Agenda packet — Ontario City Council, August 20, 2024 (part 3 of 10)

AGREED AND ACCEPTED:

DATED: _______________________ CITY:

CITY OF ONTARIO, a California municipal
corporation and general law city
APPROVED AS TO FORM:

By: ____________________________ By:___________________________ Ruben Duran Scott Ochoa
City Attorney City Manager
TEAM:

RANCHO BASEBALL, LLC, a
Washington limited liability company
By: __________________________
Name:

Its:
323
Department: Police Department
Prepared By: Nicole Alvarez
Department:

Prepared By: Nicole Alvarez
Staff Member Presenting: Mike Lorenz, Chief of
Police
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 10
SUBJECT: ACCEPTANCE OF GRANT FROM THE CALIFORNIA OFFICE OF TRAFFIC SAFETY (OTS) FY24/25 SELECTIVE TRAFFIC ENFORCEMENT PROGRAM (STEP) GRANT

CITY OF ONTARIO
Agenda Report
August 20, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That City Council authorize the City Manager or his designee to execute all documents necessary to accept a 12-month grant in the amount of $705,000 from the California Office of Traffic Safety (OTS) for participation in the FY24/25 Selective Traffic Enforcement Program (STEP) Grant.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
Pursue City's Goals and Objectives by Working with Other Governmental Agencies FISCAL IMPACT: Grant awards were announced in July 2024 and the funds will be used to cover eligible costs incurred from October 1, 2024 to September 30, 2025. These grants are reimbursable every quarter and fund police overtime, education, equipment, supplies, and training to conduct DUI saturation patrols, special traffic enforcement, field enforcement, street racing enforcement and training, education, and sobriety checkpoints. The department is approved for $705,000 in grant funding and the City is not required to provide matching funds for the grants. The associated revenues and appropriations for the approved grant amount will be included in a subsequent quarterly budget report to the City Council.

BACKGROUND & ANALYSIS: The California Office of Traffic Safety (OTS), through the National Highway Traffic Safety Administration (NHTSA), offers local law enforcement agencies overtime grants to mitigate traffic safety program deficiencies, expand ongoing activities, develop new programs, and conduct sobriety checkpoints. The grant period includes two “National Impaired Driving Campaign” mobilization periods: the Winter Mobilization which occurs around Christmas and New Year’s Eve and Summer Mobilization which occurs around Labor Day. Sobriety checkpoints, DUI saturation patrols and special traffic enforcement will be scheduled during each of the highly publicized mobilization periods. Additional operations will continue to be conducted outside the mobilization periods. Each overtime operation and checkpoint will be conducted according to each operation’s specific needs, which may require supervisors, officers, technicians, 324
and/or clerical/other staff members. The goal of the OTS grant program includes: (1) reducing the number of people killed in alcohol-involved crashes through the combined efforts of local law enforcement agencies, California Highway Patrol, and OTS; (2) reducing the total number of traffic collisions that occur within the City; (3) through press releases, inform citizens of increased enforcement and educate drivers that the only way to “avoid” arrest, injury, and/or death is to drive sober; and (4) network with regional law enforcement agencies to conduct multiple joint operations to decrease alcohol related issues such as DUI’s and underage drinking. 325
1 Nicole Alvarez
From: OTS Email <[email protected]>
Sent: Monday, July 8, 2024 10:18 AM
To: Nicole Alvarez
Subject: OTS Tentatively Approved Your Application 25-005699 Follow Up Flag: Follow up
Flag Status: Flagged
CongratulaƟons! Through a compeƟƟve process, the Office of Traffic Safety (OTS) has tentaƟvely approved your applicaƟon 25-005699 in the amount of $705,000 with the proposal Ɵtled “SelecƟve Traffic Enforcement Program (STEP).” This tentaƟve award is conƟngent on approval from the NaƟonal Highway Traffic Safety AdministraƟon. Please do not publicly announce this tentaƟve award unƟl the grant agreement is fully negoƟated and signed by the OTS.

Your OTS Coordinator will contact you to discuss your proposal and explain the grant development process. It is our goal to have grants start the first of October. Costs incurred and accrued prior to the grant start date are not reimbursable.

Please noƟfy your coordinator if approval from a City Council or the Board of Supervisors is required. You should begin that process now to avoid a delay in execuƟng your grant.

Thank you for prioriƟzing traffic safety so that everyone traveling on California roadways can go safely.

Again, congratulaƟons on the success of your applicaƟon.

Sincerely,
Barbara L. Rooney
Director
326
Department: Public Works
Prepared By: Blaine M Ishii
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Andrea Ampig, Bonnie Tam
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 11
SUBJECT: AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH ROUTEWARE, INC. FOR RECURRING SUBSCRIPTION AND LICENSE COSTS FOR

INTEGRATED WASTE COLLECTION ROUTING SOFTWARE

CITY OF ONTARIO
Agenda Report
August 20, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize the City Manager or his designee to execute Amendment No. 2 to the Professional Services Agreement with Routeware, Inc., of Portland, Oregon, for recurring costs for subscriptions, licenses, and ongoing technical support for Integrated Waste Collection Routing Software, exercising the two (2) additional one-year terms and increasing the contract amount by $536,190 for a total contract amount not-to-exceed $1,657,182 over the five-year term.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
FISCAL IMPACT: Amendment No. 2 to the Professional Services Agreement with Routeware, Inc. (Routeware) is in the amount of $243,723 per year plus a 10% contingency of $24,372 per year for a total not-to-exceed contract amount of $1,657,182 over the five-year term. The Fiscal Year 2024-25 Adopted Budget includes partial appropriations in the Integrated Waste Fund for the Professional Services Agreement with Routeware, Inc. If approved, additional appropriations will be included in future quarterly budget updates to the City Council for approval.

BACKGROUND & ANALYSIS: On October 19, 2021, the City Council approved a one-year Professional Services Agreement with Routeware for routing optimization and service confirmation software. Amendment No. 1 was executed on August 15, 2023 to amend the project scope to include additional video software. With the continuous growth in the Ontario Ranch area and new development in the existing Old Model Colony, there was a need to optimize routing efficiency and streamline periodic adjustments to refuse, organics, and recycling routes. Daily route optimization increases collection productivity and saves on fuel and vehicle maintenance costs.

The proposed Amendment with Routeware will allow the Integrated Waste Department to continue utilizing the previously approved services and will add additional services for camera installation and integration to the City’s existing customer service system. The software and cameras installed 327
on collection vehicles will work together to aide in service confirmation, incident investigations and improve routing and service efficiency.
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AMENDMENT NO. 2 TO THE PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO AND ROUTEWARE, INC.

1. Parties and Date.

This Amendment No. 2 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and Routeware, Inc., a Corporation (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”

2. Recitals.

2.1 Agreement. The City and Consultant have entered into an agreement entitled “PROFESSIONAL SERVICES AGREEMENT” dated October 19, 2021 (“Agreement”).

2.2 Amendment Purpose. The City and Consultant desire to amend the Agreement to extend the contract term, revise the scope of work, and increase the contract amount by $487,446 (Four Hundred Eighty-Seven Thousand Four Hundred Forty-Six Dollars). The Parties have heretofore entered into that Amendment No. 1 dated August 15, 2023.

2.3 Amendment Authority. This Amendment No. 2 is authorized pursuant to Section

3.7.15 of the Agreement.

3. Terms.

3.1 Amendment. Section 3.1.2 and 3.2.1 of the Agreement is hereby amended in its entirety to read as follows:
“3.1.2 Term. The term of this Agreement shall be from November 1, 2021 to October 31, 2026, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Service.” “3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibits “C,” “C-2,” and “C3,” attached hereto and incorporated herein by reference. The total compensation shall not exceed $1,608,438 (One Million Six Hundred Eight Thousand Four Hundred Thirty-Eight Dollars) without written approval of the City Council or City Manager, as applicable. Extra Work may be 329
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authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.”
Exhibits C, C-2, and C-3 are hereby deleted in its entirety and replaced with Attachment A attached hereto and incorporated herein by reference.

3.2 Continuing Effect of Agreement. Except as amended by this Amendment No. 2, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 2. From and after the date of this Amendment No. 2, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 2.

3.3 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 2.

3.4 Severability. If any portion of this Amendment No. 2 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.5 Integration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of this Amendment, including written or verbal communications between the Parties, which shall have no relevance unless expressly incorporated herein. This is an integrated amendment.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 2 TO THE PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF ONTARIO AND ROUTEWARE, INC.

IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 2 as of the day and year first above written.

CITY OF ONTARIO ROUTEWARE, INC.

By:

Its:

Printed Name:

By:

Its:

Printed Name:
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
Approved By:

Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:

City Clerk
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ATTACHMENT A

COMPENSATION

PRODUCT UNIT QTY UNIT PRICE EXTENDED
Premium Video
System Fee
Per Month 84 $68.93 $5,790.12
Routeware Control
Center Support
Per Month 1 $613.59 $613.59
Cloud Hosting Per Month 1 $951.46 $951.46
Auto Pickup System
Fee
Per Month 28 $24.86 $696.08
Picture Service Fee Per Month 84 $50.59 $4,271.40
Cellular Data Charge
(RD)
Per Month 28 $16.95 $474.60
Pounder Service Fee Per Month 28 $22.60 $632.80
RouteMaker
Subscription
Per Month 1 $98.45 $98.45
OBC Support Fee –
TaaS
Per Month 28 $138.43 $3,876.04
Interface Support Per Month 1 $295.27 $295.27
OBC Support Fee Per Month 28 $93.23 $2,610.44
Monthly Subtotal $20,310.25
Yearly Compensation $243,723
332
Department: Public Works
Prepared By: Blaine M Ishii
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Andrea Ampig, Bonnie Tam
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 12
SUBJECT: AMENDMENTS TO THE PROFESSIONAL SERVICES AGREEMENTS WITH GO2ZERO STRATEGIES, LLC AND GHD, INC. FOR ON-CALL SOLID WASTE CONSULTING

SERVICES

CITY OF ONTARIO
Agenda Report
August 20, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council take the following actions:

A. Authorize the City Manager or his designee to execute Amendment No. 2 to the Professional Services Agreement with Go2Zero Strategies, LLC, of Irwindale, California, for on-call Solid Waste Consulting Services exercising the two (2) additional one-year extensions and increasing the contract amount by $100,000 per year for a total not-to-exceed contract amount of $500,000 over the five-year term; and
B. Authorize the City Manager or his designee to execute Amendment No. 1 to the Professional Services Agreement with GHD, Inc., of Irvine, California, for on-call Solid Waste Consulting Services exercising the two (2) additional one-year extensions and increasing the contract amount by $100,000 per year for a total not-to-exceed contract amount of $300,000 over the five-year term.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT: The Fiscal Year 2024-25 Adopted Budget includes appropriations in the Integrated Waste Fund for on-call Solid Waste Consulting Services. The recommended Amendment No. 2 to the Professional Services Agreement with Go2Zero Strategies, LLC increases the authorized contract amount by $100,000 for Fiscal Year 2024-25 for a total not-to-exceed contract amount of $400,000. The second additional option year will increase the contract amount by $100,000 for Fiscal Year 2025-26 for a total not-to-exceed contract amount of $500,000.

