except for transactions authorized under paragraph e of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
* * * * *
Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Participants:

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

2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. * * * * *
XI. CERTIFICATION REGARDING USE OF CONTRACT FUNDS

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

1. The prospective participant certifies, by signing andsubmitting this bid or proposal, to the best of his or her knowledge and belief, that:
a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in
connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. b. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
(https://www.epls.gov/), which is compiled by the General Services Administration.

Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021

2. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352.

Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

3.The prospective participant also agrees by submitting its bid or proposal that the participant shall require that the language of this certification be included in all lower tier subcontracts, which exceed information of participant is not required to exceed that which is $100,000 and that all such recipients shall certify and disclose accordingly.
* * * * *
XII. USE OF UNITED STATES-FLAG VESSELS
This provision is applicable to all Federal-aid construction contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, or any other covered transaction. 46 CFR Part 381.

This requirement applies to material or equipment that is acquired for a specific Federal-aid highway project. 46 CFR 381.7. It is not applicable to goods or materials that come into inventories independent of an FHWA funded-contract.

When oceanic shipments (or shipments across the Great Lakes) are necessary for materials or equipment acquired for a specific Federalaid construction project, the bidder, proposer, contractor, subcontractor, or vendor agrees:

1. To utilize privately owned United States-flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to this contract, to the extent such vessels are available at fair and reasonable rates for United States-flag commercial vessels. 46 CFR 381.7.

2. To furnish within 20 days following the date of loading for shipments originating within the United States or within 30 working days following the date of loading for shipments originating outside the United States, a legible copy of a rated, ‘on-board’ commercial ocean bill-of-lading in English for each shipment of cargo described in paragraph (b)(1) of this section to both the Contracting Officer (through the prime contractor in the case of subcontractor bills-of-lading) and to the Office of Cargo and Commercial Sealift (MAR-620), Maritime Administration, Washington, DC 20590. (MARAD requires copies of the ocean carrier's (master) bills of lading, certified onboard, dated, with rates and charges. These bills of lading may contain business sensitive information and therefore may be submitted directly to MARAD by the Ocean Transportation Intermediary on behalf of the contractor). 46 CFR 381.7.

Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021

12. FEMALE AND MINORITY GOALS
To comply with Section II, "Nondiscrimination," of "Required Contract Provisions Federal-Aid Construction Contracts," the following are for female and minority utilization goals for Federal-aid construction contracts and subcontracts that exceed $10,000:

The nationwide goal for female utilization is 6.9 percent.

The goals for minority utilization [45 Fed Reg 65984 (10/3/1980)] are as follows:

MINORITY UTILIZATION GOALS
Economic
Area
Goal
(Percent)
174 Redding CA:

Non-SMSA (Standard Metropolitan Statistical Area) Counties:

CA Lassen; CA Modoc; CA Plumas; CA Shasta; CA Siskiyou; CA Tehama

6.8 175
Eureka, CA
Non-SMSA Counties:

CA Del Norte; CA Humboldt; CA Trinity

6.6 San Francisco-Oakland-San Jose, CA:

28.9 25.6

19.6 14.9

9.1 17.1

23.2 SMSA Counties:
7120 Salinas-Seaside-Monterey, CA
CA Monterey
7360 San Francisco-Oakland
CA Alameda; CA Contra Costa; CA Marin; CA San Francisco; CA San Mateo 7400 San Jose, CA
176 CA Santa Clara, CA
7485 Santa Cruz, CA
CA Santa Cruz
7500 Santa Rosa
CA Sonoma
8720 Vallejo-Fairfield-Napa, CA
CA Napa; CA Solano
Non-SMSA Counties:

CA Lake; CA Mendocino; CA San Benito
177
Sacramento, CA:

SMSA Counties:
6920 Sacramento, CA
CA Placer; CA Sacramento; CA
Yolo Non-SMSA Counties
CA Butte; CA Colusa; CA El Dorado; CA Glenn; CA Nevada; CA Sierra; CA Sutter; CA Yuba

16.1 14.3
Stockton-Modesto, CA:

SMSA Counties:
5170 Modesto, CA 12.3
178 CA Stanislaus
8120 Stockton, CA 24.3
CA San Joaquin
Non-SMSA Counties 19.8
CA Alpine; CA Amador; CA Calaveras; CA Mariposa; CA Merced; CA Tuolumne Fresno-Bakersfield, CA
SMSA Counties:
179 0680 Bakersfield, CA 19.1
CA Kern
2840 Fresno, CA 26.1
Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021
CA Fresno
Non-SMSA Counties:

CA Kings; CA Madera; CA Tulare

23.6 Los Angeles, CA:

11.9 28.3

21.5 19.0

19.7 24.6
SMSA Counties:
0360 Anaheim-Santa Ana-Garden Grove, CA
CA Orange
4480 Los Angeles-Long Beach, CA
CA Los Angeles
180 6000 Oxnard-Simi Valley-Ventura, CA
CA Ventura
6780 Riverside-San Bernardino-Ontario, CA
CA Riverside; CA San Bernardino
7480 Santa Barbara-Santa Maria-Lompoc, CA
CA Santa Barbara
Non-SMSA Counties
CA Inyo; CA Mono; CA San Luis Obispo
San Diego, CA:

16.9 18.2
SMSA Counties
181 7320 San Diego, CA
CA San Diego
Non-SMSA Counties
CA Imperial
For the last full week July during which work is performed under the contract, you and each non materialsupplier subcontractor with a subcontract of $10,000 or more must complete Form FHWA PR-1391 (Appendix C to 23 CFR 230). Submit the forms by August 15.

13. TITLE VI ASSURANCES
During the performance of this Agreement, the contractor, for itself, its assignees and successors in interest (hereinafter collectively referred to as CONTRACTOR) agrees as follows:
(1) Compliance with Regulations: CONTRACTOR shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement.
(2) Nondiscrimination: CONTRACTOR, with regard to the work performed by it during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment. CONTRACTOR shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations. (3) Solicitations for Sub-agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CONTRACTOR for work to be performed under a Sub- agreement, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by CONTRACTOR of the CONTRACTOR’S obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin.
(4) Information and Reports: CONTRACTOR shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the California Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021
Department of Transportation or FHWA to be pertinent to ascertain compliance with such Regulations or directives. Where any information required of CONTRACTOR is in the exclusive possession of another who fails or refuses to furnish this information, CONTRACTOR shall so certify to the California Department of Transportation or the FHWA as appropriate, and shall set forth what efforts CONTRACTOR has made to obtain the information. (5) Sanctions for Noncompliance: In the event of CONTRACTOR’s noncompliance with the nondiscrimination provisions of this agreement, the California Department of Transportation shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
(a) withholding of payments to CONTRACTOR under the Agreement within a reasonable period of time, not to exceed 90 days; and/or
(b) cancellation, termination or suspension of the Agreement, in whole or in part. (6) Incorporation of Provisions: CONTRACTOR shall include the provisions of paragraphs (1) through (6) in every sub-agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto.

CONTRACTOR shall take such action with respect to any sub-agreement or procurement as the California Department of Transportation or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONTRACTOR becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, CONTRACTOR may request the California Department of Transportation enter into such litigation to protect the interests of the State, and, in addition, CONTRACTOR may request the United States to enter into such litigation to protect the interests of the United States.

14. USE OF UNITED STATES-FLAG VESSELS (CARGO PREFERENCE ACT) The CONTRACTOR agrees1. To utilize privately owned United States-flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carries, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to this contract, to the extent such vessels are available at fair and reasonable rates for United States-flag commercial vessels.

2. To Furnish within 20 days following the date of loading for shipments originating within the United State or within 30 working days following the date of loading for shipments originating outside the United States, a legible copy of a rated “on-board” commercial ocean bill-of-lading in English for each shipment of cargo described in paragraph (1) of this section to both the Contracting Officer (through the prime contractor in the case of subcontractor bills-of-lading) and to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590.

3. To insert the substance of the provisions of this clause in all subcontracts issued pursuant to this contract.

Federal Trainee Program Special
Provisions (to be used when
applicable)

15. FEDERAL TRAINEE PROGRAM
For the Federal training program, the number of trainees or apprentices is .

This section applies if a number of trainees or apprentices is specified in the special provisions.

As part of your equal opportunity affirmative action program, provide on-the-job training to develop full journeymen in the types of trades or job classifications involved.

You have primary responsibility for meeting this training requirement.

If you subcontract a contract part, determine how many trainees or apprentices are to be trained by the subcontractor. Include these training requirements in your subcontract.

Where feasible, 25 percent of apprentices or trainees in each occupation must be in their 1st year of apprenticeship or training.

Distribute the number of apprentices or trainees among the work classifications on the basis of your Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021
needs and the availability of journeymen in the various classifications within a reasonable recruitment area.

Before starting work, submit to the City/County of :

1. Number of apprentices or trainees to be trained for each classification

2. Training program to be used

3. Training starting date for each classification
Obtain the City/County's of _ approval for this submitted information before you start work. The City/County of credits you for each apprentice or trainee you employ on the work who is currently enrolled or becomes enrolled in an approved program.

The primary objective of this section is to train and upgrade minorities and women toward journeymen status. Make every effort to enroll minority and women apprentices or trainees, such as conducting systematic and direct recruitment through public and private sources likely to yield minority and women apprentices or trainees, to the extent they are available within a reasonable recruitment area. Show that you have made the efforts. In making these efforts, do not discriminate against any applicant for training.

Do not employ as an apprentice or trainee an employee:

1. In any classification in which the employee has successfully completed a training course leading to journeyman status or in which the employee has been employed as a journeyman

2. Who is not registered in a program approved by the US Department of Labor, Bureau of Apprenticeship and Training
Ask the employee if the employee has successfully completed a training course leading to journeyman status or has been employed as a journeyman. Your records must show the employee's answers to the questions.

In your training program, establish the minimum length and training type for each classification. The City/County of and FHWA approves a program if one of the following is met:

1. It is calculated to:
 Meet the your equal employment opportunity responsibilities  Qualify the average apprentice or trainee for journeyman status in the classification involved by the end of the training period

2. It is registered with the U.S. Department of Labor, Bureau of Apprenticeship and Training, and it is administered in a way consistent with the equal employment responsibilities of Federal-aid highway construction contracts
Obtain the State's approval for your training program before you start work involving the classification covered by the program.

Provide training in the construction crafts, not in clerk-typist or secretarial-type positions. Training is allowed in lower level management positions such as office engineers, estimators, and timekeepers if the training is oriented toward construction applications. Training is allowed in the laborer classification if significant and meaningful training is provided and approved by the division office. Off-site training is allowed if the training is an integral part of an approved training program and does not make up a significant part of the overall training.

The City/County of reimburses you 80 cents per hour of training given an employee on this contract under an approved training program:

1. For on-site training

2. For off-site training if the apprentice or trainee is currently employed on a Federal-aid project and you do at least one of the following:
 Contribute to the cost of the training
 Provide the instruction to the apprentice or trainee
 Pay the apprentice's or trainee's wages during the off-site training period

3. If you comply this section.

Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language

January 2021
Each apprentice or trainee must:

1. Begin training on the project as soon as feasible after the start of work involving the apprentice's or trainee's skill

2. Remain on the project as long as training opportunities exist in the apprentice's or trainee's work classification or until the apprentice or trainee has completed the training program
Furnish the apprentice or trainee:

1. Copy of the program you will comply with in providing the training Project # Exhibit C rev022221

EXHIBIT C

MANDATORY BOND FORM TEMPLATES ON FOLLOWING PAGES
Bond No. ______________________________
*Power of Attorney must be certified on this date or later.

PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS, That , (Contractor Name) a , as Principal, and , (corporation, partnership or individual) (Surety Name) a corporation organized and existing under the laws of __________________________, and authorized to transact a general surety business in, the State of California, are held and firmly bound unto the City of Oakland, a municipal corporation, as Obligee, in the sum of ($ ), lawful money of the United States of America, to be paid to the said Obligee, for which payment well and truly to be made, we bind ourselves and each of our heirs, executors, administrators, successors and assigns jointly and severally firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH, that
WHEREAS, Principal has entered into a contract dated with Obligee to furnish all necessary machinery, tools, apparatus, other means of construction, and all the materials specified by the Contract to do the work in the manner and time prescribed by and in accordance with Drawings and Specifications for Project No. Number - Name and Contractor’s bid received . Said work shall be commenced on the date of the Notice to Proceed and shall be completed within working days of said date.

NOW, THEREFORE, if Principal well and faithfully performs all the conditions and covenants of the said Contract, according to the true intent and meaning thereof, upon its part to be kept and performed, then the above obligation shall be void. Otherwise it shall remain in full force and virtue.

PROVIDED, FURTHER, that the Surety for value received hereby stipulates and agrees that death of individual Principal shall not relieve Surety of its obligation; that no amendment, change, extension of time, alteration or addition to the Contract or any feature or item or items of performance required therein or thereunder shall in any manner affect its obligations on or under this Bond; and that Surety does hereby waive notice of such amendment, change, extension of time, alteration or addition to the Contract or any feature or item or items of performance required therein or thereunder.

IN WITNESS WHEREOF, the instrument is executed in three (3) counterparts, each one of which shall be deemed an original, this * day of of .
[Seal]
(Contractor Name)
By: [Seal] (Must be President, Vice President, Owner, Partner, Manager or Member) Title:
(Surety Name)
By: [Seal]
Bond No. ______________________________
*Power of Attorney must be certified on this date or later.

PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS, That , (Contractor Name) a , as Principal, and , (corporation, partnership or individual) (Surety Name) a corporation organized and existing under the laws of __________________________, and authorized to transact a general surety business in, the State of California, are held and firmly bound unto the City of Oakland, a municipal corporation, as Obligee, in the sum of ($ ), lawful money of the United States of America, to be paid to the said Obligee, for which payment well and truly to be made, we bind ourselves and each of our heirs, executors, administrators, successors and assigns jointly and severally firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH, that
WHEREAS, Principal has entered into a contract dated with Obligee to furnish all necessary machinery, tools, apparatus, other means of construction, and all the materials specified by the Contract to do the work in the manner and time prescribed by and in accordance with Drawings and Specifications for Project No. Number - Name and Contractor’s bid received . Said work shall be commenced on the date of the Notice to Proceed and shall be completed within working days of said date.

NOW, THEREFORE, if Principal well and faithfully performs all the conditions and covenants of the said Contract, according to the true intent and meaning thereof, upon its part to be kept and performed, then the above obligation shall be void. Otherwise it shall remain in full force and virtue.

PROVIDED, FURTHER, if Principal shall promptly make payment to all persons, firms, subcontractors, corporations, and otherwise furnishing materials for or performing labor in the prosecution of the work provided for in such Contract, and any authorized extension or modification thereof, including all amounts due for the moment and tools consumed or used in connection with the construction of such work, and all insurance premiums on said work, then the above obligation shall be void. Otherwise it shall remain in full force and virtue.

PROVIDED, FURTHER, that the Surety for value received hereby stipulates and agrees that death of individual Principal shall not relieve Surety of its obligation; that no amendment, change, extension of time, alteration or addition to the Contract or any feature or item or items of performance required therein or thereunder shall in any manner affect its obligations on or under this Bond; and that Surety does hereby waive notice of such amendment, change, extension of time, alteration or addition to the Contract or any feature or item or items of performance required therein or thereunder.

PROVIDED, FURTHER, that no final settlement between the Obligee and the Principal shall abridge the right of any beneficiary hereunder, whose claim may be unsatisfied.

IN WITNESS WHEREOF, the instrument is executed in three (3) counterparts, each one of which shall be deemed an original, this * day of of .
[Seal]
(Contractor Name)
By: [Seal] (Must be President, Vice President, Owner, Partner, Manager or Member) Title:
(Surety Name)
By: [Seal]
*Power of Attorney must be certified on this date or later.

ACKNOWLEDGMENT

STATE OF CALIFORNIA
County of
On before me, , a 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(ties), 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 {SEAL}
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
1005340 – Courtland Creek Restoration
Appendix B: Insurance Requirements

Schedule Q

CONSTRUCTION CONTRACTOR INSURANCE REQUIREMENTS
(Revised 12/21/16)
Insurance Requirements
Section 1 Insurance Coverage Required of Contractors
Contractor shall procure, prior to commencement of service, and keep in force for the term of this contract, at Contractor's own cost and expense, the following policies of insurance or certificates or binders as necessary to represent that coverage as specified below is in place with companies doing business in California and acceptable to The City. If requested, Contractor shall provide the City with copies of insurance policies evidencing coverage shown below. The insurance listed hereunder shall be considered minimum requirements and any and all insurance proceeds in excess of the requirements shall be made available to the City.

A. Commercial General Liability insurance shall cover Bodily Injury, Property Damage and Personal Injury for Premises Operations, Products and Completed Operations, Independent Contractors and Contractual Liability. Coverage shall be at least as broad as Insurance Services Office Commercial General Liability coverage (occurrence Form CG 00 01).

I. Coverage afforded on behalf of the City of Oakland, Councilmembers, directors, officers, agents, employees and volunteer shall be primary insurance. Any other insurance available to the City, Councilmembers, directors, officers, agents, employees and volunteers under any other policies shall be excess insurance (over the insurance required by this Contract.

II. Limits of liability:

Contractor shall maintain commercial general liability (CGL) and, if necessary, commercial umbrella insurance with a limit of not less than $2,000,000 each occurrence, $2,000,000 general aggregate, and $2,000,000 products/completed operations aggregate. The general aggregate limit shall apply separately to this location/project or the general aggregate limit shall be twice the required occurrence limit.

B. Automobile Liability Insurance. Contractor shall maintain automobile liability insurance for bodily injury and property damage liability with a limit of not less than $1,000,000 each accident. Such insurance shall cover liability arising out of any auto (including owned, hired, and non-owned autos). Coverage shall be at least as broad as Insurance Services Office Form Number CA 00 01.