The recommended Amendment No. 1 to the Professional Services Agreement with GHD, Inc. increases the authorized contract amount by $100,000 for Fiscal Year 2024-25 for a total not-toexceed contract amount of $200,000. The second additional option year will increase the contract 333
amount by $100,000 for Fiscal Year 2025-26 for a total not-to-exceed contract amount of $300,000.

BACKGROUND & ANALYSIS: California Senate Bill (SB) 1383 was signed into law in September 2016. The law requires communities to reduce organic waste disposal in landfills, such as food waste, by 75% by January 1, 2025. On January 1, 2022, the SB 1383 regulations to meet the organic waste reduction and edible food recovery targets took effect, including penalties for noncompliance issued by the State. Go2Zero provides a SMART tracking system for SB1383 which entails optimization of all data collection, contamination documentation, analytics, recordkeeping, and reporting functions for SB1383 compliance. They also provide additional guidance on State mandates created by CalRecycle such as procurement targets, capacity planning, edible food recovery, and compliance reviews.

The City collects all waste materials generated citywide, serving the commercial sector, industrial sector, and approximately 30,000 single-family homes. GHD, Inc. will provide consulting services for the City’s collection, hauling, processing, and disposal of solid waste, recyclables, organics, and other materials which can be diverted from landfills. The consultant will also conduct activities related to transfer station design and build oversight. 334
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AMENDMENT NO. 2 TO THE PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO AND
GO2ZERO STRATEGIES

1. Parties and Date.

This Amendment No. 2 to the Agreement (as defined herein) is made and entered as of this ____________, by and between the City of Ontario (“City”) and Go2Zero Strategies, an LLC, Limited Liability Company (“Consultant”). City and Consultants are sometimes individually referred to as “Party” and collectively as “Parties.”

2. Recitals.

2.1 Agreement. The City and Consultant have entered into an agreement entitled “Professional Service Agreement” dated December 13, 2021 (“Agreement”).

2.2 Amendment Purpose. The City and Consultant desire to amend the Agreement to exercise the first additional one-year term and increase total compensation by One Hundred Thousand Dollars ($100,000) for a total compensation of Four Hundred Thousand Dollars ($400,000).

2.3 Amendment Authority. This Amendment No. 2 is authorized pursuant to Section

3.7.14 of the Agreement.

3. Terms.

3.1 Amendment. Section 3.2.1 of the Agreement is hereby amended in its entirety to read as follows:
“3.1.2 Term. The term of this Agreement shall be from November 16, 2021 to November 15, 2025, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than one (1) additional one-year term.

Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.”
"3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursement, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” 335
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attached hereto and incorporated herein by reference. The total compensation shall not exceed Four Hundred Thousand Dollars ($400,000) without written approval of the City Council or City Manager, as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rate and manner set forth in this agreement.”

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SIGNATURE PAGE FOR AMENDMENT NO. 2 TO PROFESSIONAL SERVICES

AGREEMENT BETWEEN THE CITY OF ONTARIO
AND GO2ZEROSTRATEGIES
IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 2 as of the day and year first above written.

CITY OF ONTARIO GO2ZERO STRATEGIES
By:

Its:

Printed Name:

By:

Its:

Printed Name:

Approved By:

Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:

City Clerk
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AMENDMENT NO. 1 TO THE PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO AND
GHD, INC.

1. Parties and Date.

This Amendment No. 1 to the Agreement (as defined herein) is made and entered as of _____________, by and between the City of Ontario (“City”) and GHD Inc., a Corporation (“Consultant”). City and Consultants are sometimes individually referred to as “Party” and collectively as “Parties.”

2. Recitals.

2.1 Agreement. The City and Consultant have entered into an agreement entitled “Professional Service Agreement” dated December 10, 2021 (“Agreement”).

2.3 Amendment Authority. This Amendment No. 1 is authorized pursuant to Section

3.7.14 of the Agreement.

3. Terms.

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"3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursement, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Two Hundred Thousand Dollars ($200,000) without written approval of the City Council or City Manager, as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rate and manner set forth in this agreement.”

3.2 Continuing Effect of Agreement. Except as amended by this Amendment No. 1, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 1. From and after the date of this Amendment No. 1, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 1.

3.4 Severability. If any portion of this Amendment No. 1 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

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SIGNATURE PAGE FOR AMENDMENT NO. 1 TO PROFESSIONAL SERVICES

AGREEMENT BETWEEN THE CITY OF ONTARIO
AND GHD INC.

IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 1 as of the day and year first above written.

CITY OF ONTARIO GHD INC.

By:

Its:

Printed Name:

By:

Its:

Printed Name:

Approved By:

Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:

City Clerk
340
Department: Police Department
Prepared By: Zina Hullings
Department:

Prepared By: Zina Hullings
Staff Member Presenting: Mike Lorenz, Chief of
Police
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 13
SUBJECT: AN AMENDMENT TO THE GOODS AND SERVICES AGREEMENT WITH HELITENDER, INC. FOR SCHEDULED AND UNSCHEDULED REPAIRS, INSPECTION SERVICES,

PARTS AND MAINTENANCE SERVICES

CITY OF ONTARIO
Agenda Report
August 20, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize the City Manager, or his designee, to execute Amendment No. 2 to the Goods and Services Agreement with Helitender, Inc. of Pacoima, CA, for scheduled and unscheduled repairs, inspection services, parts and maintenance services for Police Department helicopters in the amount of $150,000 for a total not-to-exceed contract amount of $800,000 and extend the agreement to June 30, 2027.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
Operate in a Businesslike Manner
FISCAL IMPACT: The recommended amendment increases the authorized contract amount of $650,000 by $150,000, for a new not-to-exceed total contract amount of $800,000 and extend the agreement to June 30, 2027. Appropriations are included in the Fiscal Year 2024-25 Adopted Operating Budget for scheduled and unscheduled repairs, inspection services, parts and maintenance services for helicopters.

BACKGROUND & ANALYSIS: The Police Department Air Support Unit maintains three (3) Airbus Helicopters for air patrol. To ensure the helicopters are safe to operate and readily available (to support police, fire and departmental services) maintenance and repairs are necessary on a regular basis and undue time delays affect the City’s ability to provide services to the community. Due to specialized maintenance services and parts used on the helicopters, there is a limited number of authorized vendors that can provide these services. In many cases, there is a single authorized vendor that is qualified or authorized to provide the part or service.

On May 3, 2022, the City Council approved Helitender, Inc. as a sole source, pre-authorized vendor for scheduled and unscheduled helicopter repairs, inspection services, parts, and maintenance services. Establishing this pre-authorized list of vendor(s) facilitates the following:
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Ensure that the helicopters are serviced and repaired when needed; Service is performed by qualified vendors familiar with Airbus helicopters; and Better maintenance because vendors are familiar with the service and repair history of the helicopters.
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AMENDMENT NO. 2

TO THE GOODS & SERVICES AGREEMENT

BETWEEN

THE CITY OF ONTARIO
AND

HELITENDER

1. Parties and Date.

This Amendment No. 2 to the Agreement (as defined herein) is made and entered into as of this MM-DD-YYYY , by and between the City of Ontario (“City”) and HELITENDER, a corporation with its principal place of business at 10300 Airpark Way, Hangar 3, Pacoima, California 91331 (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties.”

2. Recitals.

2.1 Agreement. The City and Contractor have entered into an agreement entitled “Goods & Services Agreement” dated July 1, 2019 (“Agreement”).

2.2 Amendment Purpose. The City and Contractor desire to amend the Agreement for the purpose of extending the services of Contractor from July 1, 2019 through June 30, 2027 to continue to provide scheduled and unscheduled helicopter maintenance, repairs and inspections and to increase the compensation amount by One Hundred Fifty Thousand Dollars ($150,000).

2.3 Amendment Authority. This Amendment No. 2 is authorized pursuant to Section 3.4 of the Agreement.
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3. Terms.

3.1 Amendment. Section 1.3 and Section 2.2 of the Agreement is hereby amended in its entirety to read as follows:

1.3 “The term of this Agreement shall be from July 1, 2019 to June 30, 2027 unless earlier terminated as provided herein.”

2.2 “The City of Ontario will accept an escalation in a not to exceed 5% in year one, and not to exceed 5% in year two and not exceed 5% in year three, with 30 days written notice.

Previous Exhibit A, B & C is hereby deleted in its entirety and replaced with new Exhibit A, B & C (attached) hereto and incorporated herein by reference. Vendor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “A”, “B”, and “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Eight Hundred Thousand Dollars ($800,000) without written approval of City’s City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

3.2 Continuing Effect of Agreement. Except as amended by this Amendment No. 2, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 2. From and after the date of this Amendment No.2, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 2.

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SIGNATURE PAGE FOR AMENDMENT NO. 2 TO GOODS & SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO

AND HELITENDER
IN WITNESS WHEREOF, the Parties have entered into this Amendment No.2 as of the day and year first above written.