C. Worker's Compensation insurance as required by the laws of the State of California.

Coverage shall include Employers Liability coverage with limits not less than $1,000,000 each accident, $1,000,000 policy limit bodily injury by disease, $1,000,000 each employee bodily injury by disease. .The Contractor certifies that he/she is aware of the provisions of section 3700 of the California Labor Code, which requires every employer to provide Workers' Compensation coverage, or to undertake self-insurance in accordance with the provisions of that Code. The Contractor shall comply with the provisions of section 3700 of the California Labor Code before commencing performance of the work under this Contract and thereafter asrequired by that code.

D. Pollution Liability:

I. For Contractors engaged in: environmental remediation, emergency response, hazmat cleanup or pickup, liquid waste remediation, tank and pump cleaning, repair or installation, fire or water restoration or fuel storage dispensing, the Contractor must maintain Contractor's Pollution Liability Insurance of at least $1,000,000 for each occurrence and $2,000,000 in the aggregate.

IL For Contractors engaged in transporting waste, then transportation (1st and 3rd Party) must be included with the pollution liability.

III. Regardless of the coverage limits in I. through II. above, contractor’s coverage must be compliant with the Motor Carrier Act of 1980, California Vehicle Code Sections 34630-34634 and California Health and Safety Code Section 25169 E. Professional Liability/Errors and Omissions insurance as appropriate for design/build operations with limits not less than $2,000,000 each claim and $2,000,000 aggregate. If the professional liability/errors and omissions insurance is written on a claims made form:

I. The retroactive date must be shown and must be before the date of the contract or the beginning of work.

II. Insurance must be maintained and evidence of insurance must be provided for at least three (3) years after completion of the contract work.

III. If coverage is cancelled or non-renewed and not replaced with another claims made policy form with a retroactive date prior to the contract effective date, the contractor must purchase extended period coverage for a minimum of three (3) years after completion of work.

F. Builders' Risk/Course of Construction Insurance (CP 10 30) covering all risks of loss in an amount equal to the completed value form with no coinsurance penalty provisions and in an amount equal to the initial contract sum, subject to subsequent modification of the contract sum. The insurance shall apply on a replacement cost basis. The insurance shall name as insured the City of Oakland, the Contractor and all subcontractors in the work. The insurance shall cover the entire work at the site identified in the Scope of Work, including reasonable compensation for architects' services and expenses made necessary by an insured loss. Insured property shall include portions of the work located away from the site but intended for use at the site and shall also cover portions of the work in transit. The policy shall cover the cost of removing debris, including demolition Page2of4 Rev122116

as may be made legally necessary by the operation of any law, ordinance or regulation. The insurance shall be maintained in effect until the project has been accepted as substantially complete. The insurer shall waive all rights of subrogation against the City.

Section 2 Terms Conditions andEndorsements
The aforementioned insurance shall be endorsed and have all the following conditions:

Insured Status (Additional Insured): Contractor shall provide insured status using ISO endorsement CG 20 10 or its equivalent naming the City of Oakland, its Councilmembers, directors, officers, agents employees and volunteers as insureds in the Commercial General Liability policy for both ongoing and completed operations. IfContractor submits the ACORD Insurance Certificate, the insured status endorsement must be set forth on a CG 20 10 (or equivalent). A STATEMENT OF ADDITIONAL INSURED STATUS ON THE ACORD

INSURANCE CERTIFICATE FORM IS INSUFFICIENT AND WILL BE REJECTED AS PROOF OF MEETING THIS REQUIREMENT; and
A. Cancellation Notice: Contractor shall immediately provide written notice to the City of any notice of cancellation, notice of non-renewal, or any other material modification of the insurance coverages required to be provided under this Contract.

B. The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the contractor, its employees, agents and subcontractors.

C. Certificate holder is to be the same person and address as indicated in the "Notices" section of this Contract; and
D. Insurer shall carry insurance from an admitted company with a Best Rating of A VII or better.

Section 3 Deductibles and Self-Insured Retentions
Any deductible or self-insured retention must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductible or self-insured retentions as respects the City of Oakland, its Councilmembers, directors, officers, agents, employees and volunteers; or the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses.

Section 4 Replacement ofCoverage
In the case of the breach of any of the insurance provisions of this Contract, the City may, at the City's option, take out and maintain at the expense of Contractor, such insurance in the name of Contractor as is required pursuant to this Contract, and may deduct the cost of taking out and maintaining such insurance from any sums which may be found or become due to Contractor under this Contract.

Section 5 Insurance Interpretation
All endorsements, certificates, forms, coverage and limits.of liability referred to herein shall have the meaning given such terms by the Insurance Services Office as of the date of this Contract.

Section 6 Proof ofInsurance
Contractor will be required to provide proof of all insurance required for the work prior to execution of the contract, including copies of Contractor's insurance policies if and when requested. Failure to provide the insurance proof requested or failure to do so in a timely manner shall constitute ground for rescission of the contract award.

Section 7 Subcontractors
Should the Contractor subcontract out the work required under this agreement, they shall include all subcontractors as insureds under its policies or shall maintain separate certificates and endorsements for each subcontractor. As an alternative, the Contractor may require all subcontractors to provide at their own expense evidence of all the required coverages listed in this Schedule. If this option is exercised, both the City of Oakland and the Contractor shall be named as additional insured under the subcontractor's General Liability policy. All coverages for subcontractors shall be subject to all the requirements stated herein. The City reserves the right to perform an insurance audit during the course of the project to verify compliance with requirements.

Section 8 Waiver of Subrogation
Contractor waives all rights against the City of Oakland and its Councilmembers, officers, directors, and employees for recovery of damages to the extent these damages are covered by the forms of insurance coverage required above.

Section 9 Evaluation of Adequacy of Coverage
The City of Oakland maintains the rights to modify, delete, alter or change these requirements with not less than ninety (90) days prior written notice.

Section 10 Higher Limits of insurance
If the contractor maintains higher limits than the minimums shown above, the City shall be entitled to coverage for the higher limits maintained by the contractor. << END OF INSURANCE REQUIREMENTS >>
1005340 – Courtland Creek Restoration
Appendix C: Reference Documents

1. Permits required for Courtland Creek Restoration Project Avoidance, Minimization, and Mitigation Measures required for Project Work Permits for this work include the following. City is responsible for acquiring all permits.

1. California Department of Fish and Wildlife – Lake and Streambed Alteration Agreement (Section 1600) - EPIMS No. ALA-28690 R3

2. San Francisco Bay Regional Water Quality Control Board a. 401 Water Quality Certification or Waste Discharge Requirement b. NPDES Construction General Permit

3. US Army Corps of Engineers - Clean Water Act Section 404 Permit, in consultation with the United States Fish and Wildlife Service (USFWS)

4. City of Oakland - Creek Protection Permit

5. City of Oakland – Grading Permit
Included here are the following permits. The Grading Permit (#5) will be provided once issued.

1. California Department of Fish and Wildlife – Lake and Streambed Alteration Agreement (Section 1600) - EPIMS No. ALA-28690 R3

2. San Francisco Bay Regional Water Quality Control Board a. 401 Water Quality Certification or Waste Discharge Requirement b. NPDES Construction General Permit

3. US Army Corps of Engineers - Clean Water Act Section 404 Permit, in consultation with the United States Fish and Wildlife Service (USFWS)

4. City of Oakland - Creek Protection Permit
Also included here are Creek Protection Measures associated with the Creek Protection Permit.

State of California Natural Resources Agency GAVIN NEWSOM, Governor DEPARTMENT OF FISH AND WILDLIFE CHARLTON H. BONHAM, Director [Bay Delta Region
2825 Cordelia Road, Suite 100
Fairfield, CA 94534
(707) 428-2002
www.wildlife.ca.gov
November 3, 2022
Mr. Ariel Frink
FlowWest
2510 J Street, Suite 210
Sacramento, CA 95816
Dear Mr. Frink:

Notification of Lake or Streambed Alteration, EPIMS Notification No. ALA-28690 R3, Courtland Creek Restoration Project
The California Department of Fish and Wildlife (CDFW) had until 60 calendar days after date notification was deemed complete to submit a draft Lake or Streambed Alteration Agreement (Agreement) to you or inform you that an Agreement is not required. CDFW did not meet that date. As a result, by law, you may now proceed with the project described in your notification without an Agreement.

Please note that pursuant to Fish and Game Code section 1602, subdivision (a)(4)(D), if you proceed with this project, it must be the same as described and conducted in the same manner as specified in the notification and any modifications to that notification received by CDFW prior to August 23, 2022. This includes completing the project within the proposed term and seasonal work period and implementing all avoidance and mitigation measures to protect fish and wildlife resources specified in the notification. If the term proposed in your notification has expired, you will need to re-notify CDFW before you may begin your project. Beginning or completing a project that differs in any way from the one described in the notification may constitute a violation of Fish and Game Code section 1602.

Also note that while you are entitled to complete the project without an Agreement, you are still responsible for complying with other applicable local, state, and federal laws.

These include, but are not limited to, Fish and Game Code sections 2080 et seq. (species listed as threatened or endangered, or a candidate for listing under the California Endangered Species Act); section 1908 (rare native plants); sections 3511, 4700, 5050, and 5515 (fully protected species); section 3503 (bird nests and eggs); section 3503.5 (birds of prey); section 5650 (water pollution); section 5652 (refuse disposal into water); section 5901 (fish passage); section 5937 (sufficient water for fish); and section 5948 (obstruction of stream).

Finally, if you decide to proceed with your project without an Agreement, you must have a copy of this letter and your notification with all attachments available at all times at the work site.

Mr. Ariel Frink
November 3, 2022

If you have any questions regarding this letter, please contact Marcia Grefsrud, Environmental Scientist at (707) 644-2812 or by email at [email protected].

Sincerely,
Craig J. Weightman, Environmental Program Manager
ec: California Department of Fish and Wildlife
Brenda Blinn, Senior Environmental Scientist (Supervisory) Marcia Grefsrud, Environmental Scientist

GAVIN NEWSON

CALIFORNIA JARED BLUMENFELD
Water Boards
San Francisco Bay Regional Water Quality Control Board

GOVERNOR

SECRETARY FOR

ENVIRONMENTAL PROTECTION
CLEAN WATER ACT SECTION 401 WATER QUALITY CERTIFICATION

AND ORDER

FOR THE
Courtland Creek Restoration Project
Alameda County
Sent via electronic mail: No hard copy to follow
Effective Date: August 31, 2022
RM: 448358
Place ID: 882000
WDID No. 2 CW 448358
Corps File No: SPN-2021-00453S
Applicant: City of Oakland
250 Frank H Ogawa Plaza, Suite 4314
Oakland CA, 94612
Phone: (510) 238-6191
Attn: Jennifer Stern, Project Manager
Email: [email protected]
Water Board Brian Wines
Staff: 1515 Clay Street, Suite 1400
Oakland, CA 94612
Phone: (510) 622-5680
Email: [email protected]
Water Quality Certification RM: 448358
Courtland Creek Restoration Project WDID# 2 CW 448358
i
Table of Contents

1. Project ............................................................................................................... 1

1.1 Site Description .......................................................................................... 1

1.2 Background................................................................................................ 1

1.3 Construction Summary .............................................................................. 2

2. Impacts to Waters of the State ........................................................................ 4

2.1 Fill and Discharge ...................................................................................... 4

3. Mitigation .......................................................................................................... 6

4. California EcoAtlas .......................................................................................... 8

5. CEQA Compliance ............................................................................................ 8

6. Conditions ......................................................................................................... 9

6.1 Regulatory Compliance and Work Windows.............................................. 9

6.2 General Construction ............................................................................... 10

6.3 Pre-Construction Reporting and Other Requirements ............................. 12

6.4 Active Construction and Post-Construction Reporting Requirements ...... 13

6.5 Mitigation and Monitoring Requirements.................................................. 14

6.6 Administrative and General Compliance.................................................. 15

6.7 Standard Conditions ................................................................................ 17

6.8 Annual Fees............................................................................................. 17 Water Quality Certification RM: 448358
Courtland Creek Restoration Project WDID# 2 CW 448358

Certification and Order Coverage
This Clean Water Act (CWA) section 401 Water Quality Certification (Certification) and Order (Order) is issued to the City of Oakland (Permittee; City).

Pursuant to CWA section 404, the Permittee has applied to the U.S. Army Corps of Engineers, Regulatory Branch (Corps) for authorization to fill and discharge to waters of the U.S. under a CWA Section 404 Nationwide Permit (NWP) 27 (Aquatic Habitat Restoration Projects) (Corps File No. SPN-2021-00453S).

The Permittee applied to the San Francisco Bay Regional Water Quality Control Board (Water Board) requesting Certification verifying the Courtland Creek Restoration Project (Project) does not violate State water quality standards. The application for Certification was received on June 28, 2022 (Application). The following sections are derived from the Application.

1. Project
The Project purpose is to restore three reaches of Courtland Creek (Creek) in the City.

The Project will restore 950 linear feet of the Creek through grading, slope stabilization, and native plant restoration.

1.1 Site Description
The Project site is located in the Peralta Creek Watershed within the City. The Creek has been extensively modified due to extensive urban development in the watershed. At the Project site, the Creek flows through a dense, urban neighborhood. The Project will occur along three reaches where the Creek flows above ground through a City-owned park (Project reaches). Courtland Creek Park is a narrow, discontinuous park due to roads and other urban infrastructure breaking up a mix of culverted and daylighted reaches within the several blocks that make-up the park. Stream flows enter the upper reach at Brookdale Avenue through a series of upstream storm drains and culverts that drain a heavily urbanized neighborhood (Lat. 37.779317; Long. -122.206015).

The three Project reaches are located between Brookdale and Fairfax Avenues (Brookdale reach), Congress and Fairfax Avenues (Congress reach), and San Carlos and 45th Avenues (Thompson reach) (Att. A, Fig. 1). These reaches carry seasonally intermittent flow that is controlled by upstream underground culverts. The three Project reaches function as habitat islands, containing daylighted sections of stream, dense riparian and upland tree canopy, and pockets of streamside wetlands, within the heavily urbanized Jefferson and Fairfax neighborhoods.

1.2 Background
After ten years of work by community members and organizations, Courtland Creek Park (Park) was established by the City in 1997. Dr. Walter Hood, a University of California professor of landscape architecture and 2019 MacArthur Fellow, collaborated with the community to design the Park, which melded together a five-block-long stretch of creek and an abandoned streetcar right-of-way. Dr. Hood's and the community’s Water Quality Certification RM: 448358
Courtland Creek Restoration Project WDID# 2 CW 448358

vision for the Park was to “provide a better physical link between the community and the creek.” Implementation of the park included removal of trash from the riparian corridor, streambed stabilization, plum tree planting along a former streetcar corridor, and the installation of art and recreation structures along the park trail. The intent of the design was to improve awareness of and engagement with the ecological and cultural contexts of the park for residents.

The City has continued engagement with the community and local residents to inform the design approach and goals for the current Project. The Project was originally identified through Oakland Measure DD bond for Clean Water and Safe Parks (Measure DD) in 2005 and was prioritized through a community-driven process. Many of these local stakeholders are still involved in Park clean-up and creek protection efforts and participated in the community engagement process for the Project.

1.3 Construction Summary
Designs for the Project are provided in the design sheets titled, Courtland Creek Restoration Project, 65% Design Set (Design Set) (City of Oakland, Bureau of Design and Construction, 6/27/2022). The first phase of construction will remove 29 eucalyptus trees from the Project site. This will be completed between November 15, 2022, and February 28, 2023, to avoid impacts to nesting bird species. The second phase will consist of construction and revegetation and will be implemented after April 15, 2023.

Construction will start at the upstream end of the Project reaches and work downstream.

Brookdale Reach
The Brookdale reach of Courtland Creek is located between Brookdale and Fairfax Avenues (Att A, second figure). This reach is characterized by deep incision, steep banks, and a dense canopy of non-native, invasive trees species, including blue gum eucalyptus and black acacia. Giant reed (Arundo donax) is present in the one area of this reach that is not significantly covered by mature trees. The uniform, overlysteepened banks threaten several homes on the north bank, where structures or paved areas are built very close to the edge of the bank.

The Project will remove invasive and non-native plant species; regrade banks to create shallower slopes; construct two floodplain terraces to support more varied native plant assemblages; and remove trash (Sheets C2 and C8 of the Design Set). Five to ten cubic yards of waste concrete pieces will be removed from the streambed in the upstream part of the reach. In the middle section of the reach, a chain link fence running near the bottom of the streambank and large embedded waste in the streambed will be removed.

Shallower slopes will be made possible by raising the bed of the stream through part of this reach and constructing a boulder cascade at the downstream end of the grading to hold the raised bed material in place. The boulder cascade will be eight feet wide at its widest point and 50 feet long. It will be constructed from rock, with engineered streambed material, consisting of gravel and fines, injected to fill voids between boulders Water Quality Certification RM: 448358
Courtland Creek Restoration Project WDID# 2 CW 448358

and to fill the channel upstream of the boulder cascade. The shallow slopes will be supported by bio-engineered coir blocks (Bio-D blocks). Bio-D blocks consist of coconut fiber coir fabric and backfill material and do not include any plastic or metal materials (Sheets C13 and C14 of the Design Set). Bio-D blocks will be installed in lifts, with willow pole cuttings placed between each lift. Two courses of 24-inch diameter rock will be installed at the toe of the stream bank along 35 linear feet at the outlet of the upstream culvert. Bare surfaces will be stabilized with hydroseeding. This reach is generally dry during the summer construction season. If flow is present, a dewatering system will be constructed to enable work within the streambed (Sheet C4 in the Design Set).

A flow bifurcation structure operated by Alameda County Flood Control and Water Conservation District (ACFCWCD) is located in the left bank of the Creek near the downstream end of the Brookdale Reach. This bifurcation structure diverts most of the flow from the main channel into a culverted bypass channel, resulting in a significant decrease in flow in the Congress and Thompson Reaches. The Project design will add a 10-foot long by 6-inch tall lip to the bifurcation structure to increase the amount of flow that remains in the downstream Creek channel during baseflows, without increasing the flow during peak storm flows. If flow is present during construction work in the Thompson and Congress reaches, a coffer dam will be installed adjacent to the bifurcation structure to dewater the two downstream reaches.

Revegetation with native riparian and woodland species will create a mosaic of shrub, mid-canopy, and high canopy plants. The project will create a new trail alignment, with fencing created from eucalyptus trees milled on site. Through incorporation of better public access, cleaned sight-lines, and safety features, the Project attempts to discourage illegal dumping and homeless encampments. Public access features are shown on Sheet L-1.0 of the Design Set.

Congress Reach
The Congress reach of Courtland Creek is moderately incised and supports a dense canopy of trees. The Project will remove invasive and non-native plant species, regrade banks to create shallower slopes, and incorporate low terraces to support more varied native plant assemblages (Sheets C2 and C9 of the Design Set; Att A, third figure).

Several large slabs of concrete embedded in the bank and a steel pipe protruding from the bank will be removed during grading of a floodplain terrace in this reach.

Revegetation with native riparian and woodland species will be performed similar to the Brookdale reach. An overlook feature and realigned trail will be located above the top of bank in the Congress Reach. The overlook feature will be supported by a crib wall with a vegetated face constructed on the Creek bank. The crib wall will be built from on-site eucalyptus trees (Sheet C16 of the Design Set) and will have maximum dimensions of 14 feet exposed height, 18 feet total height, 15 feet width at base, and 40 feet long.

Thompson Reach
The Thompson Reach is characterized by natural terracing on the south bank that contains a variety of native and non-native wetland species and a small redwood grove.

Water Quality Certification RM: 448358
Courtland Creek Restoration Project WDID# 2 CW 448358

While the north bank is generally overly-steepened, the south bank contains enough topographic complexity to support an inset wetland bench with several native plant species, including some obligate wetland plants. This reach also supports numerous non-native or invasive species as well, and has occasionally been observed to have illegal trash dumping. The Project will remove invasive and non-native plant species, remove existing concrete (including a portion of the apron at the downstream culvert mouth), remove trash, and revegetate the reach with native riparian, woodland, seasonal wetland, and upland species (Sheets C2, C9, C17, and L- 4.2 of the Design Set; Att A, fourth figure).

2. Impacts to Waters of the State
The Water Board has independently reviewed the Project record to analyze impacts to water quality and the environment and designated beneficial uses within the Project’s watershed. The San Francisco Bay Basin Water Quality Control Plan (Basin Plan) defines the beneficial uses of waters of the State. The Project will impact Courtland Creek, which is a tributary to Peralta Creek. Peralta Creek has the following existing beneficial uses: warm freshwater habitat, wildlife habitat, water contact recreation, and noncontact water recreation. By the tributary rule, the beneficial uses assigned to a water body are assumed to apply to its tributaries.

2.1 Fill and Discharge
Temporary and permanent impacts to the Creek channel may result in temporary impacts to the beneficial uses of the Creek, but Project impacts have been designed to result in long-term ecological benefits to riparian habitat quality in the Project reaches.

Construction-related temporary impacts, permanent impacts, and long-term benefits are described for each activity below and quantified in Table 2. The project disturbance boundary is shown on Figure 2.

Project implementation will permanently impact 0.60 acres of waters of the State (Table 1), consisting of creek channel, and temporarily impact 1.82 acres of waters of the State (Table 2), consisting of creek channel. Permanent and temporary impacts will extend over 900 linear feet of creek channel. The Project will result in net fill of 132 cubic yards in the Project reaches (Table 3).

Water Quality Certification RM: 448358
Courtland Creek Restoration Project WDID# 2 CW 448358

Table 1: Permanent Impacts to the Creek Channel.

Permanent Impacts
Channel Modification Length
(Linear Feet)
Area
(Acres)
Boulder Cascade (Rock) 50 0.02
Slope Grading 495 0.32
Channel Fill (engineered streambed material) 218 0.05
Bifurcation Structure 10 Less than 0.01
Bio-D Blocks 80 0.02
Natural Crib Wall 20 Less than 0.01
Floodplain Terraces 241 0.06
Channel Reshaping 144 0.10
Total 900* 0.60
*Some impacts overlap, but the net length of impacts along the channel is 900 feet.

Table 2: Temporary Impacts to the Creek
Temporary Impacts
Activity Length
(Linear Feet)
Area
(Acres)
Invasive Vegetation Removal Beyond Grading Areas 900 0.81 Staging, Access, and other Miscellaneous Areas N/A 0.99 Total 900 1.82
Water Quality Certification RM: 448358
Courtland Creek Restoration Project WDID# 2 CW 448358

Table 3: Fill and Excavation
Fill
Type of Material Cubic Yards
Engineered Streambed 153
Rock 66
Native Soil 92
Total Fill 311
Excavation
Type of Material Cubic Yards
Native Soil 164
Waste Concrete 15
Total Excavation 179
Net Fill 132 Cubic Yards
Trees to be removed are shown and listed on Sheets C6 and C7 in the Design Set.

Across all three Project reaches, 77 trees will be removed, 51 of which are non-native, including 29 eucalyptus. Native trees to be removed by the Project are classified as being in poor health.

3. Mitigation
The Project is a restoration project that will improve channel stability and vegetation within the Creek. Mitigation for the Project’s impacts to waters of the State will consist of the successful implementation of the Courtland Creek Restoration Project Monitoring and Maintenance Plan (MMP) (FlowWest & Restoration Design Group, August 2022).

The Project reaches will be monitored for 10 years after Project construction in conformance with the Monitoring Protocols and Procedures in Section D of the MMP.

Monitoring of wetland habitat will be conducted on the floodplain terraces in the Brookdale and Congress reaches. In all project reaches, percent survivorship of native species will be evaluated semi-annually in the first year, and annually thereafter for the next four years. The Project goal is to attain 80 percent survival of native plants after five years. The native percent plant cover goal is to attain 75 percent cover by Year 5.

Interim performance criteria for percent cover by natives are greater than 5 percent for Year 1, greater than 20 percent for Year 2, greater than 50 percent for Year 3, greater than 70 percent for Year 4, and greater than 75 percent by Year 5. Percent survivorship of native wetland species will be measured using the Line Intercept Transect protocol.

Water Quality Certification RM: 448358
Courtland Creek Restoration Project WDID# 2 CW 448358

At least 5 transects will be designated during the first year and will be used in subsequent years for monitoring. Outside of the transects, visual monitoring along the entire floodplain terrace will assess the extent of bare areas.

In the riparian corridor, percent cover of native understory in vegetated areas and survivorship of native trees and shrubs will be evaluated semi-annually in the first year, and annually thereafter for the next four years. Interim performance criteria for percent cover by natives are greater than 5 percent for Year 1, greater than 20 percent for Year 2, greater than 50 percent for Year 3, greater than 70 percent for Year 4, and greater than 75 percent by Year 5. The Line Intercept Transect method will be used and transects may extend across riparian and wetland boundary extents to improve efficiency in monitoring activities. Native tree percent survivorship will be measured using study plots that extend 25 feet upstream and downstream of the transects. The success criterion for native tree and shrub survivorship is 80 percent survival after Year

5. Based upon the monitoring results, the Project’s vegetation specialist may determine that modifications to the original revegetation plans are necessary due to different or changing conditions (e.g., there may be natural native plant colonization that is different than the species in the planting plan or there might be areas subject to frequent scour or too dry to support the intended vegetation cover). If vegetation goals are not being met during the first five years of monitoring, the vegetation specialist will propose a modified planting palette that complies with hydraulic objectives and the project goals Bank stabilization treatments in the Brookdale Reach will be monitored by visual inspection and/or conducting 3 to 4 cross sections per stabilized bank. This data will initially be collected in the as-built survey. Bank treatments will be inspected visually at least annually, with photographic monitoring in years 1 through 6, 8, and 10.

The channel corridor will be widened in the Brookdale Reach at the floodplain terrace and the cascade structure and in the Congress Reach at the floodplain terrace. These modifications will be monitored using visual inspections and/or conducting 3 to 4 cross sections per floodplain terrace. In addition, 3 to 4 cross section surveys and a longitudinal profile survey down the channel will be collected for the as-built survey.

Surveys will also be conducted after 2-year storm events for up to 5 years. If flows do not reach a 2-year storm event, then floodplain terraces will be inspected visually at least annually, with photographic monitoring performed in years 1 through 6, 8, and 10.

Avoidance, minimization, and mitigation measures will be taken before, during, and after construction in order to protect sensitive species and Courtland Creek from potential construction-related impacts.

The following avoidance and minimization measures will be implemented to protect Courtland Creek from any contamination or siltation during construction and postconstruction:

No equipment or vehicles will be stored or staged within the creek banks.

Water Quality Certification RM: 448358
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Cofferdams and the bifurcation structure will be used to prevent any impacts to in-stream water quality from construction activities. Any water present during construction in the Brookdale reach will be retained behind a cofferdam and pumped onto the bank.

After trees are felled, stumps will be ground to below ground surface using a stump grinder and covered with mulch.

Disturbed soil surfaces will be covered with 3 to 4 inches of wood mulch or weed-free straw
After construction, if erosion is observed around individual trees that were removed, coir logs or other equivalent measures will be installed downslope of these areas to trap sediment.

4. California EcoAtlas
Regional, state, and national studies have determined that tracking of mitigation and restoration projects must be improved to better assess the performance of these projects, following monitoring periods that last several years. To effectively carry out the State’s Wetlands Conservation Policy of no net loss to wetlands, the State needs to closely track both losses and successes of mitigation and restoration projects affecting wetlands and other waters of the State. The Water Board must also track project performance in Bay Area creeks subject to routine repair and maintenance activities, such as recurring instabilities. Therefore, we adopted the digital interactive mapping tool called EcoAtlas.
[1] EcoAtlas is a web-based tool that integrates maps, project plans, site conditions, restoration efforts, and other elements on a project-by-project basis based on data inputs. Accordingly, we require the Permittee to upload their Project information to EcoAtlas with the Project Tracker tool at https://ptrack.ecoatlas.org (see Condition 9).

The San Francisco Estuary Institute developed EcoAtlas and maintains detailed instructions for Project Tracker on its website at https://ptrack.ecoatlas.org/instructions.

5. CEQA Compliance
In conformance with the requirements of CEQA, the City prepared an Environmental Impact Report for the Measure DD Implementation Project (EIR) (SCH No. 2006122048) in 2006. The Measure DD Implementation Project implements the Oakland Trust for Clean Water and Safe Parks Bond Measure (Measure DD) that authorized funding for physical improvements to existing parks; acquisition of land for new parks; development of new parks and recreation facilities; clean water measures; restoration and rehabilitation of recreation buildings; and implementation of creek and waterway protection and restoration activities. The City, acting as the CEQA lead agency, filed a Notice of Determination for the Final EIR with the State Clearinghouse on April 3, 2008. The activities covered by this Certification were reviewed in conformance with the requirements of CEQA in the EIR. The Water Board is a responsible agency under CEQA. The Water Board has considered the environmental [1] Source: California Wetlands Monitoring Workgroup (CWMW). EcoAtlas. Accessed March 12, 2019. https://www.ecoatlas.org. CWMW includes SFEI, State Board, U.S. EPA-Region IX, and other agencies with similar goals to track effects of projects in wetlands and other aquatic habitats.

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documentation and found that significant impacts to waters of the State identified therein have been mitigated to less than significant levels, with the mitigation measures incorporated in this Certification.

6. Conditions
I, Eileen White, Executive Officer, do hereby issue this Order certifying that any discharge from the proposed Project will comply with the applicable provisions of sections 301 (Effluent Limitations), 302 (Water Quality Related Effluent Limitations), 303 (Water Quality Standards and Implementation Plans), 306 (National Standards of Performance), and 307 (Toxic and Pretreatment Effluent Standards) of the CWA, and with other applicable requirements of State law. This discharge is also regulated under State Water Resources Control Board Order No. 2003-0017-DWQ, “General Waste Discharge Requirements for Dredge and Fill Discharges That Have Received State Water Quality Certification,” which requires compliance with all conditions of this Order, including the following:

6.1 Regulatory Compliance and Work Windows

1. Design Conformance. The Project shall be constructed in conformance with the Application materials and as described in this Certification, including the design sheets titled, Courtland Creek Restoration Project, 65% Design Set (Design Set) (City of Oakland, Bureau of Design and Construction, 6/27/2022). Any changes to the Project that may impact waters of the State must be accepted by the Executive Officer before they are implemented. To request Executive Officer acceptance, the Permittee shall submit the proposed revisions, clearly marked and described, to the attention of the Water Board staff listed on the cover page of this Certification. The Permittee shall not implement the proposed revisions until notified that they have been accepted by the Executive Officer;
Rationale: This condition is necessary to ensure compliance with the permit and applicable conditions and to ensure that the proposed work and final restoration work has been conducted in accordance with the permit and all applicable conditions. (California Water Code (CWC) Section 13264).

2. Corps Compliance. The Permittee shall adhere to the conditions of the NWP issued by the Corps (Corps File No. SPN-2021-00453S;
Rationale: This condition is required pursuant to California Code of Regulations (CCR) Title 23, section 3856(e), which requires that copies be provided to the Water Boards of “any final and signed federal, state, and local licenses, permits, and agreements (or copies of the draft documents, if not finalized) that will be required for any construction, operation, maintenance, or other actions associated with the activity.”

3. Work Window. To protect water in the Creek from sediment generation or debris associated with construction activity and to minimize potential impacts to listed fish species, construction in waters of the State is restricted to the Water Quality Certification RM: 448358
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April 15 to October 31 dry season, or to the end of any extension granted by Water Board staff on the basis of five-day weather forecasts;

4. Precipitation and Construction Planning. Precipitation forecasts shall be considered when planning construction activities. The Permittee shall monitor the 72-hour forecast from the National Weather Service at http://www.nws.noaa.gov. When there is a forecast of more than 40% chance of rain, or at the onset of unanticipated precipitation, the Permittee shall remove all equipment from waters of the State, implement erosion and sediment control measures (e.g., jute, straw, coconut fiber erosion control fabric, coir logs, straw), and cease all Project activities. If any construction activities will occur after October 15, a Winterization Plan shall be submitted to the Executive Officer for review and acceptance and contain, but not be limited to, the following:
a) Activities and Timeline Description—for any proposed activity that will begin or end after October 1, the activity and its respective construction timeline, from start to finish, shall be described in detail. b) Erosion Control Measures—all erosion control measures shall be described in detail, including, but not limited to, the type of erosion control measure and its material, implementation timeline, and best management practices to be used during and after implementation;
Rationale: Conditions 3 and 4 are necessary to ensure avoidance and minimization of impacts to waters of the State and associated beneficial uses from construction activities (CWC Section 13369(b)(1)(B) and (C); Water Quality Control Plan for the San Francisco Bay Basin (Basin Plan) Section 4.19).

6.2 General Construction

5. Discharge Prohibition. No unauthorized construction-related materials or wastes (e.g., debris, soil, silt, excessive bark, rubbish, creosote-treated wood, raw cement/concrete or washings thereof, asphalt, paint or other coating material, oil or other petroleum products, or any other substances which could be hazardous to aquatic life) shall be allowed to enter into or be placed where they may be washed by rainfall or runoff into waters of the State. When construction is completed, any excess material shall be removed from the work area and any areas adjacent to the work area where such material may be discharged to waters of the State. To minimize construction impacts to the Creek, the Permittee shall implement the following measures:
a. Prior to the start of the rainy season, the Applicant shall ensure that disturbed areas of waters of the State and disturbed areas that drain to waters of the State are protected with correctly-installed and - maintained erosion control measures (e.g., jute, straw, coconut fiber erosion control fabric, coir logs), and/or revegetated with propagules (seeds, cuttings, divisions) of locally collected native plants. Erosion Water Quality Certification RM: 448358
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control textiles that include plastic monofilament netting are prohibited from use at the Project Site;
b. Where areas of bare soil are exposed during the rainy season, appropriate erosion and sediment control measures shall be used where sediment and/or earthen fill threaten to enter waters of the State. Sediment control structures shall be monitored for effectiveness and shall be repaired or replaced as needed. Buildup of soil behind silt fences shall be removed promptly and any breaches or undermined areas repaired at once;

6. Equipment Maintenance Prohibition. No fueling, cleaning, or maintenance of vehicles or equipment shall take place within waters of the State, or within any areas where an accidental discharge to waters of the State may occur; and construction materials and heavy equipment must be stored outside of waters of the State. When work within waters of the State is necessary, best management practices shall be implemented to prevent accidental discharges;

7. Beneficial Use Impacts. All work performed within waters of the State shall be completed in a manner that minimizes impacts to beneficial uses and habitat; measures shall be employed to minimize disturbances along waters of the State that will adversely impact the water quality of waters of the State.