CITY OF ONTARIO HELITENDER
Approved By:

By:

Scott Ochoa
City Manager
Approved as to Form:

Its: Owner and President
Printed Name: Nick Vartanian
Best Best & Krieger LLP
City Attorney
Attested By:

By:

Its: Treasurer
Printed Name: Armen Vartanian
City Clerk
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EXHIBIT “A”

SCOPE OF SERVICES
Perform scheduled and unscheduled maintenance, repairs and inspections on Airbus AS350B3/H125 helicopters per the aircraft manufacturer’s specifications and F.A.A. regulations including but not limited to:
100 - Hour Inspections
150 – Hour Inspections
300 - Hour Inspections
750 – Hour Inspections
1500- Hour Inspections
Engine inspections and maintenance
Track and balance main rotor assembly, tail rotor driveshaft Airframe maintenance and inspections
Annual Inspections
Any repairs to the aircraft
Any maintenance is required to comply with Airworthiness Directives, mandatory service bulletins, service bulletins, and/or modifications as required by the aircraft manufacturer or the F.A.A. 346

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EXHIBIT “B”

SCHEDULE OF SERVICES
The schedule and unscheduled of maintenance services will be determined by the type and scope of the aircraft maintenance or inspection to be performed. Any unscheduled maintenance will be scheduled at a mutually acceptable time with both the Contractor and the city. Those instances where the primary aircraft is not flyable, or "AOG" (aircraft on ground), the City will be given consideration in the priority of scheduling maintenance due to the loss of emergency services to the community.

The Contractor agrees to perform maintenance services at the Ontario Police Department Air Support Facility as necessary when the aircraft is not able to be flown to the Contractor's facility.

Otherwise, maintenance services will be performed at the Contractor's facility.

CITY APPROVED PILOTS ARE THE ONLY PERSONNEL AUTHORIZED TO FLY CITY AIRCRAFT.
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EXHIBIT “C”

COMPENSATION
Contractor will be paid $120.00 per hour or current shop rate, for labor and will support all invoices with appropriate hourly documentation.

The City will provide parts and materials to the Contractor. Otherwise, the Contractor at the expense of the City will provide parts and materials. The City reserves the right to provide any part or material through a City authorized vendor for the maintenance and/or repair of the City's helicopters.
348
Department: Public Works
Prepared By: Adrian Escamilla
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Andrea Ampig, Bonnie Tam
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 14
SUBJECT: AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH TRANSTECH, INC. FOR CONSTRUCTION MANAGEMENT FOR THE VINEYARD

PARKING STRUCTURE AT THE ONTARIO SPORTS COMPLEX

CITY OF ONTARIO
Agenda Report
August 20, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize the City Manager or his designee to execute Amendment No. 4 to the Professional Services Agreement with Transtech, Inc. (Transtech), of Chino, California, for on-call Construction Management Services for the Vineyard Parking Structure in the amount of $1,361,750 for a total not-to-exceed contract amount of $2,657,750.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: The proposed Amendment No. 4 will increase the contract amount by $1,361,750 for a total not-to-exceed contract amount of $2,657,750. The total not-to-exceed contract amount includes on-call work performed for various citywide projects. Additional appropriations in the Capital Projects-Measure Q fund will be included in future quarterly budget updates to the City Council for approval for on-call Construction Management Services for the Vineyard Parking Structure.

BACKGROUND & ANALYSIS: On April 4, 2023, the City entered into the current Professional Services Agreement with Transtech for on-call Project Management Services after participating in a competitive RFP process. On January 16, 2024, Amendment No. 1 with Transtech was approved for the Proposed Minor League Baseball Stadium and Parking Structure Expedited Plan Check, Building Official, and Building Inspection Services. On March 5, 2024, Amendments No. 2 and No. 3 were approved for Project Management Services for the Concession Stand Remodel at Latimer field and to increase the total not-to-exceed contract amount for various on-call projects.

The proposed Vineyard Parking Structure will provide the necessary public parking for the Regional Sports Complex located in the Ontario Ranch Community. The sports fields will include approximately 13 multi-use fields, eight multi-use baseball/softball fields and open space. The proposed Amendment No. 4 to the Professional Services Agreement with Transtech includes the 349
preparation of the bridging documents and plans, construction management services and overall project coordination between the City and awarded General Contractor. If approved, Staff anticipates the Vineyard Parking Structure to be operational by June 2026. 350
46700.00100\33287662.1

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BB&K 2020
AMENDMENT NO. 4 TO THE PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO AND
TRANSTECH ENGINEERS, INC.

1. Parties and Date.

This Amendment No. 4 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and Transtech Engineers, Inc., a Corporation (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”

2. Recitals.

2.1 Agreement. The City and Consultant have entered into an agreement entitled “Professional Services Agreement” dated April 4, 2023 (“Agreement”).

2.2 Amendment Purpose. The City and Consultant desire to amend the Agreement to increase the contract amount by One Million Three Hundred Sixty-One Thousand Seven Hundred Fifty Dollars ($1,361,750) to include the following services for the Vineyard Parking Structure bridging document preparation. Please see Attachment “A”. The parties have heretofore entered into Amendment No. 1 dated January 16, 2024, Amendment No. 2 dated March 5, 2024, and Amendment No. 3 dated March 5, 2024.

2.3 Amendment Authority. This Amendment No. 4 is authorized pursuant to Section

3.7.14 of the Agreement.

3. Terms.

3.1 Amendment. Section 3.2.1 of the Agreement is hereby amended in its entirety to read as follows:
“3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements for all Services rendered under this Agreement in Exhibit “C” at the attached hereto and incorporated herein by reference. The total compensation shall not exceed Two Million Six Hundred Fifty-Seven Thousand Seven Hundred Fifty Dollars ($2,657,750) without City Manager’s written approval. Extra work may be 351
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BB&K 2020
authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement."
Exhibit C is hereby deleted in its entirety and replaced with Attachment A attached hereto and incorporated herein by reference.

3.2 Continuing Effect of Agreement. Except as amended by this Amendment No. 4, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 4. From and after the date of this Amendment No. 4, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 4.

3.4 Severability. If any portion of this Amendment No. 4 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

Page 3 of 3 ends

BB&K 2020
SIGNATURE PAGE FOR AMENDMENT NO. 4 TO THE PROFESSIONAL SERVICES

AGREEMENT BETWEEN THE CITY OF ONTARIO
AND TRANSTECH ENGINEERS, INC.

IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 4 as of the day and year first above written.

CITY OF ONTARIO Transtech Engineers, Inc.

By:

Its:

Printed Name:

By:

Its:

Printed Name:
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
Approved By:

Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:

City Clerk
353
Task Order Proposal 1
Vineyard DB (Design-Build) Parking Structure
May 20, 2024
City of ONTARIO
1333 S. Bon View Ave
Ontario, CA 91761
Attention: Adrian Escamilla, Design & Construction – Project Manager Project: Vineyard DB (Design-Build) Parking Structure
Services: Bridging document preparation
DB RFPQ/RFP package preparation
Project management during selection of the DB team
Construction management/owner representative services during design and construction (design and construction by selected DB Team)
Dear Mr. Escamilla:

Transtech is pleased to submit this Task Order Proposal for the subject project under our Master Contract with the City.

This Task Order is submitted for the Vineyard DB (Design-Build) Parking Structure to provide the following services.
• Bridging document preparation
• DB RFPQ/RFP package preparation
• Project management during selection of the DB team
www.transtech.org
855.595.2495 (toll-free)
Attachment "A"
354
Task Order Proposal 2
Vineyard DB (Design-Build) Parking Structure
• Construction management/owner representative services during design and construction (design and construction by selected DB Team) Location of the proposed Parking Structure is shown below:

It is our understanding that the City desires approx. 620 parking spaces Proposed

PARKING

STRUCTURE
N
N
355
Task Order Proposal 3
Vineyard DB (Design-Build) Parking Structure
Proposed Services by Transtech:

SERVICES DURING SELECTION OF THE DB TEAM/ENTITY, INCLUDING

PREPARATION OF DB BRIDGING DOCUMENTS, RFPQ/RFP PACKAGES Preparation of bridging documents and plans. The bridging documents and plans will graphically convey necessary core parking structure requirements including, but not limited to, size, shape, circulation, parking space count, disabled access compliance, electric vehicle charging requirements, entrance/exit location, stairs, elevator, site access, path of travel from right-of-way, exterior façade improvements, etc.

SERVICES DURING DESIGN DEVELOPMENT AND CONSTRUCTION DOCUMENT

PREPARATION BY THE SELECTED DB TEAM/ENTITY
Management services provided during design development and construction document preparation by the successful DB Team specifically include, but are not limited to, the following:

Overall project coordination between City [as Owner], City [as Authority Having Jurisdiction (‘AHJ’)], the successful DB Team, utility purveyors, and other vested stakeholders.

Project performance review, specifically including cost and schedule monitoring. This task assumes that the DB Team will be required to design to the budget.

Assistance with payment processing.

Assistance with utility coordination.

Coordination and approval monitoring from all AHJs having jurisdiction over any portion of this project.

Attendance as Owner’s Representative at design related meetings.

Monitoring and filing of all Project Record Documents developed during design.

Review of the plans for conformance with the requirements of the City’s RFP and the Contract Documents where not directly related to code compliance. (Transtech assumes that all AHJ services will be provided by others, but Transtech will identify observed deficiencies where appropriate during development of the design documents.)
Coordination assistance between DB Team and City during City review as AHJ. This scope includes both plan review and permit issuance. 356
Task Order Proposal 4
Vineyard DB (Design-Build) Parking Structure
Assistance during scoping, selection, and contract award for special inspection services.

Request for Information (‘RFI’) coordination between DB Team, the City (as Owner), the City (as AHJ), and identified stakeholders.

SERVICES DURING CONSTRUCTION AND PROJECT CLOSE OUT
Construction management and coordination between City (as Owner), City (as AHJ), the DB Team and other stakeholders.

Project performance review, specifically including cost and schedule monitoring.

Assistance with payment processing.

Assistance with utility coordination and issues involving closure and/or use of public right of way.

Coordination and approval monitoring from all AHJs having jurisdiction over any portion of this project.

Attendance as Owner’s Representative at construction related meetings.

Monitoring and filing of all Project Record Documents developed during construction.

Verification of subcontractor compliance with State Contractor License Board and Department of Industrial Relations requirements for valid license and registration for each subcontract let during construction.

Assistance with special inspection and testing services and coordination of special inspection and testing efforts during construction. These services will be provided by a separate consultant under a separate contract to the City.

Transtech will monitor the construction for conformance with the requirements of the City’s RFP and the Contract Documents where not directly related to code compliance.

Notes:

Transtech will not perform plan review or inspection in the capacity of ‘Authority Having Jurisdiction’ (‘AHJ’) over the work of this project. Transtech anticipates that AHJ services will be provided by various City Departments and/or Divisions or other City forces, which would include processing, plan review, permit issuance, and inspection by Building and Safety, Public Works, Engineering, OMUC, and Planning.
357
Task Order Proposal 5
Vineyard DB (Design-Build) Parking Structure
City will provide Phase 1 Environmental Site Assessment (‘ESA’).