Disturbance or removal of vegetation shall not exceed the minimum necessary to complete Project implementation. To minimize impacts to special status species and resident rainbow trout, a qualified biologist will be onsite to monitor the work area during all excavation and fill activities;

8. Concrete Curing: Concrete used in the Project shall be allowed to completely cure (a minimum of 28 days) or be treated with a sealant that is non-toxic to aquatic life before it comes into contact with flowing water (Note:

Demonstration of non-toxicity to aquatic life may be evaluated by measuring survival of test organisms in a 96-hour bioassay. The bioassay should be performed according to the most up-to-date protocols in 40 CFR part 136, currently Methods for Measuring the Acute Toxicity of Effluents and Receiving Water to Freshwater and Marine Organisms, 5th Edition (EPA-821-R-02-012), including sample collection, handling, and preservation in accordance with U.S. EPA protocols). Only sealants that have been tested and found non-toxic to freshwater aquatic life, including benthic macro-invertebrates, may be used on concrete surfaces that may come into contact with flowing water. Any sealant that may be used must be approved by CDFW prior to use. Concrete will be considered to be cured when water poured over the surface of concrete consistently has a pH of less than 8.5;
Rationale: Conditions 5 through 8 are necessary to ensure avoidance and minimization of impacts to waters of the State from construction activities (CWC section 13376 et seq.). These conditions are also necessary to minimize adverse impacts to water quality from construction activities to the maximum extent practicable (State Board Resolution Water Quality Certification RM: 448358
Courtland Creek Restoration Project WDID# 2 CW 448358

No. 68-16; 40 CFR Part 131.12 (a)(1); CWC section 13369; Basin Plan Section 2.1.14), to ensure that Project implementation does not impact water quality in ways that impair the designated beneficial uses of waters of the State (Basin Plan Chs. 3 and 4), to ensure minimization of impacts to waters of the State, and, as well as to ensure successful restoration of all temporary impacts authorized (State Board Resolution No. 68-16; 40 CFR Part 131.12 (a)(1); CWC sections 13264 and 13369; Basin Plan Chs. 3 and 4).

6.3 Pre-Construction Reporting and Other Requirements

9. EcoAtlas Form. The Permittee shall input Project information into EcoAtlas no later than 14 days from this Certification’s issuance date, consistent with Section 4 herein. The Project information shall be added to the Project Tracker tool in EcoAtlas online at https://ptrack.ecoatlas.org. Instructions for adding information to EcoAtlas are available at
https://ptrack.ecoatlas.org/instructions, or by contacting the Water Board staff listed on the cover page of this Certification. The Permittee shall notify the Water Board and submit documentation demonstrating the Project has been successfully added to EcoAtlas via email to RB2-
[email protected], or by mail to the attention of 401 Certifications Reports (see address on the letterhead), and include EcoAtlas_448358_ Courtland Creek Restoration Project;
Rationale: This condition is necessary to ensure compliance with the permit and applicable conditions (CWC section 13267).

10. Commencement of Construction. The Permittee shall submit a Start of Construction (SOC) Report acceptable to the Executive Officer. The SOC Report shall be submitted no later than seven days prior to start of initial ground disturbance activities. The SOC Report shall be submitted in the same timeframe specified herein for multiple construction seasons, if necessary, via email to [email protected], or by mail to the attention of 401 Certifications Reports (see address on the letterhead), and include SOC_448358_ Courtland Creek Restoration Project;
Rationale: This condition is necessary to assist in scheduling compliance inspections to ensure compliance with the permit and applicable conditions (CWC section 13267).

11. Photo-Documentation Points. Prior to the start of construction, the Permittee shall establish photo-documentation points at the Project site in conformance with the monitoring requirements established in the Courtland Creek Restoration Project Monitoring and Maintenance Plan (MMP) (FlowWest & Restoration Design Group, August 2022). These photodocumentation points shall be selected to provide views of the stabilized creek banks, floodplain terraces, boulder cascade in the Brookdale Reach, raised creek bed in the Brookdale reach, bifurcation structure in the Brookdale Reach, cribwall in the Congress Reach, and overall condition of Water Quality Certification RM: 448358
Courtland Creek Restoration Project WDID# 2 CW 448358

riparian revegetation. These photo-documentation points shall be used to track the pre- and post-construction condition of the Creek reaches at the Project site, and to track the progress of restoration plantings and the ongoing geomorphic stability of the Project reaches of the Creek. The Permittee shall prepare a site map(s) with the photo-documentation points clearly marked.

Prior to and following Project construction and mitigation planting, the Permittee shall photographically document the immediate pre- and postProject condition at the Project site. These post-construction photographs and map shall be submitted, along with the as-built and construction completion reports (See Conditions 12 and 13);
Rationale: This condition is necessary to ensure compliance with the permit and applicable conditions and to ensure that the proposed work and restoration work has been conducted in accordance with the permit and all applicable conditions (CWC section 13267).

6.4 Active Construction and Post-Construction Reporting Requirements

12. As-Built Report The Permittee shall prepare an as-built report acceptable to the Executive Officer upon the completion of Project construction, including the implementation of the restoration planting. The as-built report shall be submitted to the Water Board no later than 60 days after completing Project construction activities. The report shall include a description of the areas of actual disturbance during Project construction and the photographs and map specified in Condition 11. The report shall clearly identify and illustrate the Project activities that occurred and the locations where impacts to waters of the State occurred. The as-built report shall include the 100 percent construction plans marked with the contractor’s field notes that clearly depict any deviations made during construction from the designs reviewed by the Water Board. The as-built report(s) shall be sent via email to RB2- [email protected], or by mail to the attention of 401 Certifications Reports (see address on the letterhead), and include As-Built_ 448358_ Courtland Creek Restoration Project in the email subject line when sent electronically or in the cover letter for hard copy submissions; Rationale: This condition is necessary to ensure compliance with the permit and applicable conditions and to ensure that the proposed work and restoration work has been conducted in accordance with the permit and all applicable conditions (CWC section 13267).

13. Project Construction Completion Report. The Permittee shall submit a Notice of Project Construction Completion (NOC) acceptable to the Executive Officer to notify the Water Board that the Project has been completed. The Completion Notice shall be submitted to the Water Board no later than 60 days after completing all Project construction activities. The Completion Notice shall include the as-built reports (see Condition 12), the postconstruction photographs (see Condition 11), the date the first Project-related Water Quality Certification RM: 448358
Courtland Creek Restoration Project WDID# 2 CW 448358

disturbance of waters of the State occurred, and the date construction was completed for each Project activity. The Completion Notice shall be sent via email to [email protected], or by mail to the attention of 401 Certifications Reports (see address on the letterhead), and include NOC_448358_ Courtland Creek Restoration Project in the email subject line when sent electronically or in the cover letter for hard copy submissions; Rationale: This condition is necessary to ensure compliance with the permit and applicable conditions and to ensure that the proposed work and restoration work has been conducted in accordance with the permit and all applicable conditions (CWC section 13267).

6.5 Mitigation and Monitoring Requirements

14. Mitigation Implementation and Maintenance Requirements. The Permittee shall implement the MMP. This restoration project will be considered successful if the performance criteria listed in Section 3 of the body of this Certification are attained. The Project site shall be maintained as described in Section D of the MMP;

15. Monitoring. The Project site shall be monitored as described in Sections D and E of the MMP for at least 10 years, until the performance criteria in Section 3 of the body of this Certification are attained. Monitoring in years 1 through 5 shall include assessments of channel stability, vegetation percent survival, vegetation percent cover, and photographic monitoring from the photo-documentation points specified in Condition 11. Monitoring in years 6, 8, and 10 shall consist of photographic monitoring from the photodocumentation points specified in Condition 11;

16. Restoration Performance Criteria. The performance criteria in Section 3 of the body of this Certification shall be used to assess the success of this restoration project. If interim or final (year 5 for vegetation and year 10 for bank stability) performance criteria are not met in a monitoring year, the Permittee shall assess the deficiencies that led to the underperformance and recommend corrective actions, as necessary, to ensure performance criteria are met. This assessment and recommendations for corrective actions shall be included in the next required monitoring report (See Condition 17). If the Executive Officer concurs with proposed corrective actions they shall be implemented within the following year;

17.Monitoring Reports. The Permittee shall submit monitoring reports, acceptable to the Executive Officer, by January 31 following monitoring years 1 through 6, 8, and 10. The first monitoring year commences in the calendar year following completion of the Project. At the time of this Certification and Order, the Project is anticipated to be completed in 2023. Therefore, the first annual monitoring report shall be due on January 31, 2025, unless the Project is completed at a different time. Annual reports shall include, but not be limited to, the following:

Water Quality Certification RM: 448358
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a) Photographs: photographs taken during the monitoring year from the photodocumentation points specified in Condition 11 shall be included in each monitoring report. The photographs shall include captions with respect to the photograph’s point of view, direction of flow, locations of Project activities, location of the photo-documentation point, and date photographed.
b) Environmental Drivers: each monitoring report shall describe the precipitation events that occurred at the site during the monitoring year.

The effects of the Project and environmental drivers (e.g., precipitation events, drought events) on site conditions shall be described in reference to the monitoring year’s precipitation events.
c) Cumulative Monitoring: each annual report shall summarize all data from previous monitoring reports in addition to the current year’s monitoring data, including the need for, and implementation of, any remedial actions.

Monitoring data may include all relevant qualitative and quantitative data necessary to determine whether the site is stable. The final monitoring report shall document whether the temporarily impacted areas were restored to their pre-Project condition.

The overall Project and mitigation success shall be determined by, and acceptable to, the Executive Officer. If monitoring indicates that beneficial uses have been, or have the potential to be, adversely affected, the Permittee shall, in consultation with the appropriate agencies, identify remedial measures to be undertaken, including extension of the monitoring and reporting period until the final success criteria are met. If a Corrective Action Plan is required and approved by the Executive Officer, the Permittee shall implement all remedial measures identified therein. Annual monitoring reports shall be submitted via email to RB2- [email protected], or by mail to the attention of 401 Certifications Reports (see the address on the letterhead), and include AMR_448358_Courtland Creek Restoration Project in the email subject line when sent electronically or in the cover letter for hard copy submissions;
Rationale: Conditions 14 through 17 are necessary to ensure avoidance and minimization of impacts to waters of the State, as well as ensure successful compensatory mitigation and replacement of the functions of the aquatic environment that would be lost as a result from the construction of the proposed project (23 CCR sections 3013 and 3861(d), Dredge or Fill Procedures section IV. A.2(d) & B.4. CWC Section 13267; 33 CFR sections 332.4(a)(C)(4) and 332.6(a)(1)).

6.6 Administrative and General Compliance

18. Site Access. The Permittee shall grant Water Board staff or an authorized representative, upon presentation of credentials and other documents as may be required by law, permission to: (1) enter upon the Project site where a Water Quality Certification RM: 448358
Courtland Creek Restoration Project WDID# 2 CW 448358

regulated facility or activity is located or conducted, or where records are kept; (2) have access to and copy any records that are kept and are relevant to the Project or the requirements of this Order; (3) inspect any facilities, equipment, practices, or operations regulated or required under this Order; and (4) sample or monitor for the purposes of assuring Order compliance; Rationale: This condition is necessary to assist in scheduling compliance inspections and to ensure compliance with the permit and applicable conditions (CWC section 13267).

19.Certification and Order at Site. A copy of this Order shall be provided to any consultants, contractors, and subcontractors working on the Project. Copies of this Order shall remain at the Project site for the duration of this Order. The Permittee shall be responsible for work conducted by its consultants, contractors, and any subcontractors;
Rationale: This condition is necessary to ensure compliance with the permit and applicable conditions (CWC sections 13170 and 13245).

20. Ownership Change Notification. The Permittee shall provide a signed and dated notification to the Water Board of any change in ownership or interest in ownership of any Project area at least 10 days prior to the transfer of ownership. The purchaser shall also submit a written request to the Water Board to be named as the permittee in an amended order. Until this Order has been modified to name the purchaser as the permittee, the Permittee shall continue to be responsible for all requirements set forth in this Order; Rationale: This condition is necessary to ensure compliance with the permit and applicable conditions (CWC section 13264).

21. Water Quality Violations Notification. The Permittee shall notify the Water Board of any violations of water quality standards, along with the cause of such violations, as soon as practicable (ideally within 24 hours). Notification may be via telephone, email, delivered written notice, or other verifiable means;
Rationale: This condition is necessary to minimize adverse impacts to water quality (CWC sections 13385 and 13267).

22.Discharge Change Notification. In accordance with Water Code section 13260, the Permittee shall file with the Water Board a report of any material change or proposed change in the ownership, character, location, or quantity of this waste discharge. Any proposed material change in operation shall be reported to the Executive Officer at least 30 days in advance of the proposed implementation of any change. Changes to discharges include, but are not be limited to, significant new soil disturbances, proposed expansions of development, or any change in drainage characteristics at the Project site.

Water Quality Certification RM: 448358
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For the purpose of this Order, this includes any proposed change in the boundaries of the area of wetland/waters of the State to be impacted; Rationale: This condition is necessary to ensure compliance with the permit and applicable conditions (CWC section 13264).

23. Submittal of Reports. Where this Certification requires submittal of reports, including plans, reports, or related information, the submitted reports shall be acceptable to the Executive Officer;

24. Individual Waste Discharge Requirements. Should new information come to our attention that indicates a water quality problem with this Project, the Water Board may issue Waste Discharge Requirements pursuant to Water Code sections 13263 and/or 13377 and 23 CCR section 3857;

25. Expiration. This Order shall continue to have full force and effect regardless of the expiration or revocation of any federal license or permit issued for the Project;

6.7 Standard Conditions

26. Certification and Order Modification. This Order is subject to modification or revocation upon administrative or judicial review, including review and amendment pursuant to Water Code sections 13320 and 13330 and 23 CCR section 3867;

27. Hydroelectric Facilities. This Order does not apply to any discharge from any activity involving a hydroelectric facility requiring a Federal Energy Regulatory Commission (FERC) license or an amendment to a FERC license, unless the pertinent certification application was filed pursuant to 23 CCR subsection 3855(b) and that application specifically identified that a FERC license or amendment to a FERC license for a hydroelectric facility was being sought;

28.Application Fee. This Certification and Order is conditioned upon full payment of the required fee, including annual fees, as set forth in 23 CCR section 3833. The required $645 fee was calculated using the 2021/2022 Water Quality Certification Dredge and Fill Application Fee Calculator for Category D– Ecological Restoration and Enhancement Projects. Payment in full was received by the Water Board on July 21, 2022;
Rationale: Conditions 26 through 28 are standard conditions that “shall be included as conditions of all water quality certification actions” (23 CCR Section 3860(a)).

6.8 Annual Fees

29. Annual Fee. In accordance with 23 CCR section 2200, the Permittee shall pay an annual fee to the Water Board each fiscal year (July 1 – June 30) until Project construction activities are completed and an acceptable Notice of Water Quality Certification RM: 448358
Courtland Creek Restoration Project WDID# 2 CW 448358

Project Construction Completion is received by the Water Board. If monitoring is required, the Permittee shall pay an annual fee to the Water Board until monitoring activities are completed and an acceptable Notice of Mitigation Monitoring Completion is received by the Water Board (Note: the Annual Post Discharge Monitoring Fee may be changed by the State Water Board; at the time of Certification it was $323 per year for Category D projects). Annual fees will be automatically invoiced to the Permittee. The Permittee must notify the Water Board at Project and/or mitigation completion with a final report in order to request to terminate annual billing. Notification shall reference NMMC_ 448358_Courtland Creek Restoration Project and should be sent to the staff listed at the bottom of this Certification and to RB2- [email protected]. Water Board staff will verify the conditions of the Certification have been met and may request a site visit at that time to confirm the Project’s status and compliance with the Certification.

In addition to the information noted above, Conditions 1-8 and 14-17 are individually required to ensure compliance with narrative water quality objectives in the Basin Plan, the state anti-degradation policy (State Water Board Resolution No. 68-16), the California Wetlands Conservation Policy (Executive Order W-59-93, Basin Plan Chs. 4 and 5), and Regional Water Board policies for the protection of wetlands and waters (Basin Plan Ch. 4, including Ch. 4.23).

The conditions above are individually authorized as noted above and by 23 CCR Sections 3838 and 3859 and CWC Div. 7, Ch. 4, Article 4, Waste Discharge Requirements.

This Order applies to the Project as proposed in the application materials and designs referenced above in the conditions of Certification. Be advised that failure to implement the Project in conformance with this Order is a violation of this Certification. Any violation of Certification conditions is a violation of State law and subject to administrative civil liability pursuant to Water Code sections 13350, 13385, or 13399.2.

Failure to meet any condition of this Certification may subject the Permittee to civil liability imposed by the Water Board to a maximum of $25,000 per day of violation and/or $25 for each gallon of waste discharged in violation of this action above 1000 gallons. Any requirement for a report made as a condition to this Certification (e.g., conditions 9, 10, 12, 13, 17, 20, 21, 22, and 29) is a formal requirement pursuant to Water Code sections 13267 and 13383, and failure or refusal to provide, or falsification of such required report, is subject to civil liability as described in Water Code section 13268 and criminal liability under 13387. The burden, including costs, of these reports bears a reasonable relationship to the need for the report and the benefits to be obtained. Should new information come to our attention that indicates a water quality problem with this Project, the Water Board may issue Waste Discharge Requirements.

Water Quality Certification RM: 448358
Courtland Creek Restoration Project WDID# 2 CW 448358

If you have any questions concerning this Order, please contact Brian Wines of my staff at (510) 622-5680 or [email protected]. All future correspondence regarding this Project should reference RM 448358 as indicated at the top of this letter.

Sincerely,
__________________________
for Eileen White
Interim Executive Officer
Attachment A: Project Figures
cc: SWRCB, DWQ, [email protected]
Water Board, Victor Aelion, [email protected] CDFW, Marcia Grefsrud, [email protected]
U.S. EPA, Region IX:

Region IX Mailbox, [email protected]
Jennifer Siu, [email protected]
Corps:

Katerina Galacatos, [email protected]
Michael Orellana, [email protected]
FlowWest, Air Frink, [email protected]

ATTACHMENT A
Water Quality Certification for the
Courtland Creek Restoration Project
In the
City of Oakland
Alameda County
Project Figures
Figure 1: Courtland Creek Park Restoration Project Location

DEPARTMENT OF THE ARMY
SAN FRANCISCO DISTRICT, U.S. ARMY CORPS OF ENGINEERS
450 GOLDEN GATE AVENUE
SAN FRANCISCO, CALIFORNIA 94102
September 26, 2022
Regulatory Division
Subject: File Number 2021-00453S
Ms. Jennifer Stern
City of Oakland
250 Frank H Ogawa Plaza, Ste 4314
Oakland, California 94612
[email protected]
Dear Ms. Stern:

This correspondence is in reference to your submittal of May 13, 2022, concerning Department of the Army (DA) authorization from the City of Oakland for the Courtland Creek Restoration Project to rehabilitate three urban reaches of Courtland Creek. The project is located at 2518 Courtland Avenue, Oakland, California (Lat: 37.779306, Long: -122.20602).