City will provide Geological and Soils
Investigation (‘Soils Report’). We
have received a Soils report for the
entire site from te City. The report I
prepared by RMA Group.

The report shows that 2 borings were
made within the proposed parking
structure area (Boring B-15 and B-16).

We contacted Ken Dowell, PE, PE, the
engineer who prepared the report to
make sure these 2 borings ae
sufficient. He indicated that RMA di
several borings within the site and
conditions within the site are similar
and 2 borings should be sufficient for
the parking structure.

City will provide any soils and existing
conditions reports showing the site
does not contain any hazardous
materials.

City will provide plans for overall site, access, roads, traffic signals, adjacent areas improvements, main utility service lines and connection points (connection points assumed to be provided within approx. 20’ of PS footprint), and all other site improvements plans, etc. The scope of DB will be limited to vertical construction within the foot print of the Parking Structure plus utility laterals to service connection points and sidewalk, landscape improvements within the 20’ perimeter area of PS footprint, plus driveway connection to proposed Vineyard Ave being designed by City’s design consultant (Vineyard Ave will be constructed by others.) City will provide any utility plans and any utility relocation plans.

City will provide ALTA survey and site plans.

Proposed

PARKING

STRUCTURE
358
Task Order Proposal 6
Vineyard DB (Design-Build) Parking Structure
Anticipated Compensation for Transtech’s Proposed Services:

Tasks Position Av.

Hrs/Month
Approx.

Duration
(Months)
Tot. Hrs Av. Rate Budget
Staff Level: Sr. Eng/Sr. PM/Sr. CM 40 8 150 $225 $33,750 Staff Level: Project Eng/CM/PM 30 8 240 $200 $48,000
Staff Level: Associate Eng/Office Eng 20 8 160 $175 $28,000 $50,000
Total: $159,750
Staff Level: Sr. Eng/Sr. PM/Sr. CM 40 7 280 $225 $63,000 Staff Level: Project Eng/CM/PM 30 7 210 $200 $42,000
Staff Level: Associate Eng/Office Eng 20 7 140 $175 $24,500 Total: $129,500
Staff Level: Sr. Eng/Sr. PM/Sr. CM 50 15 750 $225 $168,750 Staff Level: Project Eng/CM/PM 170 15 2,550 $200 $510,000 Staff Level: Associate Eng/Office Eng 150 15 2,250 $175 $393,750 Total: $1,072,500
Anticipated Total Compensation for Transtech’s Proposed Services $1,361,750

SERVICES DURING

SELECTION OF THE DB

TEAM/ENTITY, INCLUDING

PREPARATION OF DB

BRIDGING DOCUMENTS,
RFPQ/RFP PACKAGES Budget Allocation for Bridging Document

SERVICES DURING

DESIGN DEVELOPMENT

AND CONSTRUCTION

DOCUMENT

PREPARATION BY THE

SELECTED DB TEAM/ENTITY

SERVICES DURING

CONSTRUCTION AND

PROJECT CLOSE OUT
The fee information presented above represent a best estimate of the Transtech effort anticipated to carry this project per the scope of services provided in this Task Order.

Actual hours and dollar amounts may flex and re-allocated within various tasks as needed. Staff Classifications,
Hourly Rates and Hours are average and may vary within the established total budget.

Billig is based on actual hours spent.
359
Task Order Proposal 7
Vineyard DB (Design-Build) Parking Structure
If you have any questions or need additional information, please contact us.

Respectfully submitted.

Ali Cayir
Ali Cayir, PE
Principal
E: [email protected]
C: 714-883-8677
O: 909-595-8599
360
Department: Management Services
Prepared By: Brandi Belmontes
Staff Member Presenting: Darlene M. Sanchez,
Assistant City Manager
Reviewed By: Jordan T Villwock
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 15
SUBJECT: DESIGNATION OF VOTING DELEGATES FOR THE LEAGUE OF CALIFORNIA CITIES

ANNUAL CONFERENCE GENERAL ASSEMBLY MEETING

CITY OF ONTARIO
Agenda Report
August 20, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council designate Mayor pro Tem Debra Porada as the City's voting delegate and Mayor Paul Leon as an alternate for the League of California Cities Annual Conference General Assembly scheduled for October 16 through October 18, 2024.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Pursue City's Goals and Objectives by Working with Other Governmental Agencies FISCAL IMPACT: There is no direct fiscal impact by taking this action; however, representation and participation in the League of California Cities upcoming business meeting will help establish League policy on matters that may affect the City's finances.

BACKGROUND & ANALYSIS: The League has scheduled its General Assembly Meeting for October 16 through October 18, 2024, during the Annual League of California Cities Conference & Expo in Long Beach, California. At that meeting, the League membership will consider and take action on resolutions that establish Cal Cities policy.

Consistent with Cal Cities bylaws, a city's voting delegate and alternate must be designated by City Council action.
361
1400 K Street, Suite 400, Sacramento, CA 95814 • 916.658.8200 • calcities.org

DATE: Wednesday, July 10, 2024
TO: Mayors, Council Members, City Clerks, and City Managers RE: DESIGNATION OF VOTING DELEGATES AND ALTERNATES
League of California Cities Annual Conference and Expo, Oct. 16-18, 2024 Long Beach Convention Center
Every year, the League of California Cities convenes a member-driven General Assembly at the Cal Cities Annual Conference and Expo. The General Assembly is an important opportunity where city officials can directly participate in the development of Cal Cities policy.

Taking place on Oct. 18, the General Assembly is comprised of voting delegates appointed by each member city; every city has one voting delegate. Your appointed voting delegate plays an important role during the General Assembly by representing your city and voting on resolutions.

To cast a vote during the General Assembly, your city must designate a voting delegate and up to two alternate voting delegates, one of whom may vote if the designated voting delegate is unable to serve in that capacity. Voting delegates may either be an elected or appointed official.

Action by Council Required. Consistent with Cal Cities bylaws, a city’s voting delegate and up to two alternates must be designated by the city council. Please note that designating the voting delegate and alternates must be done by city council action and cannot be accomplished by individual action of the mayor or city manager alone.

Following council action, please submit your city’s delegates through the online submission portal by Wed., Sept. 25. When completing the Voting Delegate submission form, you will be asked to attest that council action was taken. You will need to be signed in to your My Cal Cities account when submitting the form.

Submitting your voting delegate form by the deadline will allow us time to establish voting delegate/alternate records prior to the conference and provide pre-conference communications with voting delegates.

Conference Registration Required. The voting delegate and alternates must be registered to attend the conference. They need not register for the entire conference; they may register for Friday only. Conference registration is open on the Cal Cities website.

Council Action Advised by September 25, 2024
362
For a city to cast a vote, one voter must be present at the General Assembly and in possession of the voting delegate card and voting tool. Voting delegates and alternates need to pick up their conference badges before signing in and picking up the voting delegate card at the voting delegate desk. This will enable them to receive the special sticker on their name badges that will admit the voting delegate into the voting area during the General Assembly.

Please view Cal Cities’ event and meeting policy in advance of the conference.

Transferring Voting Card to Non-Designated Individuals Not Allowed. The voting delegate card may be transferred freely between the voting delegate and alternates, but only between the voting delegate and alternates. If the voting delegate and alternates find themselves unable to attend the General Assembly, they may not transfer the voting card to another city official.

Seating Protocol during General Assembly. At the General Assembly, individuals with a voting card will sit in a designated area. Admission to the voting area will be limited to the individual in possession of the voting card and with a special sticker on their name badge identifying them as a voting delegate.

The voting delegate desk, located in the conference registration area of the Long Beach Convention Center in Long Beach, will be open at the following times: Wednesday, Oct. 16, 8:00 a.m.-6:00 p.m. and Thursday, Oct. 17, 7:30 a.m.-4:00 p.m. On Friday, Oct. 18, the voting delegate desk will be open at the General Assembly, starting at 7:30 a.m., but will be closed during roll calls and voting.

The voting procedures that will be used at the conference are attached to this memo.

Please share these procedures and this memo with your council and especially with the individuals that your council designates as your city’s voting delegate and alternates.

Once again, thank you for submitting your voting delegate and alternates by Wednesday, Sept. 25. If you have questions, please contact Zach Seals at [email protected].

Attachments:
• General Assembly Voting Guidelines
• Information Sheet: Cal Cities Resolutions and the General Assembly 363
1400 K Street, Suite 400, Sacramento, CA 95814 • 916.658.8200 • calcities.org General Assembly Voting Guidelines

1. One City One Vote. Each member city has a right to cast one vote on matters pertaining to Cal Cities policy.

2. Designating a City Voting Representative. Prior to the Cal Cities Annual Conference and Expo, each city council may designate a voting delegate and up to two alternates; these individuals are identified on the voting delegate form provided to the Cal Cities Credentials Committee.

3. Registering with the Credentials Committee. The voting delegate, or alternates, may pick up the city's voting card at the voting delegate desk in the conference registration area. Voting delegates and alternates must sign in at the voting delegate desk. Here they will receive a special sticker on their name badge and thus be admitted to the voting area at the General Assembly.

4. Signing Initiated Resolution Petitions. Only those individuals who are voting delegates (or alternates), and who have picked up their city’s voting card by providing a signature to the credentials committee at the voting delegate desk, may sign petitions to initiate a resolution.

5. Voting. To cast the city's vote, a city official must have in their possession the city's voting card and voting tool; and be registered with the credentials committee. The voting card may be transferred freely between the voting delegate and alternates but may not be transferred to another city official who is neither a voting delegate nor alternate.

6. Voting Area at General Assembly. At the General Assembly, individuals with a voting card will sit in a designated area. Admission to the voting area will be limited to the individual in possession of the voting card and with a special sticker on their name badge identifying them as a voting delegate.

7. Resolving Disputes. In case of dispute, the credentials committee will determine the validity of signatures on petitioned resolutions and the right of a city official to vote at the General Assembly.
364
Sixty days before the
Annual Conference
and Expo, Cal Cities
members may submit
policy proposals on
issues of importance
to cities. The resolution must
have the concurrence of at least
five additional member cities or
individual members.

How it works: Cal Cities
Resolutions and the General Assembly
General Assembly
General Resolutions Policy Committees
Developing League of California Cities policy is a dynamic process that engages a wide range of members to ensure Cal Cities represents cities with one voice. These policies directly guide Cal Cities’ advocacy to promote local decision-making, and lobby against statewide policies that erode local control.

The resolutions process and General Assembly is one way that city officials can directly participate in the development of Cal Cities policy. If a resolution is approved at the General Assembly, it becomes official Cal Cities policy. Here’s how resolutions and the General Assembly work.

The petitioned
resolution is an
alternate method
to introduce policy
proposals during
the annual conference. The
petition must be signed by
voting delegates from 10% of
member cities, and submitted to
the Cal Cities President at least
24 hours before the beginning
of the General Assembly.

Petitioned Resolutions
The Cal Cities
President assigns
general resolutions
to policy committees
where members
review, debate, and recommend
positions for each policy proposal.

Recommendations are forwarded
to the Resolutions Committee.

Who’s who
The Resolutions Committee
includes representatives
from each Cal Cities
diversity caucus, regional
division, municipal
department, and policy
committee, as well as
individuals appointed by
the Cal Cities president.

Voting delegates
are appointed by each
member city; every city
has one voting delegate.

The General Assembly is a
meeting of the collective
body of all voting
delegates —one from
every member city.

Seven policy committees
meet throughout the year
to review and recommend
positions to take on bills
and regulatory proposals.

Policy committees include
members from each Cal
Cities diversity caucus,
regional division, and
municipal department,
as well as individuals
appointed by the Cal
Cities president.

During the General Assembly, voting delegates
debate and consider general and petitioned
resolutions forwarded by the Resolutions
Committee. Potential Cal Cities bylaws
amendments are also considered at this meeting.

Cal Cities policy
development is a memberinformed process,
grounded in the voices and
experiences of city officials
throughout the state.

For more information visit www.calcities.org/general-assembly Prior to the Annual Conference and Expo
Resolutions Committee
The Resolutions
Committee considers
all resolutions. General
Resolutions approved1 by
either a policy committee
or the Resolutions Committee are next
considered by the General Assembly.

General resolutions not approved, or
referred for further study by both a
policy committee and the Resolutions
Committee do not go to the General
Assembly. All Petitioned Resolutions
are considered by the General
Assembly, unless disqualified.2
During the Annual Conference and Expo
1 The Resolution Committee can amend a general resolution prior to sending it to the General Assembly. 2 Petitioned Resolutions may be disqualified by the Resolutions Committee according to Cal Cities Bylaws Article VI. Sec. 5(f). 365
Department: Utilities
Prepared By: Andy Marquez
Staff Member Presenting: Scott Burton, Utilities
General Manager
Reviewed By: Dennice Raygoza, Albert G
Gastelum, Michael Sigsbee
Approved By:

SOLUTIONS

CITY OF ONTARIO
Agenda Report
August 20, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve and authorize the sole source purchase of new water meters and repair parts for a total not-to-exceed amount of $2,900,000 from HydroPro Solutions of Ontario, California, and authorize the City Manager or designee to execute a Goods and Equipment Agreement.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Pursue City's Goals and Objectives by Working with Other Governmental Agencies FISCAL IMPACT: The actual cost of meters to be purchased will be determined based on unit pricing for the various sizes of meters and actual meter repair, replacement, and new installation needs. The Fiscal Year 2024-25 Water Operating and Capital Improvement Program Budgets include $2,900,000 for the purchase of new and replacement meters and repair parts.

Development projects pay for new meter installations while the cost of meter testing, repair, and replacement is included in the rates the City bills for water service. There is no impact on the General Fund.

BACKGROUND & ANALYSIS: There are over 44,000 water meters citywide, which serve residential, industrial, and commercial businesses as well as landscape areas; this includes recycled water connections. The accuracy of meters has a direct relationship to accounting and billing for water service. To maintain accuracy and functionality, meters need to be replaced approximately every twelve years, and they are repaired as needed. Meter repair and replacements ensure accurate meter reads and accurate billing to our residents and customers. In Fiscal Year 2023-24, approximately 2,900 residential meters were replaced, and 750 new meters were installed in the Ontario Ranch area.

In the Fiscal Year 2024-25, approximately 2,700 meters are planned to be installed to replace 366
existing meters as part of the annual meter replacement program, and approximately 700 new meters are planned to be installed for development projects in the Old Model Colony and Ontario Ranch.

The recommended Master Meter brand meters are set up for Advanced Meter Infrastructure (AMI), which will allow Customer Service Staff the capabilities to connect remotely and have access to meter data in real-time without drive-by meter readings. This real-time data retrieval process will assist OMUC in the effort to maintain up-to-date meter data, identify water waste, and aid in the early detection process of potential leaks or breaks in consumer onsite lines. AMI Antenna tower construction has been ongoing to expand remote read coverage. Phase I included retrofit of one antenna and installation of 2 antennas, and construction was completed in July 2024. Phase II will include the construction of two additional antennas and is anticipated to be completed in June 2025.

The City currently utilizes these meters to provide the remote collection of water use data in realtime; approximately sixty percent of the City’s remote read meters now have this AMI technology.

The purchase of these Master Meter brand meters can only be made directly through the manufacturer. Section 2-6.11 (b) (2) of the Ontario Municipal Code states that sole source purchases are authorized if there is only one procurement source; HydroPro Solutions is the exclusive distributor in California for these water meters and has uniform pricing for water agencies utilizing its products. Additionally, pricing is competitive with industry type products. HydroPro's local presence offers several advantages to the City, ensuring immediate and effective responses to various needs. HydroPro's quick response for repairs, ongoing staff training and updates, efficient order fulfillment, and troubleshooting support has added value in maintaining and improving the City's meter reading infrastructure and operations. Staff has reviewed pricing and recommends this sole-source award to HydroPro Solutions.
367
C I T y 0 F ONTARIO
303 EAST B STREET I ONTARIO, CALIFORNIA 91764 (909) 395-2000 FAX (909) 395-2070 OntarioCA.gov PAUL S. LEON
MAYOR

DEBRA PORADA

MAYOR PRO TEM
ALAN D. WAPNER
JIM W. BOWMAN

RUBEN VALENCIA

COUNCIL MEMBERS

SHEILA MAUTZ

CITY CLERK
JAMES R. MILHISER

TREASURER

SCOTT OCHOA

CITY MANAGER

CITY OF ONTARIO

GOODS AND EQUIPMENT PURCHASE AGREEMENT
This Goods and Equipment Purchase Agreement ("Agreement") is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East "B" Street, Ontario, California 91764-4196, County of San Bernardino, State of California ("City"), and HYDROPRO SOLUTION, a LLC with its principal place of business at 1180 E Francis St Suite F, Ontario, CA 91761 ("Supplier"). City and Supplier are sometimes individ1.Jally referred to as "Party" and collectively as "Parties" in this Agreement.

Section 1. DEFINITIONS.

A. "Goods" means all machinery, equipment, supplies, items, parts, materials, labor or other services, including design, engineering and installation services, provided by Supplier as specified in Exhibit "A," attached hereto and incorporated herein by reference.

B. "Delivery Date(s)" means that date or dates upon which the Goods is to be delivered to City, ready for approval, testing and/or use as specified in Exhibit "B." Section 2. MATERIALS AND WORKMANSHIP.

When Exhibit "A" specifies machinery, equipment or material by manufacturer, model or trade name, no substitution will be made without City's written approval. Machinery, equipment or material installed in the Goods without the approval required by this Section 2 will be deemed to be defective material for purposes of Section 4. Where machinery, equipment or materials are referred to in Exhibit "A" as equal to any particular standard, City will decide the question of equality. When requested by City, Supplier will furnish City with the name of the manufacturer, the performance capabilities and other pertinent information necessary to properly determine the quality and suitability of any machines, equipment and material to be incorporated in the Goods.

Material samples will be submitted at City's request.
(BB&K 2023) Goods and Equipment Agreement
368
369
370
371
372
373
374
375
376
377
378
379
Exhibit A
Goods Specifications
tfVdroPro Solutlon& • Wast
1180
Ontario
E. Francia Streat, Suite F
, CA 917fl1
Phone (11.51) 370-4C43
To: City of Ontario
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(BB&K 2023) Exhibit A-1 Goods and Equipment Agreement
380
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Goods and Equipment Agreement
382
Department: Public Works
Prepared By: Adrian Escamilla
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Andrea Ampig, Bonnie Tam
Approved By:

ALARM COMPANY FOR THE ONTARIO POLICE DEPARTMENT FIRE ALARM NOTIFICATION SYSTEM AND A CONSTRUCTION CONTRACT WITH WAKECO, INC.

FOR THE ONTARIO POLICE DEPARTMENT REAL TIME INFORMATION CENTER &

TENANT IMPROVEMENT PROJECT

CITY OF ONTARIO
Agenda Report
August 20, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council take the following actions:

A. Authorize the City Manager, or his designee, to execute Amendment No. 9 to the Maintenance Services Agreement with Bay Alarm Company, of Concord, California, for the Ontario Police Department (OPD) Fire Alarm Notification System installation in an amount of $422,629 and a 10% contingency of $42,262 for a total not-to-exceed contract amount of $1,487,163, and
B. Reject Optima RPM, Inc.’s protest against Wakeco, Inc. for D&C23-014 OPD Real Time Information Center (RTIC) and Tenant Improvement (TI) Project; and C. Authorize the City Manager, or his designee, to execute Construction Contract No. D&C23-014 with Wakeco, Inc., of Temecula, California, for the OPD RTIC and TI Project in the amount of $3,611,000 and authorize a 10% contingency of $361,100 for a new contract value of $3,972,100 to address any unforeseen issues that arise during construction.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Maintain the Current High Level of Public Safety
FISCAL IMPACT: The proposed Amendment No. 9 to Bay Alarm Company increases the contract amount by $422,629 plus a 10% contingency of $42,262 for a total not-to-exceed contract amount of $1,487,163. The Fiscal Year 2024-25 includes appropriations in the Facilities Maintenance Fund for the OPD Fire Alarm Notification System installation.

The proposed Construction Contract with Wakeco, Inc. for the OPD RTIC and TI project is in an 383
amount of $3,611,000 plus a 10% contingency of $361,100 for a total not-to-exceed contract amount of $3,972,100. The Fiscal Year 2024-25 Adopted Budget includes partial appropriations for this project in the Capital Projects-Measure Q Fund. If approved, additional appropriations will be included in future quarterly budget updates to the City Council for approval.