Work within U.S. Army Corps of Engineers’ (Corps) jurisdiction will include the restoration of three reaches, approximately 950 linear feet, of Courtland Creek, through grading, slope stabilization, and native vegetation planting. The project will be completed in two phases. Phase one will remove approximately 30 eucalyptus trees, non-native, and invasive vegetation within and along the banks of the three reaches of Courtland Creek. Phase one will commence late winter 2022 to early winter 2023 to avoid impacts to nesting bird species. The second phase will involve construction within all three reaches and will include re-grading, construction of multiple small floodplain terraces, construction of a boulder rock cascade feature, installation of a crib wall, demolition and removal of an existing concrete apron, and revegetation of creek banks with native riparian and woodland species. Work will be performed during late summer when reach is dry. However, if flow is present during construction a bypass culvert will be installed to divert flow around in-channel work. All project equipment will be staged on the adjacent upland areas along the existing park trail, and access to work site will be limited to grading boundaries. Crews and equipment will enter and exit utilizing the existing trail. Project will take approximately 180 days to complete and will be performed during seasonal work windows from June 1 to October

31. Work is described as follows:

Brookdale Reach: The stream banks will be regraded to create shallower slopes. The creek bed will be raised to facilitate shallower slopes along the banks. Two floodplain terraces will be constructed to support native plant assemblages during revegetation.

Floodplain terraces will be located along the left bank of the reach. The terraces will be constrained by existing trail and retaining wall. Terrace elevation will be based on existing water surface elevations for a 2-year flow event. Natural and rock features will - 2 -
be placed within and along the channel. A boulder cascade with a 4-foot vertical drop and a 2.5: 1 ratio slope will be constructed within the channel to support the raised channel bed. The structure will be approximately 8-feet wide and 50-feet long. Approximately 309 cubic yards of fill consisting of engineered streambed (gravel and fines), rock (2-foot diameter boulders), and native soil will be placed within the Brookdale reach. Streambed material will be injected between boulders to fill voids and to fill portions of the channel upstream of the boulder cascade. A 6-inch lip will be added to the existing bifurcation structure to increase downstream flow. Bio-D Blocks consisting of coconut-fiber coir fabric and backfill material with willow pole cuttings will be installed along the channel toe and slope near the cascade structure and floodplain terraces.

Congress Reach: No structures will be constructed in this reach. However, existing concrete will be removed and a log crib wall with a vegetated face will be constructed from on-site eucalyptus trees. The log crib wall will be approximately 18-ft height (14- feet exposed) by 15-ft wide, with a total length of 40-feet. Additionally, an overlook feature and realigned trail will be constructed above the top of bank. The crib wall will be installed between the overlook feature and the stream channel along the bank.

Thompson Reach: Existing concrete apron will be demolished and removed, including a portion of concrete from the existing culvert mouth. Invasive and non-native vegetation will be removed, and native riparian, woodland, seasonal wetland, and upland species will be planted. No structures will be constructed in this reach.

Work will require the permanent placement of 309 cubic yards of fill within 0.23-acre of Courtland Creek. All work shall be completed in accordance with the plans and drawings titled “USACE File #2021-00453S, Courtland Creek Restoration Project, City of Oakland, Alameda County, September 19, 2022, Sheets 26,” provided as enclosure 1.

Section 404 of the Clean Water Act (CWA) generally regulates the discharge of dredged or fill material below the plane of ordinary high water in non-tidal waters of the United States, below the high tide line in tidal waters of the United States, and within the lateral extent of wetlands adjacent to these waters. Section 10 of the Rivers and Harbors Act (RHA) generally regulates construction of structures and work, including excavation, dredging, and discharges of dredged or fill material occurring below the plane of mean high water in tidal waters of the United States; in former diked baylands currently below mean high water; outside the limits of mean high water but affecting the navigable capacity of tidal waters; or below the plane of ordinary high water in non-tidal waters designated as navigable waters of the United States.

Navigable waters of the United States generally include all waters subject to the ebb and flow of the tide; and/or all waters presently used, or have been used in the past, or may be susceptible for future use to transport interstate or foreign commerce. - 3 -
Based on a review of the information in your submittal, the project qualifies for authorization under Department of the Army Nationwide Permit (NWP) 27 for Aquatic Habitat Restoration, Establishment, and Enhancement Activities (86 Fed. Reg. 73522, December 27, 2021), pursuant to Section 404 of the CWA of 1972, as amended (33 U.S.C. § 1344 et seq.). The project must be in compliance with the terms of the NWP, the general conditions of the Nationwide Permit Program, and the San Francisco District regional conditions cited on our website (www.spn.usace.army.mil/Missions/Regulatory/Permitting/Nationwide/). You must also be in compliance with any special conditions specified in this letter for the NWP authorization to remain valid. Non-compliance with any term or condition could result in the revocation of the NWP authorization for your project, thereby requiring you to obtain an Individual Permit from the Corps. This NWP authorization does not obviate the need to obtain other State or local approvals required by law.

This verification will remain valid until March 14, 2026, unless the NWP authorization is modified, suspended, or revoked. Activities which have commenced (i.e., are under construction) or are under contract to commence in reliance upon a NWP will remain authorized provided the activity is completed within 12 months of the date of a NWP’s expiration, modification, or revocation, unless discretionary authority has been exercised on a case-by-case basis to modify, suspend, or revoke the authorization in accordance with 33 C.F.R. § 330.4(e) and 33 C.F.R. § 330.5(c) or (d). This verification will remain valid if, during the time period between now and March 14, 2026, the activity complies with any subsequent modification of the NWP authorization. The Chief of Engineers will periodically review NWPs and their conditions and will decide to modify, reissue, or revoke the permits. If a NWP is not modified or reissued within five years of its effective date, it automatically expires and becomes null and void. It is incumbent upon you to remain informed of any changes to the NWPs. Changes to the NWPs would be announced by Public Notice posted on our website (www.spn.usace.army.mil/Missions/Regulatory/Public-Notices.aspx). Upon completion of the project and all associated mitigation requirements, you shall sign and return the Certification of Compliance, enclosure 2, verifying that you have complied with the terms and conditions of the permit.

You shall comply with all terms and conditions set forth by the “Clean Water Act Section 401 Water Quality Certification and Order for the Courtland Creek Restoration Project Alameda County,” issued by the San Francisco Bay Regional Water Quality Control Board on August 31, 2022 (enclosure 3). You shall consider such conditions to be an integral part of the NWP authorization for your project.
- 4 -
In order to ensure compliance with this NWP authorization, the following special conditions shall be implemented:

1. Should any buried archaeological materials be uncovered during project activities; such activities shall cease within 100 feet of the find. Prehistoric archaeological indicators include obsidian and chert flakes, and chipped stone tools; bedrock outcrops and boulders with mortar cups; ground stone implements (grinding slabs, mortars, and pestles) and locally darkened midden soils containing some of the previously listed items plus fragments of bone and fire affected stones. Historic period site indicators generally include fragments of glass, ceramic, and metal objects; milled and split lumber; and structure and feature remains such as building foundations, privy pits, wells and dumps, and old trails. The Corps shall be notified of the discovery and a professional archaeologist shall be retained by the permittee to evaluate the find and recommend appropriate mitigation measures. Proposed mitigation measures shall be submitted to the Corps for approval, and project-related activities shall not resume within 100 feet of the find until all approved mitigation measures have been completed to the satisfaction of the Corps.

2. You shall notify the Corps in writing of the anticipated start and stop dates of construction, at least 5 days prior to the initiation of construction.

3. Any change in the project design, materials, or construction methods, must be approved by the Corps in writing.

4. All appropriate best management practices shall be implemented throughout the project site to help minimize sediment disturbance and suspension within the water.

5. On-site mitigation will be achieved through re-vegetation and monitoring of the project area as outlined in the “Courtland Creek Restoration Project, Quality Assurance Project Plan”, dated December 2021 (Enclosure 4), and “Courtland Creek Restoration Project 65% Design, Sheet No. L-4-L-4.3” dated April 4, 2022. A 5-year management and monitoring program will be implemented as outlined in the abovementioned plan. Annual monitoring reports shall be submitted to the Corps by January 31, of each year.

You may refer any questions on this matter to Michael Orellana of my Regulatory staff by telephone at (415) 503-6769 or by e-mail at [email protected]. All correspondence should be addressed to the Regulatory Division, South Branch, referencing the file number at the head of this letter.
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The San Francisco District is committed to improving service to our customers. My Regulatory staff seeks to achieve the goals of the Regulatory Program in an efficient and cooperative manner while preserving and protecting our nation’s aquatic resources. If you would like to provide comments on our Regulatory Program, please complete the Customer Service Survey Form available on our website: http://www.spn.usace.army.mil/Missions/ Regulatory.aspx
Sincerely,
Katerina Galacatos, Ph.D.

South Branch Chief, Regulatory Division
Enclosures
Electronic Copies Furnished (w/ encls):

FlowWest, Oakland, CA (Attn: Ari Frink, [email protected]) Electronic Copy Furnished (w/ encl 1 only):

CA RWQCB, Oakland, CA (Attn: Brian Wines, [email protected])

CITY OF OAKLAND
DALZIEL BUILDING 250 FRANK H. OGAWA PLAZA SUITE 3315 OAKLAND, CALIFORNIA 94612 Planning and Building Department (510) 238-3941
Bureau of Planning FAX (510) 238-6538
TDD (510) 238-3254
December 29, 2022
Jennifer Stern
City of Oakland, Oakland Public Works
250 Frank H. Ogawa Plaza, Suite 4314
Oakland, CA 94612
RE: Case File No. CP22046; Courtland Avenue, 4343 Brookdale Avenue, 4516 Fairfax Avenue, 4522 Fairfax Avenue, Gordon Street, 4321 Gordon Street, High Street, 2532 High Street, Oakland, CA 94601; APNs: 032 204400601, 032 204300602, 032 204300702, 032 204400200, 032 204400301, 032 204400400, 032 204400701, 032 204400801, 032 204400901, 032 204400903, 032 204401001, 032 204401200, 032 204401300, 032 204600605, 032 204601102, 032 204603601, 032 204701701, 032 204701801, & 032 204701901

Dear Ms. Stern:

Your application, as described below, has been APPROVED for the reasons stated in Attachment A, which contains the findings required to support this decision. Attachment B contains the Conditions of Approval for the project. This decision is effective ten (10) days after the date of this letter unless appealed as explained below.

The following table summarizes the proposed project:

Proposal: To protect and restore approximately 950 feet of Courtland Creek through slope stabilization, grading, and native plant restoration.

Planning Permits Required: Creek Protection Permit Category IV, Section 13.16 of the City of Oakland Creek Protection Ordinance, related to construction within 20 feet of an existing creek
General Plan: Mixed Housing Type Residential
Zoning: Open Space (Linear Park) (OS/LP), Mixed Housing Type Residential – 3 (RM-3), & Mixed Housing Type Residential – 4 (RM-4) Zones Environmental Determination: 15333-Small Habitat Restoration Projects; and 15183-Projects Consistent with a Community Plan, General Plan, or Zoning Historic Status: Non-Historic Properties
City Council District: 4 and 5
If you, or any interested party, seeks to challenge this decision, an appeal must be filed by no later than ten (10) calendar days from the date of this letter, by 4:00 p.m. on January 9, 2023. An appeal shall be on a form provided by the Bureau of Planning of the Planning and Building Department, and submitted via email to: (1) Gregory Qwan, Planner III, at [email protected], (2) Robert Merkamp, Zoning Manager, at [email protected], and (3) Catherine Payne, Development Planning Manager, at [email protected]. The appeal form is available online at https://www.oaklandca.gov/documents/appeal-application-form. The appeal shall state specifically wherein it is claimed CP22046 Page 2
there was error or abuse of discretion by the Zoning Manager or decision-making body or wherein the decision is not supported by substantial evidence. Applicable appeal fees in the amount of $2,476.31 in accordance with the City of Oakland Master Fee Schedule must be paid within five (5) calendar days (January 16, 2023) of filing the appeal.

If the fifth (5th) calendar day falls on a weekend or City holiday, appellant will have until the end of the following City business day to pay the appeal fee. Failure to timely appeal (or to timely pay all appeal fees) will preclude you, or any interested party, from challenging the City’s decision in court. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record which supports the basis of the appeal; failure to do so may preclude you, or any interested party, from raising such issues during the appeal and/or in court. However, the appeal will be limited to issues and/or evidence presented to the Zoning Manager prior to the close of the previously noticed public comment period on the matter. For further information, see the attached Interim City Administrator Emergency Order No. 3 and Interim Procedures for Appeals of City Planning Bureau Decisions for Development Projects.

If the ten (10) day appeal period expires without an appeal, you are expected to contact Gregory Qwan, Planner III, in order to receive the signed Notice of Exemption (NOE) certifying that the project has been found to be exempt from CEQA review. It is your responsibility to record the NOE and the Environmental Declaration at the Alameda County Clerk’s office at 1106 Madison Street, Oakland, CA 94612, at a cost of $50.00 made payable to the Alameda County Clerk. Please bring the original NOE related documents and five copies to the Alameda County Clerk, and return one date stamped copy to the Bureau of Planning, to the attention of Gregory Qwan, Planner III. Pursuant to Section 15062(d) of the California Environmental Quality Act (CEQA) Guidelines, recordation of the NOE starts a 35-day statute of limitations on court challenges to the approval under CEQA. The NOE will also be posted on the City website at https://aca.accela.com/OAKLAND/Welcome.aspx.

If you have any questions, please contact the case planner, Gregory Qwan, Planner III at (510) 238-2958 or [email protected], however, this does not substitute for filing of an appeal as described above.

Very Truly Yours,
ROBERT D. MERKAMP
Zoning Manager

Attachments:

A. Findings
B. Conditions of Approval, including Standard Conditions of Approvals C. Interim City Administrator Emergency Order No. 3
CP22046 Page 3
ATTACHMENT A: FINDINGS
This proposal meets all the required findings under Chapter 13.16 of the Oakland Municipal Code as set forth below and which are required to approve your application. Required findings are shown in bold type; reasons your proposal satisfies them are shown in normal type.

SECTION 13.16.200 CREEK PROTECTION PERMIT CRITERIA:

A. Will the proposed activity (during construction and after project is complete) (directly or indirectly) cause a substantial adverse impact on the creek?
Yes/No
The Project will not cause a substantial adverse impact on the creek for several reasons:

1. The proposed creek bank stabilization, native plant restoration, and removal of trash will enhance the riparian corridor and water quality of the creek;

2. Standard Conditions of Approval require protective measures during the construction and post-construction installed and implemented to prevent the discharge of pollutants into the creek, prevent sedimentation into the creek, and prevent erosion of the creek bank; and

3. As conditioned, an approved Creek Protection Plan shall be implemented to minimize impacts during construction that involve erosion and sediment control measures.

In making the above finding, the Director of Building Services must, at a minimum, consider the following factors:

1. Will the proposed activity discharge a substantial amount of pollutants into the creek? Yes/No
As conditioned, protective measures and Best Management Practices to be implemented prior to, during, and postconstruction will prevent the discharge of a substantial amount of pollutants into the creek.

2. Will the proposed activity result in substantial modifications to the natural flow of water in the creek? Yes/No
The project is designed to improve the natural flow of water along the drainage flow path of the creek. Trash will be removed from the creek and slope stabilization measures will be installed. The hydrology report and modeling analysis does not reflect any substantial adverse alteration in the capacity of the creek.

3. Will the proposed activity deposit a substantial amount of new material into the creek or cause substantial bank erosion or instability?
Yes/No
The project is designed to protect against creek bank erosion and instability with the installation of bio-d blocks and slope stabilization fabric. Existing trash will be removed from the creek.

CP22046 Page 4

4. Will the proposed activity result in substantial alteration of the capacity of the creek? Yes/No
The Hydrology Report and modeling analysis does not reflect any substantial adverse alteration in the capacity of the creek.

5. Are there any other factors which would indicate that the proposed activity will adversely affect the creek? Yes/No
The project’s proposed stabilization of eroding creek banks, removal of trash, and restoration of native plants will preserve the health of the stream channel and riparian corridor. The project will benefit from both the short-term and long-term installation of creek protection and erosion control measures, including slope stabilization fabrics, bio-d blocks, and planting.

B. Will the proposed activity substantially adversely affect the riparian corridor, including riparian vegetation, animal wildlife or result in loss of wildlife habitat?
Yes/No
The proposed slope stabilization, native plant restoration, and removal of trash will enhance both riparian vegetation health and water quality.

C. Will the proposed activity substantially degrade the visual quality and natural appearance of the riparian corridor?
Yes/No
As conditioned, the project protects the existing creek and includes measures to reduce creek bank erosion. Native plant restoration and removal of trash that has accumulated in the creek will preserve the natural appearance of the riparian corridor.

D. Is the proposed activity inconsistent with the intent and purposes of OMC Chapter 13.16? Yes/No
The scope of the proposed work for creek protection complies in all significant elements of the Creek Protection Ordinance (OMC Chapter 13.16). Additionally, all elements of the proposal conform with the Oakland General Plan and its policies regarding creek restoration and protection elements in the Open Space, Conservation, and Recreation (OSCAR) General Plan Element, e.g. Objective CO-6 Surface Waters - Ecology Protection, Benefits Promotion, and Policy CO-6.1, Creek Management.