BACKGROUND & ANALYSIS: The Ontario Police Department is set to significantly enhance its operational capabilities with the remodeling of its RTIC. This facility will serve as a central hub for the City of Ontario, integrating various streams of data, including video surveillance, audio feeds, and real-time information from multiple sources. By consolidating these resources into one centralized location, the RTIC will allow OPD to monitor and respond to incidents more efficiently and effectively. Additional key aspects of the project include repairing existing conditions to improve accessibility, such as enhancing assessable parking, correcting the concrete walkway leading to the department’s entrance, and updating general building amenities and signage. All of the improvements are designed to comply with the 2019 Building Code and the 2010 ADA Guidelines, ensuring that the facility meets the highest standards of accessibility and safety.

On June 14, 2024, Staff solicited bids for the Bid No. 1810 OPD RTIC and TI Improvements Project.

Staff received seven (7) construction bids ranging from $3,611,000 to $5,148,000. All the bids received are listed below:

Vendor Location Amount
Wakeco, Inc. Temecula, CA $3,611,000
Optima RPM, Inc. Irvine, CA $3,688,041
Royal Construction Corp Arcadia, CA $3,898,000
Dalke & Sons Construction, Inc. Riverside, CA $3,988,680 R.J. Daum Construction
Company
Garden Grove, CA $4,369,331
BCM Group, Inc. Rancho Cucamonga, CA $4,950,000
PCN3, Inc. Los Alamitos, CA $5,148,000
Wakeco, Inc., of Temecula, California, was the apparent lowest responsible bidder. On July 25, 2024, the City received a protest letter from Optima RPM, Inc. stating that Wakeco, Inc. submitted a nonresponsive bid because they failed to provide a list of completed safety construction projects under the minimum qualification list included in the bid documents. The City responded to Optima RPM, Inc. in a letter dated July 30, 2024, stating that the bid protest is meritless because Wakeco, Inc. did not constitute as an irresponsible bidder and that all irregularities are waived.

Wakeco, Inc., of Temecula, California, submitted the lowest responsible bid that met all the required specifications with a cost of $3,611,000. Based on credentials, pricing, and favorable reference checks, Staff recommends awarding Construction Contract No. D&C23-014 to Wakeco, Inc. The project’s estimated completion date is November 2025.

As part of the broader improvements to the OPD facilities, the recently completed Gym Expansion project revealed that the existing fire alarm notification system did not meet current Fire Code 384
Regulations. As Wakeco Inc. embarks on the construction of the RTIC and the associated T.I. improvement areas, Bay Alarm, a trusted provider of fire protection services, will be responsible for the installation of the appropriate fire alarm devices throughout the department. These devices will be selected and installed based on the specific occupancy type of each area, ensuring that the entire facility meets Fire Code Regulations. At the request of the City Building Department, both projects will run concurrently to adhere to City inspection services to ensure this project complies with all applicable municipal and state code requirements.

This comprehensive approach to safety will safeguard both the personnel and the critical infrastructure of the OPD, including the newly renovated RTIC. Together, these initiatives reflect the OPD's commitment to innovation, safety, and operational excellence. 385
46700.00100\33287662.1

Page 1 of 3 ends

BB&K 2020
AMENDMENT NO. 9 TO THE MAINTENANCE SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO AND

BAY ALARM COMPANY

1. Parties and Date.

This Amendment No. 9 to the Agreement (as defined herein) is made and entered into as of ____________, by and between the City of Ontario (“City”) and Bay Alarm Company, a Corporation (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties.”

2. Recitals.

2.1 Agreement. The City and Contractor have entered into an agreement entitled “Maintenance Service Agreement” dated July 1, 2020 (“Agreement”).

2.2 Amendment Purpose. The City and Contractor desire to amend the Agreement to include the following work in the locations listed on Exhibit “A”. The scope of work includes the supply and install of wiring, devices, and program the system to be monitored by the Bay Alarm supervising station for an amount not-to-exceed Four Hundred Twenty-Two Thousand Six Hundred Twenty-Nine Dollars ($422,629). The Parties have heretofore entered into that Amendment No. 1 dated April 6, 2021, Amendment No. 2 dated November 15, 2021, Amendment No. 3 dated June 20, 2022, Amendment No. 4 dated November 15, 2022, Amendment No. 5 dated February 21, 2023, Amendment No. 6 dated July 1,2023, Amendment No. 7 dated October 17, 2023, and Amendment No. 8. Dated June 6, 2024.

2.3 Amendment Authority. This Amendment No. 9 is authorized pursuant to Section

3.5.18 of the Agreement.

3. Terms.

3.1 Amendment. Section 3.1.1 and 3.3.1 of the Agreement is hereby amended in its entirety to read as follows:
“3.1.1 General Scope of Service. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional Security and Fire Alann Monitoring services necessary for the Project ("Services”). The Services are 386
46700.00100\33287662.1

Page 2 of 3 ends

BB&K 2020
more particularly described in Exhibit "A" attached hereto and Incorporated herein by reference. All Services shall be subject to. and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.” “3.3.1 Compensation. Contractor shall receive compensation, including authorize reimbursement, for all services rendered under this Agreement as described throughout this Agreement, including Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed One Million Four Hundred Forty-Four Thousand Nine Hundred and One Dollars ($1,444,901) (“Total Compensation”) without the City Manager’s written approval. Extra Work may be authorized, as described under task list Exhibit “A”, and if authorized, will be compensated at the rates and manner set forth in this Agreement.” Exhibit “A” is hereby revised adding Attachment A and incorporated herein by reference.

3.2 Continuing Effect of Agreement. Except as amended by this Amendment No. 9, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 9. From and after the date of this Amendment No. 9, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 9.

3.4 Severability. If any portion of this Amendment No. 9 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

Page 3 of 3 ends

BB&K 2020
SIGNATURE PAGE FOR AMENDMENT NO. 9 TO MAINTENANCE SERVICES

AGREEMENT BETWEEN THE CITY OF ONTARIO

AND BAY ALARM COMPANY
IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 9 as of the day and year first above written.

CITY OF ONTARIO BAY ALARM COMPANY
By:

Its:

Printed Name:

By:

Its:

Printed Name:
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
Approved By:

Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:

City Clerk
388
CA Licenses: CCL 880138, ACO 28, CSFM Type 1 License, A-04 AZ Licenses: ROC 326152 CR-67, ROC 326153 CR-16
WA Licenses: LEECL BAYALAC876KF, CCL BAYALAC878KH
Version 1.1
5130 Commercial Circle
Concord, CA 94520
WWW.BAYALARM.COM
Sales: 1-800-610-1000
Service: 1-800-470-1000
6/19/2024
Adrian Escamilia
2500 S Archibald Ave
Ontario CA 91761
Dear Adrian,
Thank you for the opportunity to submit this Fire Alarm System proposal for your review and approval. The proposed System is based upon the applicable National Fire Protection Association (NFPA) and local codes and standards. I’ve outlined my recommendation for your installation and service investment into the following sections. • Scope of Work Overview
• Equipment Requirements
• Customer Responsibility
• Financial Terms and Conditions
• Estimated Time Considerations
Bay Alarm has been protecting businesses for over 75 years. We take pride in partnering with our customers to protect their people, property, and businesses. Providing you with excellent service is my top priority – please let me know if I can answer any of your questions.

Sincerely,
Jacqueline Donahue
Government Representative- Enterprise Sales Division
Enterprise Sales Team
(714)337-6765
[email protected]
Attachment "A"
389
CA Licenses: CCL 880138, ACO 28, CSFM Type 1 License, A-04 AZ Licenses: ROC 326152 CR-67, ROC 326153 CR-16
WA Licenses: LEECL BAYALAC876KF, CCL BAYALAC878KH
Version 1.1
5130 Commercial Circle
Concord, CA 94520
WWW.BAYALARM.COM
Sales: 1-800-610-1000
Service: 1-800-470-1000

SCOPE OF WORK OVERVIEW
Intent of System
Bay Alarm proposes to prepare fire alarm shop drawings for City of Ontario review and approval for an existing fire alarm system located at 2500 S. Archibald Ave Ontario CA 91761. This is an existing 2 story building undergoing tenant improvements. The tenant of the building will be the Ontario Police Department. The building information, occupancy type, and occupancy load is as follows:

Construction Type: Occupancy Type: Occupant Load: Sq. Footage:

III-B (Fully Sprinklered) A, B, I
The intent of this system is to:

1. Provide annunciation to the fire alarm system for the Police Department Installation Notes
Bay Alarm will install the wiring, devices, and program the system to be monitored by our UL Listed Supervising Station. All work is to be performed Mon-Fri 8a-5p, unless specifically stated otherwise. After the system has received the final sign off by the local AHJ (Authority Having Jurisdiction), Bay Alarm will provide ongoing monitoring and NFPA 72 testing per the Service Agreement. Monthly billing will commence and is due as soon as the system is being monitored by our Central Station, that is typically prior to final inspection.

Wiring from the control panel to the field devices and appliances will be concealed where possible (without opening walls, painting, or patching). If access to open framing, above T-bar ceiling or other easily accessible spaces are not an option, exposed red wiring may be required.

Testing will be required before and during the final inspection; this includes sounding the Notification Appliances which will disrupt standard business operation. Bay Alarm will provide notice to the owners, but all testing will be performed during normal business hours. If after hour or weekend testing is required, this needs to be pre-arranged and is subject to additional charges.

Bay Alarm will remove the old fire alarm devices. Conduit will be surface mounted and not painted. Wire mold is not included. Bay Alarm to connect to duct smoke detectors furnished and installed by others. The units shall be powered by others (Electrical Contractor). If required by local AHJ, the units shall be wired for global shut down.

Bay Alarm will provide monitoring of any installed units. If units are located on the roof, owner or owner’s contractor to provide roof penetrations for cabling access. Bay Alarm does not include roof penetrations in its scope of work unless specifically noted.

FIRE ALARM SYSTEM PROPOSAL
390
CA Licenses: CCL 880138, ACO 28, CSFM Type 1 License, A-04 AZ Licenses: ROC 326152 CR-67, ROC 326153 CR-16
WA Licenses: LEECL BAYALAC876KF, CCL BAYALAC878KH
Version 1.1
5130 Commercial Circle
Concord, CA 94520
WWW.BAYALARM.COM
Sales: 1-800-610-1000
Service: 1-800-470-1000
Access to all areas needing equipment and/or wiring is to be the responsibility of the contracted party. Any issues or time lost due to accessibility issues are ground for additional labor charges and might delay original project timelines.

Unless specifically noted in the agreement, charges for testing are calculated using normal business hour timeframes (M-F, 8a-5p). If the contracted party wishes to change this, after hour charges will apply.

BAY ALARM TO FURNISH AND INSTALLTHE FOLLOWING EQUIPMENT

DESCRIPTION QUANTITY

BAY ALARM EQUIPMENT
DUALCOM LTE FIRE ALARM RADIO 1
SILENT KNIGHT INTELLIKNIGHT 6 AM POWER MODULE 3
SYSTEM SENSOR STROBE 2 WIRE OUTDOOR WHITE 10
SYSTEM SENSOR CEILING HORN STROBE 2 WIRE WHITE 108
SYSTEM SENOR CEILING MOUNT OUTDOOR STROBE, WHITE 3
SYSTEM SENSOR CEILING STROBE 2 WIRE WHITE 122
SILENT KNIGHT INPUT MONITOR MODULE 34
SILENT KNIGHT 2 INPUT MONITOR MODULE 1
SILENT KNIGHT INPUT MINI - MONITOR MODULE 11
SILENT KNIGHT RELAY MODULE 11
FIRE ALARM LOCK OUT KIT 3
DOCUMENTATION CABINET 1
SIGN FACU INSIDE 8X10 1
SILENT KNIGHT HEAT DETECTOR W/BASE 1
SILENT KNIGHT SMOKE DETECTOR W/BASE 4
SURFACE MOUNT BACK BOX IN/OUT FOR BG-12 2
SILENT KNIGHT PULL STATION 24
SILENT KNIGHT FAULT ISOLATER MODULE 24
POWER SONIC 12V 7AMP BATTERY 8
PLAN TRACE SCAN AND REDRAW BUILDING 2
PLAN CHARGE – SHOP DESIGN /CAD SERVICES 1
391
CA Licenses: CCL 880138, ACO 28, CSFM Type 1 License, A-04 AZ Licenses: ROC 326152 CR-67, ROC 326153 CR-16
WA Licenses: LEECL BAYALAC876KF, CCL BAYALAC878KH
Version 1.1
5130 Commercial Circle
Concord, CA 94520
WWW.BAYALARM.COM
Sales: 1-800-610-1000
Service: 1-800-470-1000
BAY ALARM EQUIPMENT CONT.

AHJ FIRE FINAL 1
18/2 WIRE 1000 FT REEL BLACK 2
18/4 FIRE WIRE 1000 SPOOL 6
14/2 FIRE WIRE 100 FT BOX 10
LIFT SCISSOR (19-26) MONTHLY 2
CONDUIT PER 50 FEET 6
MISC. MATERIAL 361

BAY ALARM TO CONNECT TO EQUIPMENT FURNISHED AND INSTALLED BY OTHERS

DESCRIPTION QUANTITY
SILENT KNIGHT ADDRESSABLE FIRE ALARM CONTROL PANEL 1
WATER FLOW SWITCHES 4
BUTTERFLY TAMPER SWITCH 3
PIVS 3
DUCT DETECTORS 18
OS&Y TAMPER SWITCH 2
392
CA Licenses: CCL 880138, ACO 28, CSFM Type 1 License, A-04 AZ Licenses: ROC 326152 CR-67, ROC 326153 CR-16
WA Licenses: LEECL BAYALAC876KF, CCL BAYALAC878KH
Version 1.1
5130 Commercial Circle
Concord, CA 94520
WWW.BAYALARM.COM
Sales: 1-800-610-1000
Service: 1-800-470-1000

CUSTOMER RESPONSIBILITY
You agree to provide access to the work site and to perform and bear the cost of any work necessary to afford access and to close up after Bay Alarm has performed its Scope of Work. • Customer to supply a dedicated 120v circuit run in conduit from service panel to any Fire Alarm Control Units and any Remote Power Supply Units in the field. All circuits must be dedicated to the fire alarm system and also must have a Red Breaker.
• Customer to provide dedicated circuit in IDF room
• Fan, dampers, HVAC controls for interfaces should be considered an extra unless specifically mentioned and outlined above. (Provided and installed by Mechanical Contractor). • Troubleshooting of problems associated with installation activities by others will be billed at current billing rate.
• Changes to plans after submittal to the Architect that require reengineering of system, will result in additional charges.
• All required CAD files are to be provided and shall be clean, free of excessive details and 1/8” scale. All XREFS and fonts must be provided. If multiple XREFS are used per drawing, all XREFS must be bound to a single drawing. If files are not clean, additional charges may be required for drawing clean up. • Electrical contractor to provide all necessary conduits for devices required. • This quotation is based on our best assessment/understanding of the needs for this project. Additional items, devices, controls or services, which may be required by others or to comply with codes, should be considered an extra unless specifically agreed to in writing. • This quotation includes only those devices and services listed above. • All warranty activity will be between the hours of 8:00am – 5:00pm Monday through Friday (except Holidays) only.
• Bay Alarm has no control over other trades and will not be responsible for any delays in construction or liquidated damages.
393
CA Licenses: CCL 880138, ACO 28, CSFM Type 1 License, A-04 AZ Licenses: ROC 326152 CR-67, ROC 326153 CR-16
WA Licenses: LEECL BAYALAC876KF, CCL BAYALAC878KH
Version 1.1
5130 Commercial Circle
Concord, CA 94520
WWW.BAYALARM.COM
Sales: 1-800-610-1000
Service: 1-800-470-1000

FINANCIAL TERMS AND CONDITIONS
It is the policy of Bay Alarm Company on all jobs in excess of $5,000 to file a 20-Day Notice intent to Lien. A Mechanic’s Lien will be filed on the property if payment is not received at the time of final inspection. Upon receipt of funds, the appropriated lien release will be issued.

Purchase Price: $415,000.00
Due with Contract (25%)
Deposit must be received prior to the commencement of
any work or ordering of any material/equipment
$103,750.00
Progress Billing (25%)
To be paid after the completion of 25% of work
Rough Completion, including but not limited to wiring,
predetermined devices, plans/permits, and all conduit stated by contract
$103,750.00
Progress Billing (25%)
To be paid after the completion of 50% of work
Rough Completion, including but not limited to wiring,
predetermined devices, plans/permits, and all conduit stated by contract
$103,750.00
Due upon Final Inspection and sign-off by local AHJ
(25%):
$103,750.00
Estimated Sales Tax on Fixtures to be billed separately to customer:
$7,628.54
Any AHJ permit or submittal fees are not included and will be billed separately.

Bay Alarm will enter into a separate agreement to provide:

Additional NFPA 72 Testing & Inspections
Billed Quarterly in Advance
$210.00/Month
Full Service on Equipment due to Normal Wear and
Tear Billed Quarterly in Advance
$830.00/Month
TOTAL MONTHLY COST $1,040.00/Month
394
CA Licenses: CCL 880138, ACO 28, CSFM Type 1 License, A-04 AZ Licenses: ROC 326152 CR-67, ROC 326153 CR-16
WA Licenses: LEECL BAYALAC876KF, CCL BAYALAC878KH
Version 1.1
5130 Commercial Circle
Concord, CA 94520
WWW.BAYALARM.COM
Sales: 1-800-610-1000
Service: 1-800-470-1000

ESTIMATED TIME CONSIDERATIONS
Contracting Administration & Approval 10 Days
Fire Alarm Shop Drawing Production / CAD Conversion 60 Days Authority Having Jurisdiction Plan Check / Permit Process 60 Days Installation Scheduling (on approved plan check) 10 Days Installation of System TBD
Authority Having Jurisdiction Final Inspection 10 Days
Bay Alarm to retransmit fire alarm condition to the fire department having jurisdiction.

Customer understands and agrees that any additional protection required by the fire department will be charged to customer as an additional expense.

THANK YOU
This quotation is valid for 60 days from the date of presentation or as mutually extended by both parties.

Upon acceptance of this proposal, Bay Alarm will send over a formal contract for signature. 395
D&C 23-014 OPD RTIC & T.I. Improvements -1- SECTION 00500 – CONTRACT FOR

CONSTRUCTION
SECTION 00500 – CONTRACT FOR CONSTRUCTION
This Contract for Construction (“Contract”), No. D&C3-014 OPD RTIC & TI Improvements is made and entered as of ____________, by and between City of Ontario, with its principal place of business at 303 East “B” Street, Ontario, CA 91764, sometimes hereinafter called the “City” and Wakeco, Inc. sometimes hereinafter called “Contractor.” WITNESSETH: That the parties hereto have mutually covenanted and agreed, and by these presents do covenant and agree with each other as follows:

ARTICLE 1. SCOPE OF WORK.

The Contractor shall perform all Work within the time stipulated in the Contract, and shall provide all labor, materials, equipment, tools, utility services, and transportation to complete all of the Work required in strict compliance with the Contract Documents as specified in Article 5, below, for the following Project:

D&C 23-014 OPD RTIC & T.I. Improvements
Contractor is an independent contractor and not an agent of the City. The Contractor and its surety shall be liable to the City for any damages arising as a result of the Contractor’s failure to comply with this obligation.

ARTICLE 2. TIME FOR COMPLETION.

Time is of the essence in the performance of the Work. The Work shall be commenced on the date stated in the City’s Notice to Proceed. The Contractor shall complete all Work required by the Contract Documents within 365 calendar days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work.

ARTICLE 3. CONTRACT PRICE.

The City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of Three Million Six Hundred Eleven Thousand Dollars 396
D&C 23-014 OPD RTIC & T.I. Improvements -2- SECTION 00500 – CONTRACT FOR

CONSTRUCTION
($ 3,611,000). Payment shall be made as set forth in the General Conditions. The City will pay to Contractor compensation based upon the prices set forth in the Bid Schedule.

ARTICLE 4. LIQUIDATED DAMAGES.

Contractor acknowledges that the City will sustain actual damages for each and every Day completion of the Project is delayed beyond the Contract Time. Because of the nature of the Project, it would be impracticable or extremely difficult to determine the City’s actual damages.

Accordingly, in accordance with Government Code section 53069.85, it is agreed that the Contractor will pay the City the sum of $500.00 for each and every calendar day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the event this is not paid, the Contractor agrees the City may deduct that amount from any money due or that may become due the Contractor under the Contract. This Section does not exclude recovery of other damages specified in the Contract Documents. Liquidated damages may be deducted from progress payments due Contractor, Project retention or may be collected directly from Contractor, or from Contractor's surety. These provisions for liquidated damages shall not prevent the City, in case of Contractor's default, from terminating the Contractor.