E. Will the proposed activity substantially endanger public or private property? Yes/No
Due to creek protection measures, including cofferdams used during construction, the proposed activity will not result in substantial danger to public or private property.

CP22046 Page 5
F. Will the proposed activity (directly or indirectly) substantially threaten the public's health or safety? Yes/No
The project provides both a private and public benefit by protecting properties downstream and safeguards the water quality of the creek. Additionally, protective measures will be in place during construction activity where the work staging areas are clearly identified.

CP22046 Page 6
ATTACHMENT B: CONDITIONS OF APPROVAL
The proposal is hereby approved subject to the following Conditions of Approval:

1. Approved Use
The project shall be constructed and operated in accordance with the authorized use as described in the approved application materials, and the approved plans received November 18, 2022, as amended by the following conditions of approval and mitigation measures, if applicable (“Conditions of Approval” or “Conditions”).

2. Effective Date, Expiration, Extensions and Extinguishment This Approval shall become effective immediately, unless the Approval is appealable, in which case the Approval shall become effective in ten (10) calendar days unless an appeal is filed. Unless a different termination date is prescribed, this Approval shall expire two calendar years from the Approval date, or from the date of the final decision in the event of an appeal, unless within such period a complete building permit application has been filed with the Bureau of Building and diligently pursued towards completion, or the authorized activities have commenced in the case of a permit not involving construction or alteration. Upon written request and payment of appropriate fees submitted no later than the expiration date of this Approval, the Director of City Planning or designee may grant a one-year extension of this date, with additional extensions subject to approval by the approving body. Expiration of any necessary building permit or other construction-related permit for this project may invalidate this Approval if said Approval has also expired. If litigation is filed challenging this Approval, or its implementation, then the time period stated above for obtaining necessary permits for construction or alteration and/or commencement of authorized activities is automatically extended for the duration of the litigation.

3. Compliance with Other Requirements
The project applicant shall comply with all other applicable federal, state, regional, and local laws/codes, requirements, regulations, and guidelines, including but not limited to those imposed by the City’s Bureau of Building, Fire Marshal, Department of Transportation, and Public Works Department. Compliance with other applicable requirements may require changes to the approved use and/or plans. These changes shall be processed in accordance with the procedures contained in Condition #4.

4. Minor and Major Changes
a. Minor changes to the approved project, plans, Conditions, facilities, or use may be approved administratively by the Director of City Planning.
b. Major changes to the approved project, plans, Conditions, facilities, or use shall be reviewed by the Director of City Planning to determine whether such changes require submittal and approval of a revision to the Approval by the original approving body or a new independent permit/approval. Major revisions shall be reviewed in accordance with the procedures required for the original permit/approval. A new independent permit/approval shall be reviewed in accordance with the procedures required for the new permit/approval.

5. Compliance with Conditions of Approval
The project applicant and property owner, including successors, (collectively referred to hereafter as the “project applicant” or “applicant”) shall be responsible for compliance with all the Conditions of Approval and any recommendations contained in any submitted and approved technical report at his/her sole cost and expense, subject to review and approval by the City of Oakland.

The City of Oakland reserves the right at any time during construction to require certification by a licensed professional at the project applicant’s expense that the as-built project conforms to all applicable requirements, including but not limited to, approved maximum heights and minimum setbacks. Failure to construct the project in accordance with the Approval may result in remedial reconstruction, permit revocation, permit modification, stop work, permit suspension, or other corrective action.

CP22046 Page 7
Violation of any term, Condition, or project description relating to the Approval is unlawful, prohibited, and a violation of the Oakland Municipal Code. The City of Oakland reserves the right to initiate civil and/or criminal enforcement and/or abatement proceedings, or after notice and public hearing, to revoke the Approval or alter these Conditions if it is found that there is violation of any of the Conditions or the provisions of the Planning Code or Municipal Code, or the project operates as or causes a public nuisance. This provision is not intended to, nor does it, limit in any manner whatsoever the ability of the City to take appropriate enforcement actions. The project applicant shall be responsible for paying fees in accordance with the City’s Master Fee Schedule for inspections conducted by the City or a City-designated third-party to investigate alleged violations of the Approval or Conditions.

6. Signed Copy of the Approval/Conditions
A copy of the Approval letter and Conditions shall be signed by the project applicant, attached to each set of permit plans submitted to the appropriate City agency for the project, and made available for review at the project job site at all times.

7. Blight/Nuisances
The project site shall be kept in a blight/nuisance-free condition. Any existing blight or nuisance shall be abated within sixty (60) days of approval, unless an earlier date is specified elsewhere.

8. Indemnification
a. To the maximum extent permitted by law, the project applicant shall defend (with counsel acceptable to the City), indemnify, and hold harmless the City of Oakland, the Oakland City Council, the Oakland Redevelopment Successor Agency, the Oakland City Planning Commission, and their respective agents, officers, employees, and volunteers (hereafter collectively called “City”) from any liability, damages, claim, judgment, loss (direct or indirect), action, causes of action, or proceeding (including legal costs, attorneys’ fees, expert witness or consultant fees, City Attorney or staff time, expenses or costs) (collectively called “Action”) against the City to attack, set aside, void or annul this Approval or implementation of this Approval. The City may elect, in its sole discretion, to participate in the defense of said Action and the project applicant shall reimburse the City for its reasonable legal costs and attorneys’ fees.
b. Within ten (10) calendar days of the filing of any Action as specified in subsection (a) above, the project applicant shall execute a Joint Defense Letter of Agreement with the City, acceptable to the Office of the City Attorney, which memorializes the above obligations. These obligations and the Joint Defense Letter of Agreement shall survive termination, extinguishment, or invalidation of the Approval. Failure to timely execute the Letter of Agreement does not relieve the project applicant of any of the obligations contained in this Condition or other requirements or Conditions of Approval that may be imposed by the City.

9. Severability
The Approval would not have been granted but for the applicability and validity of each and every one of the specified Conditions, and if one or more of such Conditions is found to be invalid by a court of competent jurisdiction this Approval would not have been granted without requiring other valid Conditions consistent with achieving the same purpose and intent of such Approval.

10. Special Inspector/Inspections, Independent Technical Review, Project Coordination and Monitoring The project applicant may be required to cover the full costs of independent third-party technical review and City monitoring and inspection, including without limitation, special inspector(s)/inspection(s) during times of extensive or specialized plan-check review or construction, and inspections of potential violations of the Conditions of Approval.

The project applicant shall establish a deposit with Engineering Services and/or the Bureau of Building, if directed by the Director of Public Works, Building Official, Director of City Planning, Director of Transportation, or designee, prior to the issuance of a construction-related permit and on an ongoing as-needed basis.

CP22046 Page 8

11. Public Improvements
The project applicant shall obtain all necessary permits/approvals, such as encroachment permits, obstruction permits, curb/gutter/sidewalk permits, and public improvement (“p-job”) permits from the City for work in the public right-ofway, including but not limited to, streets, curbs, gutters, sidewalks, utilities, and fire hydrants. Prior to any work in the public right-of-way, the applicant shall submit plans for review and approval by the Bureau of Planning, the Bureau of Building, Engineering Services, Department of Transportation, and other City departments as required. Public improvements shall be designed and installed to the satisfaction of the City.

12. Regulatory Permits and Authorizations from Other Agencies Requirement: The project applicant shall obtain all necessary regulatory permits and authorizations from applicable resource/regulatory agencies including, but not limited to, the Regional Water Quality Control Board, Bay Area Air Quality Management District, Bay Conservation and Development Commission, California Department of Fish and Wildlife, U. S. Fish and Wildlife Service, and Army Corps of Engineers and shall comply with all requirements and conditions of the permits/authorizations. The project applicant shall submit evidence of the approved permits/authorizations to the City, along with evidence demonstrating compliance with any regulatory permit/authorization conditions of approval.

When Required: Prior to activity requiring permit/authorization from regulatory agency Initial Approval: Approval by applicable regulatory agency with jurisdiction; evidence of approval submitted to Bureau of Planning
Monitoring/Inspection: Applicable regulatory agency with jurisdiction

13. Trash and Blight Removal
Requirement: The project applicant and his/her successors shall maintain the property free of blight, as defined in chapter 8.24 of the Oakland Municipal Code. For nonresidential and multi-family residential projects, the project applicant shall install and maintain trash receptacles near public entryways as needed to provide sufficient capacity for building users.

When Required: Ongoing
Initial Approval: N/A
Monitoring/Inspection: Bureau of Building

14. Graffiti Control
Requirement:
a. During construction and operation of the project, the project applicant shall incorporate best management practices reasonably related to the control of graffiti and/or the mitigation of the impacts of graffiti. Such best management practices may include, without limitation:
i. Installation and maintenance of landscaping to discourage defacement of and/or protect likely graffitiattracting surfaces. ii. Installation and maintenance of lighting to protect likely graffiti-attracting surfaces. iii. Use of paint with anti-graffiti coating.
iv. Incorporation of architectural or design elements or features to discourage graffiti defacement in accordance with the principles of Crime Prevention Through Environmental Design (CPTED). v. Other practices approved by the City to deter, protect, or reduce the potential for graffiti defacement.
b. The project applicant shall remove graffiti by appropriate means within seventy-two (72) hours. Appropriate means include the following:
i. Removal through scrubbing, washing, sanding, and/or scraping (or similar method) without damaging the surface and without discharging wash water or cleaning detergents into the City storm drain system. ii. Covering with new paint to match the color of the surrounding surface. iii. Replacing with new surfacing (with City permits if required).

CP22046 Page 9
When Required: Ongoing
Initial Approval: N/A
Monitoring/Inspection: Bureau of Building

15. Dust Controls – Construction Related
Requirement: The project applicant shall implement all of the following applicable dust control measures during construction of the project:
a. Water all exposed surfaces of active construction areas at least twice daily. Watering should be sufficient to prevent airborne dust from leaving the site. Increased watering frequency may be necessary whenever wind speeds exceed 15 miles per hour. Reclaimed water should be used whenever feasible. b. Cover all trucks hauling soil, sand, and other loose materials or require all trucks to maintain at least two feet of freeboard (i.e., the minimum required space between the top of the load and the top of the trailer). c. All visible mud or dirt track-out onto adjacent public roads shall be removed using wet power vacuum street sweepers at least once per day. The use of dry power sweeping is prohibited. d. Limit vehicle speeds on unpaved roads to 15 miles per hour. e. All demolition activities (if any) shall be suspended when average wind speeds exceed 20 mph. f. All trucks and equipment, including tires, shall be washed off prior to leaving the site. g. Site accesses to a distance of 100 feet from the paved road shall be treated with a 6 to 12 inch compacted layer of wood chips, mulch, or gravel.

When Required: During construction
Initial Approval: N/A
Monitoring/Inspection: Bureau of Building

16. Criteria Air Pollutant Controls - Construction Related Requirement: The project applicant shall implement all of the following applicable basic control measures for criteria air pollutants during construction of the project as applicable:
a. Idling times on all diesel-fueled commercial vehicles over 10,000 lbs. shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to two minutes (as required by the California airborne toxics control measure Title 13, Section 2485, of the California Code of Regulations).

Clear signage to this effect shall be provided for construction workers at all access points. b. Idling times on all diesel-fueled off-road vehicles over 25 horsepower shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to two minutes and fleet operators must develop a written policy as required by Title 23, Section 2449, of the California Code of Regulations (“California Air Resources Board Off-Road Diesel Regulations”). c. All construction equipment shall be maintained and properly tuned in accordance with the manufacturer’s specifications. All equipment shall be checked by a certified mechanic and determined to be running in proper condition prior to operation. Equipment check documentation should be kept at the construction site and be available for review by the City and the Bay Area Air Quality District as needed. d. Portable equipment shall be powered by grid electricity if available. If electricity is not available, propane or natural gas generators shall be used if feasible. Diesel engines shall only be used if grid electricity is not available and propane or natural gas generators cannot meet the electrical demand. e. Low VOC (i.e., ROG) coatings shall be used that comply with BAAQMD Regulation 8, Rule 3: Architectural Coatings.
f. All equipment to be used on the construction site shall comply with the requirements of Title 13, Section 2449, of the California Code of Regulations (“California Air Resources Board Off-Road Diesel Regulations”) and upon request by the City (and the Air District if specifically requested), the project applicant shall provide written documentation that fleet requirements have been met.

When Required: During construction
CP22046 Page 10
Initial Approval: N/A
Monitoring/Inspection: Bureau of Building

17. Asbestos in Structures
Requirement: The project applicant shall comply with all applicable laws and regulations regarding demolition and renovation of Asbestos Containing Materials (ACM), including but not limited to California Code of Regulations, Title 8; California Business and Professions Code, Division 3; California Health and Safety Code sections 25915- 25919.7; and Bay Area Air Quality Management District, Regulation 11, Rule 2, as may be amended. Evidence of compliance shall be submitted to the City upon request.

When Required: Prior to approval of construction-related permit Initial Approval: Applicable regulatory agency with jurisdiction Monitoring/Inspection: Applicable regulatory agency with jurisdiction

18. Tree Removal During Bird Breeding Season
Requirement: To the extent feasible, removal of any tree and/or other vegetation suitable for nesting of birds shall not occur during the bird breeding season of February 1 to August 15 (or during December 15 to August 15 for trees located in or near marsh, wetland, or aquatic habitats). If tree removal must occur during the bird breeding season, all trees to be removed shall be surveyed by a qualified biologist to verify the presence or absence of nesting raptors or other birds. Pre-removal surveys shall be conducted within 15 days prior to the start of work and shall be submitted to the City for review and approval. If the survey indicates the potential presence of nesting raptors or other birds, the biologist shall determine an appropriately sized buffer around the nest in which no work will be allowed until the young have successfully fledged. The size of the nest buffer will be determined by the biologist in consultation with the California Department of Fish and Wildlife, and will be based to a large extent on the nesting species and its sensitivity to disturbance. In general, buffer sizes of 200 feet for raptors and 50 feet for other birds should suffice to prevent disturbance to birds nesting in the urban environment, but these buffers may be increased or decreased, as appropriate, depending on the bird species and the level of disturbance anticipated near the nest.

When Required: Prior to removal of trees
Initial Approval: Bureau of Planning
Monitoring/Inspection: Bureau of Building

19. Tree Permit
a. Tree Permit Required
Requirement: Pursuant to the City’s Tree Protection Ordinance (OMC chapter 12.36), the project applicant shall obtain a tree permit and abide by the conditions of that permit.

When Required: Prior to approval of construction-related permit Initial Approval: Permit approval by Public Works Department, Tree Division; evidence of approval submitted to Bureau of Building
Monitoring/Inspection: Bureau of Building
b. Tree Protection During Construction
Requirement: Adequate protection shall be provided during the construction period for any trees which are to remain standing, including the following, plus any recommendations of an arborist:
i. Before the start of any clearing, excavation, construction, or other work on the site, every protected tree deemed to be potentially endangered by said site work shall be securely fenced off at a distance from the base of the tree to be determined by the project’s consulting arborist. Such fences shall remain in place for duration of all such work. All trees to be removed shall be clearly marked. A scheme shall be established for the removal and disposal of logs, brush, earth and other debris which will avoid injury to any protected tree. ii. Where proposed development or other site work is to encroach upon the protected perimeter of any protected tree, special measures shall be incorporated to allow the roots to breathe and obtain CP22046 Page 11
water and nutrients. Any excavation, cutting, filling, or compaction of the existing ground surface within the protected perimeter shall be minimized. No change in existing ground level shall occur within a distance to be determined by the project’s consulting arborist from the base of any protected tree at any time. No burning or use of equipment with an open flame shall occur near or within the protected perimeter of any protected tree. iii. No storage or dumping of oil, gas, chemicals, or other substances that may be harmful to trees shall occur within the distance to be determined by the project’s consulting arborist from the base of any protected trees, or any other location on the site from which such substances might enter the protected perimeter. No heavy construction equipment or construction materials shall be operated or stored within a distance from the base of any protected trees to be determined by the project’s consulting arborist. Wires, ropes, or other devices shall not be attached to any protected tree, except as needed for support of the tree. No sign, other than a tag showing the botanical classification, shall be attached to any protected tree. iv. Periodically during construction, the leaves of protected trees shall be thoroughly sprayed with water to prevent buildup of dust and other pollution that would inhibit leaf transpiration. v. If any damage to a protected tree should occur during or as a result of work on the site, the project applicant shall immediately notify the Public Works Department and the project’s consulting arborist shall make a recommendation to the City Tree Reviewer as to whether the damaged tree can be preserved. If, in the professional opinion of the Tree Reviewer, such tree cannot be preserved in a healthy state, the Tree Reviewer shall require replacement of any tree removed with another tree or trees on the same site deemed adequate by the Tree Reviewer to compensate for the loss of the tree that is removed.
vi. All debris created as a result of any tree removal work shall be removed by the project applicant from the property within two weeks of debris creation, and such debris shall be properly disposed of by the project applicant in accordance with all applicable laws, ordinances, and regulations.

When Required: During construction
Initial Approval: Public Works Department, Tree Division Monitoring/Inspection: Bureau of Building
c. Tree Replacement Plantings
Requirement: Replacement plantings shall be required for tree removals for the purposes of erosion control, groundwater replenishment, visual screening, wildlife habitat, and preventing excessive loss of shade, in accordance with the following criteria:
i. No tree replacement shall be required for the removal of nonnative species, for the removal of trees which is required for the benefit of remaining trees, or where insufficient planting area exists for a mature tree of the species being considered.
ii. Replacement tree species shall consist of Sequoia sempervirens (Coast Redwood), Quercus agrifolia (Coast Live Oak), Arbutus menziesii (Madrone), Aesculus californica (California Buckeye), Umbellularia californica (California Bay Laurel), or other tree species acceptable to the Tree Division.
iii. Replacement trees shall be at least twenty-four (24) inch box size, unless a smaller size is recommended by the arborist, except that three fifteen (15) gallon size trees may be substituted for each twenty-four (24) inch box size tree where appropriate. iv. Minimum planting areas must be available on site as follows:
a. For Sequoia sempervirens, three hundred fifteen (315) square feet per tree; b. For other species listed, seven hundred (700) square feet per tree. v. In the event that replacement trees are required but cannot be planted due to site constraints, an in lieu fee in accordance with the City’s Master Fee Schedule may be substituted for required replacement plantings, with all such revenues applied toward tree planting in city parks, streets and medians.

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vi. The project applicant shall install the plantings and maintain the plantings until established. The Tree Reviewer of the Tree Division of the Public Works Department may require a landscape plan showing the replacement plantings and the method of irrigation. Any replacement plantings which fail to become established within one year of planting shall be replanted at the project applicant’s expense.

When Required: Prior to building permit final
Initial Approval: Public Works Department, Tree Division Monitoring/Inspection: Bureau of Building

20. Archaeological and Paleontological Resources – Discovery During Construction Requirement: Pursuant to CEQA Guidelines section 15064.5(f), in the event that any historic or prehistoric subsurface cultural resources are discovered during ground disturbing activities, all work within 50 feet of the resources shall be halted and the project applicant shall notify the City and consult with a qualified archaeologist or paleontologist, as applicable, to assess the significance of the find. In the case of discovery of paleontological resources, the assessment shall be done in accordance with the Society of Vertebrate Paleontology standards. If any find is determined to be significant, appropriate avoidance measures recommended by the consultant and approved by the City must be followed unless avoidance is determined unnecessary or infeasible by the City. Feasibility of avoidance shall be determined with consideration of factors such as the nature of the find, project design, costs, and other considerations.

If avoidance is unnecessary or infeasible, other appropriate measures (e.g., data recovery, excavation) shall be instituted. Work may proceed on other parts of the project site while measures for the cultural resources are implemented.

In the event of data recovery of archaeological resources, the project applicant shall submit an Archaeological Research Design and Treatment Plan (ARDTP) prepared by a qualified archaeologist for review and approval by the City. The ARDTP is required to identify how the proposed data recovery program would preserve the significant information the archaeological resource is expected to contain. The ARDTP shall identify the scientific/historic research questions applicable to the expected resource, the data classes the resource is expected to possess, and how the expected data classes would address the applicable research questions. The ARDTP shall include the analysis and specify the curation and storage methods. Data recovery, in general, shall be limited to the portions of the archaeological resource that could be impacted by the proposed project. Destructive data recovery methods shall not be applied to portions of the archaeological resources if nondestructive methods are practicable. Because the intent of the ARDTP is to save as much of the archaeological resource as possible, including moving the resource, if feasible, preparation and implementation of the ARDTP would reduce the potential adverse impact to less than significant. The project applicant shall implement the ARDTP at his/her expense.

In the event of excavation of paleontological resources, the project applicant shall submit an excavation plan prepared by a qualified paleontologist to the City for review and approval. All significant cultural materials recovered shall be subject to scientific analysis, professional museum curation, and/or a report prepared by a qualified paleontologist, as appropriate, according to current professional standards and at the expense of the project applicant.

When Required: During construction
Initial Approval: N/A
Monitoring/Inspection: Bureau of Building

21. Human Remains – Discovery During Construction
Requirement: Pursuant to CEQA Guidelines section 15064.5(e)(1), in the event that human skeletal remains are uncovered at the project site during construction activities, all work shall immediately halt and the project applicant shall notify the City and the Alameda County Coroner. If the County Coroner determines that an investigation of the cause of death is required or that the remains are Native American, all work shall cease within 50 feet of the remains until appropriate arrangements are made. In the event that the remains are Native American, the City shall contact the California Native American Heritage Commission (NAHC), pursuant to subdivision (c) of section 7050.5 of the California Health and Safety Code. If the agencies determine that avoidance is not feasible, then an alternative plan shall be prepared with specific steps and timeframe required to resume construction activities. Monitoring, data CP22046 Page 13
recovery, determination of significance, and avoidance measures (if applicable) shall be completed expeditiously and at the expense of the project applicant.

When Required: During construction
Initial Approval: N/A
Monitoring/Inspection: Bureau of Building

22. Construction-Related Permit(s)
Requirement: The project applicant shall obtain all required construction-related permits/approvals from the City. The project shall comply with all standards, requirements and conditions contained in construction-related codes, including but not limited to the Oakland Building Code and the Oakland Grading Regulations, to ensure structural integrity and safe construction.

When Required: Prior to approval of construction-related permit Initial Approval: Bureau of Building
Monitoring/Inspection: Bureau of Building

23. Soils Report
Requirement: The project applicant shall submit a soils report prepared by a registered geotechnical engineer for City review and approval. The soils report shall contain, at a minimum, field test results and observations regarding the nature, distribution and strength of existing soils, and recommendations for appropriate grading practices and project design. The project applicant shall implement the recommendations contained in the approved report during project design and construction.

When Required: Prior to approval of construction-related permit Initial Approval: Bureau of Building
Monitoring/Inspection: Bureau of Building

24. Seismic Hazards Zone (Landslide/Liquefaction)
Requirement: The project applicant shall submit a site-specific geotechnical report, consistent with California Geological Survey Special Publication 117 (as amended), prepared by a registered geotechnical engineer for City review and approval containing at a minimum a description of the geological and geotechnical conditions at the site, an evaluation of site-specific seismic hazards based on geological and geotechnical conditions, and recommended measures to reduce potential impacts related to liquefaction and/or slope stability hazards. The project applicant shall implement the recommendations contained in the approved report during project design and construction.

When Required: Prior to approval of construction-related permit Initial Approval: Bureau of Building
Monitoring/Inspection: Bureau of Building

25. Hazardous Materials Related to Construction
Requirement: The project applicant shall ensure that Best Management Practices (BMPs) are implemented by the contractor during construction to minimize potential negative effects on groundwater, soils, and human health. These shall include, at a minimum, the following:
a. Follow manufacture’s recommendations for use, storage, and disposal of chemical products used in construction; b. Avoid overtopping construction equipment fuel gas tanks; c. During routine maintenance of construction equipment, properly contain and remove grease and oils; d. Properly dispose of discarded containers of fuels and other chemicals; e. Implement lead-safe work practices and comply with all local, regional, state, and federal requirements concerning lead (for more information refer to the Alameda County Lead Poisoning Prevention Program); and CP22046 Page 14
f. If soil, groundwater, or other environmental medium with suspected contamination is encountered unexpectedly during construction activities (e.g., identified by odor or visual staining, or if any underground storage tanks, abandoned drums or other hazardous materials or wastes are encountered), the project applicant shall cease work in the vicinity of the suspect material, the area shall be secured as necessary, and the applicant shall take all appropriate measures to protect human health and the environment. Appropriate measures shall include notifying the City and applicable regulatory agency(ies) and implementation of the actions described in the City’s Standard Conditions of Approval, as necessary, to identify the nature and extent of contamination. Work shall not resume in the area(s) affected until the measures have been implemented under the oversight of the City or regulatory agency, as appropriate.

When Required: During construction
Initial Approval: N/A
Monitoring/Inspection: Bureau of Building

26. State Construction General Permit
Requirement: The project applicant shall comply with the requirements of the Construction General Permit issued by the State Water Resources Control Board (SWRCB). The project applicant shall submit a Notice of Intent (NOI), Stormwater Pollution Prevention Plan (SWPPP), and other required Permit Registration Documents to SWRCB. The project applicant shall submit evidence of compliance with Permit requirements to the City.

When Required: Prior to approval of construction-related permit Initial Approval: State Water Resources Control Board; evidence of compliance submitted to Bureau of Building Monitoring/Inspection: State Water Resources Control Board

27. Drainage Plan for Post-Construction Stormwater Runoff on Hillside Properties Requirement: The project applicant shall submit and implement a Drainage Plan to be reviewed and approved by the City. The Drainage Plan shall include measures to reduce the volume and velocity of post-construction stormwater runoff to the maximum extent practicable. Stormwater runoff shall not be augmented to adjacent properties, creeks, or storm drains. The Drainage Plan shall be included with the project drawings submitted to the City for site improvements.

When Required: Prior to approval of construction-related permit Initial Approval: Bureau of Building
Monitoring/Inspection: Bureau of Building

28. Site Design Measures to Reduce Stormwater Runoff
Requirement: Pursuant to Provision C.3 of the Municipal Regional Stormwater Permit issued under the National Pollutant Discharge Elimination System (NPDES), the project applicant is encouraged to incorporate appropriate site design measures into the project to reduce the amount of stormwater runoff. These measures may include, but are not limited to, the following:
a. Minimize impervious surfaces, especially directly connected impervious surfaces and surface parking areas; b. Utilize permeable paving in place of impervious paving where appropriate; c. Cluster structures;
d. Direct roof runoff to vegetated areas;
e. Preserve quality open space; and
f. Establish vegetated buffer areas.

When Required: Ongoing
Initial Approval: N/A
Monitoring/Inspection: N/A
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29. Source Control Measures to Limit Stormwater Pollution Requirement: Pursuant to Provision C.3 of the Municipal Regional Stormwater Permit issued under the National Pollutant Discharge Elimination System (NPDES), the project applicant is encouraged to incorporate appropriate source control measures to limit pollution in stormwater runoff. These measures may include, but are not limited to, the following:
a. Stencil storm drain inlets “No Dumping – Drains to Bay;” b. Minimize the use of pesticides and fertilizers;
c. Cover outdoor material storage areas, loading docks, repair/maintenance bays and fueling areas; d. Cover trash, food waste, and compactor enclosures; and e. Plumb the following discharges to the sanitary sewer system, subject to City approval:
i. Discharges from indoor floor mats, equipment, hood filter, wash racks, and, covered outdoor wash racks for restaurants;
ii. Dumpster drips from covered trash, food waste, and compactor enclosures; iii. Discharges from outdoor covered wash areas for vehicles, equipment, and accessories; iv. Swimming pool water, if discharge to on-site vegetated areas is not feasible; and v. Fire sprinkler teat water, if discharge to on-site vegetated areas is not feasible.

When Required: Ongoing
Initial Approval: N/A
Monitoring/Inspection: N/A

30. Vegetation Management on Creekside Properties
Requirement: The project applicant shall comply with the following requirements when managing vegetation prior to, during, and after construction of the project:
a. Identify and leave “islands” of vegetation in order to prevent erosion and landslides and protect habitat; b. Trim tree branches from the ground up (limbing up) and leave tree canopy intact; c. Leave stumps and roots from cut down trees to prevent erosion; d. Plant fire-appropriate, drought-tolerant, preferably native vegetation; e. Provide erosion and sediment control protection if cutting vegetation on a steep slope; f. Fence off sensitive plant habitats and creek areas if implementing goat grazing for vegetation management; g. Obtain a Tree Permit before removing a Protected Tree (any tree 9 inches diameter at breast height (dbh) or greater and any oak tree 4 inches dbh or greater, except eucalyptus and Monterey pine); h. Do not clear-cut vegetation. This can lead to erosion and severe water quality problems and destroy important habitat;
i. Do not remove vegetation within 20 feet of the top of the creek bank. If the top of bank cannot be identified, do not cut within 50 feet of the centerline of the creek or as wide a buffer as possible between the creek centerline and the development;
j. Do not trim/prune branches that are larger than 4 inches in diameter; k. Do not remove tree canopy;
l. Do not dump cut vegetation in the creek;
m. Do not cut tall shrubbery to less than 3 feet high; and n. Do not cut short vegetation (e.g., grasses, ground-cover) to less than 6 inches high.

When Required: Ongoing
Initial Approval: N/A
Monitoring/Inspection: Bureau of Building

31. Creek Protection Plan
a. Creek Protection Plan Required
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Requirement: The project applicant shall submit a Creek Protection Plan for review and approval by the City. The Plan shall be included with the set of project drawings submitted to the City for site improvements and shall incorporate the contents required under section 13.16.150 of the Oakland Municipal Code including Best Management Practices (“BMPs”) during construction and after construction to protect the creek. Required BMPs are identified below in sections (b), (c), and (d).

When Required: Prior to approval of construction-related permit Initial Approval: Bureau of Planning
Monitoring/Inspection: N/A
b. Construction BMPs
Requirement: The Creek Protection Plan shall incorporate all applicable erosion, sedimentation, debris, and pollution control BMPs to protect the creek during construction. The measures shall include, but are not limited to, the following:
i. On sloped properties, the downhill end of the construction area must be protected with silt fencing (such as sandbags, filter fabric, silt curtains, etc.) and hay bales oriented parallel to the contours of the slope (at a constant elevation) to prevent erosion into the creek. ii. The project applicant shall implement mechanical and vegetative measures to reduce erosion and sedimentation, including appropriate seasonal maintenance. One hundred (100) percent biodegradable erosion control fabric shall be installed on all graded slopes to protect and stabilize the slopes during construction and before permanent vegetation gets established. All graded areas shall be temporarily protected from erosion by seeding with fast growing annual species. All bare slopes must be covered with staked tarps when rain is occurring or is expected. iii. Minimize the removal of natural vegetation or ground cover from the site in order to minimize the potential for erosion and sedimentation problems. Maximize the replanting of the area with native vegetation as soon as possible.
iv. All work in or near creek channels must be performed with hand tools and by a minimum number of people. Immediately upon completion of this work, soil must be repacked and native vegetation planted.
v. Install filter materials (such as sandbags, filter fabric, etc.) acceptable to the City at the storm drain inlets nearest to the project site prior to the start of the wet weather season (October 15); site dewatering activities; street washing activities; saw cutting asphalt or concrete; and in order to retain any debris flowing into the City storm drain system. Filter materials shall be maintained and/or replaced as necessary to ensure effectiveness and prevent street flooding. vi. Ensure that concrete/granite supply trucks or concrete/plaster finishing operations do not discharge wash water into the creek, street gutters, or storm drains. vii. Direct and locate tool and equipment cleaning so that wash water does not discharge into the creek.
viii. Create a contained and covered area on the site for storage of bags of cement, paints, flammables, oils, fertilizers, pesticides, or any other materials used on the project site that have the potential for being discharged to the creek or storm drain system by the wind or in the event of a material spill. No hazardous waste material shall be stored on site. ix. Gather all construction debris on a regular basis and place it in a dumpster or other container which is emptied or removed at least on a weekly basis. When appropriate, use tarps on the ground to collect fallen debris or splatters that could contribute to stormwater pollution. x. Remove all dirt, gravel, refuse, and green waste from the sidewalk, street pavement, and storm drain system adjoining the project site. During wet weather, avoid driving vehicles off paved areas and other outdoor work.
xi. Broom sweep the street pavement adjoining the project site on a daily basis. Caked-on mud or dirt shall be scraped from these areas before sweeping. At the end of each workday, the entire site must be cleaned and secured against potential erosion, dumping, or discharge to the creek, street, gutter, or storm drains.

CP22046 Page 17
xii. All erosion and sedimentation control measures implemented during construction activities, as well as construction site and materials management shall be in strict accordance with the control standards listed in the latest edition of the Erosion and Sediment Control Field Manual published by the Regional Water Quality Control Board (RWQCB).
xiii. Temporary fencing is required for sites without existing fencing between the creek and the construction site and shall be placed along the side adjacent to construction (or both sides of the creek if applicable) at the maximum practical distance from the creek centerline. This area shall not be disturbed during construction without prior approval of the City.

When Required: Prior to approval of construction-related permit Initial Approval: Bureau of Planning
Monitoring/Inspection: N/A
c. Post-Construction BMPs
Requirement: The project shall not result in a substantial increase in stormwater runoff volume or velocity to the creek or storm drains. The Creek Protection Plan shall include site design measures to reduce the amount of impervious surface to maximum extent practicable. New drain outfalls shall include energy dissipation to slow the velocity of the water at the point of outflow to maximize infiltration and minimize erosion.

When Required: Prior to approval of construction-related permit Initial Approval: Bureau of Planning
Monitoring/Inspection: N/A
d. Creek Landscaping
Requirement: The project applicant shall include final landscaping details for the site on the Creek Protection Plan, or on a Landscape Plan, for review and approval by the City. Landscaping information shall include a planting schedule, detailing plant types and locations, and a system to ensure adequate irrigation of plantings for at least one growing season.

Plant and maintain only drought-tolerant plants on the site where appropriate as well as native and riparian plants in and adjacent to riparian corridors. Along the riparian corridor, native plants shall not be disturbed to the maximum extent feasible. Any areas disturbed along the riparian corridor shall be replanted with mature native riparian vegetation and be maintained to ensure survival.

When Required: Prior to approval of construction-related permit Initial Approval: Bureau of Planning
Monitoring/Inspection: N/A
e. Creek Protection Plan Implementation
Requirement: The project applicant shall implement the approved Creek Protection Plan during and after construction. During construction, all erosion, sedimentation, debris, and pollution control measures shall be monitored regularly by the project applicant. The City may require that a qualified consultant (paid for by the project applicant) inspect the control measures and submit a written report of the adequacy of the control measures to the City. If measures are deemed inadequate, the project applicant shall develop and implement additional and more effective measures immediately.

When Required: During construction; ongoing
Initial Approval: N/A
Monitoring/Inspection: Bureau of Building

32. Creek Dewatering/Diversion
Requirement: The project applicant shall submit a Dewatering and Diversion Plan for review and approval by the City, and shall implement the approved Plan. The Plan shall comply, at a minimum, with the following:

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a. All dewatering and diversion activities shall comply with the requirements of all necessary regulatory permits and authorizations from other agencies (e.g., Regional Water Quality Control Board, California Department of Fish and Wildlife, U.S. Fish and Wildlife Service, and Army Corps of Engineers). b. All native aquatic life (e.g., fish, amphibians, and turtles) within the work site shall be relocated by a qualified biologist prior to dewatering, in accordance with applicable regional, state, and federal requirements. Captured native aquatic life shall be moved to the nearest appropriate site on the stream channel downstream. The biologist shall check daily for stranded aquatic life as the water level in the dewatering area drops. All reasonable efforts shall be made to capture and move all stranded aquatic life observed in the dewatered areas. Capture methods may include fish landing nets, dip nets, buckets, and by hand. Captured aquatic life shall be released immediately in the nearest appropriate downstream site.

This condition does not allow the take or disturbance of any state or federally listed species, nor statelisted species of special concern, unless the applicant obtains a project specific authorization from the California Department of Fish and Wildlife and/or the U.S. Fish and Wildlife Service, as applicable. c. If any dam or other artificial obstruction is constructed, maintained, or placed in operation within the stream channel, ensure that sufficient water is allowed to pass down channel at all times to maintain native aquatic life below the dam or other artificial obstruction. d. Construction and operation of dewatering/diversion devices shall meet the standards contained in the latest edition of the Erosion and Sediment Control Field Manual published by the Regional Water Quality Control Board.
e. Coffer dams and/or water diversion system shall be constructed of a non-erodable material which will cause little or no siltation. Coffer dams and the water diversion system shall be maintained in place and functional throughout the construction period. If the coffer dams or water diversion systems fail, they shall be repaired immediately based on the recommendations of a qualified environmental consultant. The devices shall be removed after construction is complete and the site is stabilized. f. Pumped water shall be passed through a sediment settling device before returning to the stream channel.

Velocity dissipation measures are required at the outfall to prevent erosion.

When Required: Prior to approval of construction-related permit Initial Approval: Bureau of Planning; Bureau of Building Monitoring/Inspection: Bureau of Building

33. Structures in a Flood Zone
Requirement: The project shall be designed to ensure that new structures within a 100-year flood zone do not interfere with the flow of water or increase flooding. The project applicant shall submit plans and hydrological calculations for City review and approval with the construction-related drawings that show finished site grades and floor elevations elevated above the Base Flood Elevation (BFE).

When Required: Prior to approval of construction-related permit Initial Approval: Bureau of Building
Monitoring/Inspection: Bureau of Building

34. Construction Days/Hours
Requirement: The project applicant shall comply with the following restrictions concerning construction days and hours:
a. Construction activities are limited to between 7:00 a.m. and 7:00 p.m. Monday through Friday, except that pier drilling and/or other extreme noise generating activities greater than 90 dBA shall be limited to between 8:00 a.m. and 4:00 p.m.
b. Construction activities are limited to between 9:00 a.m. and 5:00 p.m. on Saturday. In residential zones and within 300 feet of a residential zone, construction activities are allowed from 9:00 a.m. to 5:00 p.m. only within the interior of the building with the doors and windows closed. No pier drilling or other extreme noise generating activities greater than 90 dBA are allowed on Saturday.

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c. No construction is allowed on Sunday or federal holidays.

Construction activities include, but are not limited to, truck idling, moving equipment (including trucks, elevators, etc.) or materials, deliveries, and construction meetings held on-site in a non-enclosed area.

Any construction activity proposed outside of the above days and hours for special activities (such as concrete pouring which may require more continuous amounts of time) shall be evaluated on a case-by-case basis by the City, with criteria including the urgency/emergency nature of the work, the proximity of residential or other sensitive uses, and a consideration of nearby residents’/occupants’ preferences. The project applicant shall notify property owners and occupants located within 300 feet at least 14 calendar days prior to construction activity proposed outside of the above days/hours. When submitting a request to the City to allow construction activity outside of the above days/hours, the project applicant shall submit information concerning the type and duration of proposed construction activity and the draft public notice for City review and approval prior to distribution of the public notice.

When Required: During construction
Initial Approval: N/A
Monitoring/Inspection: Bureau of Building

35. Construction Noise
Requirement: The project applicant shall implement noise reduction measures to reduce noise impacts due to construction. Noise reduction measures include, but are not limited to, the following:
a. Equipment and trucks used for project construction shall utilize the best available noise control techniques (e.g., improved mufflers, equipment redesign, use of intake silencers, ducts, engine enclosures and acoustically-attenuating shields or shrouds) wherever feasible. b. Except as provided herein, impact tools (e.g., jack hammers, pavement breakers, and rock drills) used for project construction shall be hydraulically or electrically powered to avoid noise associated with compressed air exhaust from pneumatically powered tools. However, where use of pneumatic tools is unavoidable, an exhaust muffler on the compressed air exhaust shall be used; this muffler can lower noise levels from the exhaust by up to about 10 dBA. External jackets on the tools themselves shall be used, if such jackets are commercially available, and this could achieve a reduction of 5 dBA. Quieter procedures shall be used, such as drills rather than impact equipment, whenever such procedures are available and consistent with construction procedures.
c. Applicant shall use temporary power poles instead of generators where feasible. d. Stationary noise sources shall be located as far from adjacent properties as possible, and they shall be muffled and enclosed within temporary sheds, incorporate insulation barriers, or use other measures as determined by the City to provide equivalent noise reduction.
e. The noisiest phases of construction shall be limited to less than 10 days at a time. Exceptions may be allowed if the City determines an extension is necessary and all available noise reduction controls are implemented.

When Required: During construction
Initial Approval: N/A
Monitoring/Inspection: Bureau of Building

36. Extreme Construction Noise
a. Construction Noise Management Plan Required
Requirement: Prior to any extreme noise generating construction activities (e.g., pier drilling, pile driving and other activities generating greater than 90dBA), the project applicant shall submit a Construction Noise Management Plan prepared by a qualified acoustical consultant for City review and approval that contains a set of site-specific noise attenuation measures to further reduce construction impacts associated with extreme noise generating activities. The project applicant shall implement the approved Plan during construction. Potential attenuation measures include, but are not limited to, the following:
i. Erect temporary plywood noise barriers around the construction site, particularly along on sites adjacent to residential buildings;
CP22046 Page 20
ii. Implement “quiet” pile driving technology (such as pre-drilling of piles, the use of more than one pile driver to shorten the total pile driving duration), where feasible, in consideration of geotechnical and structural requirements and conditions;
iii. Utilize noise control blankets on the building structure as the building is erected to reduce noise emission from the site;
iv. Evaluate the feasibility of noise control at the receivers by temporarily improving the noise reduction capability of adjacent buildings by the use of sound blankets for example and implement such measure if such measures are feasible and would noticeably reduce noise impacts; and v. Monitor the effectiveness of noise attenuation measures by taking noise measurements.

When Required: Prior to approval of construction-related permit Initial Approval: Bureau of Building
Monitoring/Inspection: Bureau of Building
b. Public Notification Required
Requirement: The project applicant shall notify property owners and occupants located within 300 feet of the construction activities at least 14 calendar days prior to commencing extreme noise generating activities. Prior to providing the notice, the project applicant shall submit to the City for review and approval the proposed type and duration of extreme noise generating activities and the proposed public notice. The public notice shall provide the estimated start and end dates of the extreme noise generating activities and describe noise attenuation measures to be implemented.

When Required: During construction
Initial Approval: Bureau of Building
Monitoring/Inspection: Bureau of Building

37. Operational Noise
Requirement: Noise levels from the project site after completion of the project (i.e., during project operation) shall comply with the performance standards of chapter 17.120 of the Oakland Planning Code and chapter 8.18 of the Oakland Municipal Code. If noise levels exceed these standards, the activity causing the noise shall be abated until appropriate noise reduction measures have been installed and compliance verified by the City.

When Required: Ongoing
Initial Approval: N/A
Monitoring/Inspection: Bureau of Building

38. Construction Activity in the Public Right-of-Way
a. Obstruction Permit Required
Requirement: The project applicant shall obtain an obstruction permit from the City prior to placing any temporary construction-related obstruction in the public right-of-way, including City streets, sidewalks, bicycle facilities, and bus stops.

When Required: Prior to approval of construction-related permit Initial Approval: Department of Transportation
Monitoring/Inspection: Department of Transportation
b. Traffic Control Plan Required
Requirement: In the event of obstructions to vehicle or bicycle travel lanes, bus stops, or sidewalks, the project applicant shall submit a Traffic Control Plan to the City for review and approval prior to obtaining an obstruction permit. The project applicant shall submit evidence of City approval of the Traffic Control Plan with the application for an obstruction permit. The Traffic Control Plan shall contain a set of comprehensive traffic control measures for auto, transit, bicycle, and pedestrian accommodations (or detours, if accommodations are not feasible), including detour signs if required, lane closure procedures, CP22046 Page 21
signs, cones for drivers, and designated construction access routes. The Traffic Control Plan shall be in conformance with the City’s Supplemental Design Guidance for Accommodating Pedestrians, Bicyclists, and Bus Facilities in Construction Zones. The project applicant shall implement the approved Plan during construction.

Initial Approval: Department of Transportation
Monitoring/Inspection: Department of Transportation
c. Repair of City Streets
Requirement: The project applicant shall repair any damage to the public right-of way, including streets and sidewalks, caused by project construction at his/her expense within one week of the occurrence of the damage (or excessive wear), unless further damage/excessive wear may continue; in such case, repair shall occur prior to approval of the final inspection of the construction-related permit. All damage that is a threat to public health or safety shall be repaired immediately.

When Required: Prior to building permit final
Initial Approval: N/A
Monitoring/Inspection: Department of Transportation

39. Construction and Demolition Waste Reduction and Recycling Requirement: The project applicant shall comply with the City of Oakland Construction and Demolition Waste Reduction and Recycling Ordinance (chapter 15.34 of the Oakland Municipal Code) by submitting a Construction and Demolition Waste Reduction and Recycling Plan (WRRP) for City review and approval, and shall implement the approved WRRP. Projects subject to these requirements include all new construction, renovations/alterations/modifications with construction values of $50,000 or more (except R-3 type construction), and all demolition (including soft demolition) except demolition of type R-3 construction. The WRRP must specify the methods by which the project will divert construction and demolition debris waste from landfill disposal in accordance with current City requirements. The WRRP may be submitted electronically at www.greenhalosystems.com or manually at the City’s Green Building Resource Center. Current standards, FAQs, and forms are available on the City’s website and in the Green Building Resource Center.

When Required: Prior to approval of construction-related permit Initial Approval: Public Works Department, Environmental Services Division Monitoring/Inspection: Public Works Department, Environmental Services Division

40. Underground Utilities
Requirement: The project applicant shall place underground all new utilities serving the project and under the control of the project applicant and the City, including all new gas, electric, cable, and telephone facilities, fire alarm conduits, street light wiring, and other wiring, conduits, and similar facilities. The new facilities shall be placed underground along the project’s street frontage and from the project structures to the point of service. Utilities under the control of other agencies, such as PG&E, shall be placed underground if feasible. All utilities shall be installed in accordance with standard specifications of the serving utilities.

When Required: During construction
Initial Approval: N/A
Monitoring/Inspection: Bureau of Building

41. Water Efficient Landscape Ordinance (WELO)
Requirement: The project applicant shall comply with California’s Water Efficient Landscape Ordinance (WELO) in order to reduce landscape water usage. For the specific ordinance requirements, see the link below:
http://www.water.ca.gov/wateruseefficiency/landscapeordinance/docs/Title%2023%20extract%20- %20Official%20CCR%20pages.pdf
CP22046 Page 22
For any landscape project with an aggregate (total noncontiguous) landscape area equal to 2,500 sq. ft. or less, the project applicant may implement either the Prescriptive Measures or the Performance Measures, of, and in accordance with the California’s Model Water Efficient Landscape Ordinance. For any landscape project with an aggregate (total noncontiguous) landscape area over 2,500 sq. ft., the project applicant shall implement the Performance Measures in accordance with the WELO.
a. Prescriptive Measures: Prior to construction, the project applicant shall submit the Project Information (detailed below) and documentation showing compliance with Appendix D of California’s Model Water Efficient Landscape Ordinance (see website below starting on page

38.14(g) in the link above):
b. Performance Measures: Prior to construction, the project applicant shall prepare and submit a Landscape Documentation Package for review and approval, which includes the following i. Project Information:

Date,
Applicant and property owner name,
Project address,
Total landscape area,
Project type (new, rehabilitated, cemetery, or home owner installed), Water supply type and water purveyor,
Checklist of documents in the package,
Project contacts, and
Applicant signature and date with the statement: “I agree to comply with the requirements of the water efficient landscape ordinance and submit a complete Landscape Documentation Package.”
ii. Water Efficient Landscape Worksheet
Hydrozone Information Table
Water Budget Calculations with Maximum Applied Water Allowance (MAWA) and EstimatedTotal Water Use
iii. Soil Management Report
iv. Landscape Design Plan
v. Irrigation Design Plan, and
vi. Grading Plan
Upon installation of the landscaping and irrigation systems, and prior to the final of a construction-related permit, the Project applicant shall submit a Certificate of Completion (see page 38.6 in the link above) and landscape and irrigation maintenance schedule for review and approval by the City. The Certificate of Completion shall also be submitted to the local water purveyor and property owner or his or her designee.

For the specific requirements within the Water Efficient Landscape Worksheet, Soil Management Report, Landscape Design Plan, Irrigation Design Plan and Grading Plan, see the link below:

When Required: Prior to approval of construction-related permit Initial Approval: Bureau of Planning
Monitoring/Inspection: Bureau of Building
CP22046 Page 23
Applicant Statement
I have read and accept responsibility for the Conditions of Approval. I agree to abide by and conform to the Conditions of Approval, as well as to all provisions of the Oakland Planning Code and Oakland Municipal Code pertaining to the project. __________________________________
Name of Project Applicant
__________________________________
Signature of Project Applicant

__________________________________
Date
Jennifer Stern
January 10, 2023
Creek Protection Measures
The following creek protection measures are adapted from the permit conditions and are specific to tree removal activities.

Creek Protection to be Used:

The following avoidance and minimization measures would be taken to protect Courtland Creek from any contamination or siltation during and post-construction:
- Project construction shall avoid any equipment or vehicles being stored or staged in the creek or on its banks.
- A Spill Prevention Control and Countermeasures Plan (SPCCP) would also be implemented in order to prevent discharges and spills of oil, grease, and other petroleum products during project construction. Additional measures to address spills are outlined below:
- All personnel involved in use of hazardous materials shall be trained in emergency response and spill control.
- Every reasonable precaution will be exercised to protect streams and other waters from pollution with fuels, oils, and other harmful materials. Safer alternative products (such as biodegradable hydraulic fluids) will be used where feasible. - Petroleum products, chemicals, fresh cement, and construction by-products containing, or water contaminated by, any such materials will not be allowed to enter flowing waters and will be collected and transported to an authorized upland disposal area. - Gas, oil, other petroleum products, or any other substances that could be hazardous to aquatic life and resulting from project-related activities, will be prevented from contaminating the soil and entering waters of the State or waters of the United States. - Contractors shall provide spill containment for vehicles and the containment shall adhere to all required State and federal standards. Construction vehicles and equipment will be properly maintained to prevent contamination of soil or water from external grease and oil or from leaking hydraulic fluid, fuel, oil, and grease. Vehicles and equipment will be checked daily for leaks. If leaks are found, the equipment will be removed from the site and will not be used until the leaks are repaired.
- Equipment will be refueled and serviced at designated refueling and staging sites located at least 50 feet from active stream channels or other water bodies. All refueling, maintenance, and staging of equipment and vehicles will be conducted in a location where a spill will not drain directly toward aquatic habitat. Appropriate containment materials will be installed to collect any discharge, and adequate materials for spill cleanup shall be maintained on-site throughout the construction period.
- All heavy equipment, vehicles, and supplies will be stored at the designated staging areas at the end of each work period.
- Storage areas for construction material that contains hazardous or potentially toxic materials will have an impermeable membrane between the ground and the hazardous material and will be bermed as necessary to prevent the discharge of pollutants to groundwater and runoff water.
- Any fuel stored within the project area shall be stored in a double-walled contained vessel surrounded by a berm appropriately sized for the volume. - All materials placed in streams, rivers, or other waters will be nontoxic and will not contain coatings or treatments or consist of substances deleterious to aquatic organisms that may leach into the surrounding environment in amounts harmful to aquatic organisms.

In the case of a minor spill, the following measures would be taken:
- Contain the spread of the spill
- Recover spilled materials
- Clean the contaminated area and/or properly dispose of contaminated materials - In the case of a semi-significant spill, the following measures would be taken:
- Notify the project foreman immediately. The foreman shall notify the Resident Engineer (RE) - Contain spread of the spill
- If the spill occurs on paved or impermeable surfaces, clean up using "dry" methods (absorbent materials, cat litter and/or rags)
- Contain the spill by encircling with absorbent materials and do not let the spill spread widely. - If the spill occurs in dirt areas, immediately contain the spill by constructing an earthen dike. Dig up and properly dispose of contaminated soil
- If the spill occurs during rain, cover spill with tarps or other material to prevent contaminating runoff In the case of a significant/hazardous spill, the following measures would be taken:
- Notify the RE immediately and follow up with a written report - Notify the local emergency response by dialing 911
- In addition to 911, the contractor will notify the proper county officials. It is the contractor's responsibility to have all emergency phone numbers at the construction site - Notify the Governor's Office of Emergency Services Warning Center, (805) 852-7550 - For spills of federal reportable quantities, in conformance with the requirements in 40 CFR parts 110,119, and 302, the contractor shall notify the National Response Center at (800) 424-8802 - Notification shall first be made by telephone and followed up with a written report The services of a spills contractor or a Haz-Mat team shall be obtained immediately.

Construction personnel shall not attempt to clean up the spill until the appropriate and qualified staff have arrived at the job site
- Other agencies which may need to be consulted include, but are not limited to, the Fire Department, the Public Works Department, the Coast Guard, the Highway Patrol, the City/County Police Department, Department of Toxic Substances, California Division of Oil and Gas, Cal/OSHA, RWQCB