Consistent with Public Contract Code Section 7102, Contractor will be compensated for damages incurred due to delays for which the City is responsible. The parties agree that determining Contractor’s exact delay damages is and will continue to be impracticable and extremely difficult.

As such, for each calendar day in excess of the Contract Time, the City shall pay to the Contractor $250.00 per day as Reverse Liquidated Damages and not as a penalty or forfeiture. Such amount shall constitute the only payment allowed for any City caused delays and shall necessarily include all overhead, all profits, all administrative costs, all bond costs, all labor, materials, equipment and rental costs and any other costs, expenses and fees incurred or sustained as a result of such delays. Notice of requests for delay damages and additional days shall be provided to the City within five (5) Days from the discovery of the circumstances giving rise to any delay or three (3) Days from the discovery of any latent or subsurface conditions giving rise to a delay.

ARTICLE 5. COMPONENT PARTS OF THE CONTRACT.

The “Contract Documents” include the following
Notice Inviting Bids
Instructions to Bidders
Bid Forms
Bid Acknowledgement
Bid Schedule
Bid Guarantee
Designation of Subcontractors
Information Required of Bidders
Non-Collusion Declaration Form
Iran Contracting Act Certification
Public Works Contractor DIR Registration Certification
Performance Bond
Payment (Labor and Materials) Bond
Contract for Construction
397
D&C 23-014 OPD RTIC & T.I. Improvements -3- SECTION 00500 – CONTRACT FOR

CONSTRUCTION
General Conditions
Special Conditions
Specifications
Addenda
Construction Plans and Drawings
Standard Specifications for Public Works Construction “Greenbook”, latest edition, Except Sections 1-9
Applicable Local Agency Standards and Specifications, as last revised Reference Specifications
Any other documents contained in or incorporated into the Contract The Contractor shall complete the Work in strict accordance with all of the Contract Documents.

All of the Contract Documents are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. In the event of conflict, the various Contract Documents will be given effect in the order set forth in the General Conditions. This Contract shall supersede any prior agreement of the parties.

ARTICLE 6. PROVISIONS REQUIRED BY LAW AND CONTRACTOR COMPLIANCE.

Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of applicable federal, state and local laws, rules and regulations, including, but not limited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Work.

ARTICLE 7. INDEMNIFICATION.

Contractor shall provide indemnification and defense as set forth in the General Conditions.

ARTICLE 8. PREVAILING WAGES.

Contractor shall be required to pay the prevailing rate of wages in accordance with the Labor Code which such rates shall be made available at the City’s Office or may be obtained online at http://www.dir.ca.gov and which must be posted at the job site.

ARTICLE 9. FALSE CLAIMS.

Contractor acknowledges that if a false claim is submitted to the City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that the False Claims Act, California Government Code sections 12650, et seq., provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include within their scope false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of the information. In the event the City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorneys’ fees. Contractor hereby acknowledges that the filing of a false claim may the Contractor to an administrative debarment proceeding wherein Contractor may be prevented from further bidding on public contracts for a period of up to five (5) years. 398
D&C 23-014 OPD RTIC & T.I. Improvements -4- SECTION 00500 – CONTRACT FOR

CONSTRUCTION
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
399
D&C 23-014 OPD RTIC & T.I. Improvements -5- SECTION 00500 – CONTRACT FOR

CONSTRUCTION
IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on the day and year above written.

CITY OF ONTARIO
By:

Scott Ochoa
City Manager
ATTEST:

By:

Sheila Mautz, City Clerk
APPROVED AS TO FORM:

By:

Best Best & Krieger LLP
City Attorney
Wakeco, Inc.

By:

Its:

Printed Name:
[DELETE THE FOLLOWING SIGNATURE
LINE IF NOT REQUIRED]
By:

Its:

Printed Name:
____________________________________
Contractor’s License Number and
Classification
____________________________________
DIR Registration Number
[IF CORPORATION, TWO SIGNATURES,

PRESIDENT OR VICE PRESIDENT AND

SECRETARY OR TREASURER
REQUIRED]

END OF CONTRACT
400
D&C 23-014 OPD RTIC & T.I. Improvements -6- SECTION 00500 – CONTRACT FOR

CONSTRUCTION
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature of Notary Public

OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT  Individual
 Corporate Officer
Title(s) Title or Type of Document
 Partner(s)  Limited
 General Number of Pages
 Attorney-In-Fact
 Trustee(s)
 Guardian/Conservator Date of Document
 Other:

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
401
D&C 23-014 OPD RTIC & T.I. Improvements -7- SECTION 00610 – BOND FORMS SECTION 00610 – BOND FORMS
Performance Bond
KNOW ALL PERSONS BY THESE PRESENTS:

THAT WHEREAS, the City of Ontario, with its principal place of business at 303 East “B” Street, Ontario, CA 91764, (hereinafter referred to as the “City”) has awarded to _________________________, (hereinafter referred to as the “Contractor”) an agreement for Contract No._________, (hereinafter referred to as the “Project”).

WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.

NOW, THEREFORE, we, ______________________, the undersigned Contractor and ________________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of ___________________________ DOLLARS, ($____________), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one (1) year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officials, officers, employees, and authorized volunteers, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.

As a part of the obligation secured hereby and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees including reasonable attorney’s fees, incurred by the City in enforcing such obligation.

The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under 402
D&C 23-014 OPD RTIC & T.I. Improvements -8- SECTION 00610 – BOND FORMS the Contract, law or equity, including, but not limited to, California Code of Civil Procedure Section 337.15.

Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option:
i. Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
ii. Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
iii. Permit the City to complete the Project in any manner consistent with California law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.

Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.

Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the City, when declaring the Contractor in default, notifies Surety of the City’s objection to Contractor’s further participation in the completion of the Project.

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
403
D&C 23-014 OPD RTIC & T.I. Improvements -9- SECTION 00610 – BOND FORMS IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20___.
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal)
Surety
By
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges is $_______________________________.
(The above must be filled in by corporate attorney.)

THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety) ___________________________________________ ___________________________________________
___________________________________________
(Name and Address of Agent or ___________________________________________ Representative for service of ___________________________________________ process in California, if different ___________________________________________ from above)
(Telephone number of Surety ___________________________________________ and Agent or Representative for
service of process in California)
404
D&C 23-014 OPD RTIC & T.I. Improvements -10- SECTION 00610 – BOND FORMS Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal. 405
D&C 23-014 OPD RTIC & T.I. Improvements -11- SECTION 00610 – BOND FORMS Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of Attorney to local representatives of the bonding company must also be attached. 406
D&C 23-014 OPD RTIC & T.I. Improvements -12- SECTION 00610 – BOND FORMS

END OF PERFORMANCE BOND
407
D&C 23-014 OPD RTIC & T.I. Improvements -13- SECTION 00610 – BOND FORMS Payment Bond (Labor and Materials).

KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Ontario , with its principal place of business at 303 East “B” Street, Ontario, CA 91764 (hereinafter designated as the “City”), by action taken or a resolution passed ___________________ , 20_____, has awarded to ________________________ hereinafter designated as the “Principal,” a contract for the work described as follows: Contract No.____________ (the “Project”); and
WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.

NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal sum of ______________ Dollars ($___________) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Civil Code Section 9100, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Revenue and Taxation Code Section 18663, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by the City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and investigation expenses.

This bond shall inure to the benefit of any of the persons named in Civil Code Section 9100 so as to give a right of action to such persons or their assigns in any suit brought upon this bond.

It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating 408
D&C 23-014 OPD RTIC & T.I. Improvements -14- SECTION 00610 – BOND FORMS to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or the City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Civil Code Section 9100, and has not been paid the full amount of his claim.

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract to be performed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of Contract, including but not limited to, the provisions of Sections 2819 and 2845 of the California Civil Code.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal)
Surety
By
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate) Title
409
D&C 23-014 OPD RTIC & T.I. Improvements -15- SECTION 00610 – BOND FORMS Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal. 410
D&C 23-014 OPD RTIC & T.I. Improvements -16- SECTION 00610 – BOND FORMS Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of-Attorney to local representatives of the bonding company must also be attached. 411
D&C 23-014 OPD RTIC & T.I. Improvements -17- SECTION 00610 – BOND FORMS

END OF PAYMENT BOND
412
D&C 23-014 OPD RTIC & T.I. Improvements -18- SECTION 00700 – GENERAL CONDITIONS SECTION 00700 – GENERAL CONDITIONS
ARTICLE 1 -TERMS; DEFINITIONS

1.1 Defined Terms
A. Whenever used in the Contract Documents and printed with initial capital letters, the terms listed below will have the meanings indicated which are applicable to both the singular and plural thereof. In addition to terms specifically defined below, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms.

1. Act of God – An earthquake of magnitude of 3.5 or higher on the Richter scale or a tidal wave.

2. Addenda -- Written or graphic instruments issued prior to the submission of Bids which clarify, correct, or change the Contract Documents.

3. Additional Work -- New or unforeseen work will be classified as “Additional Work” when the Engineer determines that it is not covered by the Contract.

4. Applicable Laws -- The laws, statutes, ordinances, rules, codes, regulations, permits, and licenses of any kind, issued by local, state or federal governmental authorities or private authorities with jurisdiction (including utilities), to the extent they apply to the Work.

5. Bid -- The offer or proposal of a Bidder submitted on the prescribed form setting forth the prices and other terms for the Work to be performed.

6. Bid Guarantee -- The Bid Bond, cashier’s check, or certified check to be made by the Bidder, which is to accompany the Bid as a guaranty of good faith to enter into a written contract.

7. Bidder -- The individual or entity who submits a Bid directly to the City.

8. Change Order (“CO”) -- A document that authorizes an addition, deletion, or revision in the Work or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Contract, in accordance with the Contract Documents and in the form contained in the Contract Documents.

9. Change Order Request (“COR”) -- A request made by the Contractor for an adjustment in the Contract Price and/or Contract Times as the result of a Contractor-claimed change to the Work.

10. City’s Representative – The City of Ontario, and acting through properly authorized agents, such as the Engineer or such other agents acting within the scope of the particular duties entrusted to them. Also sometimes referred to as the “City’s Representative” or “Representative” in the Contract Documents. The terms the City and Owner may be used interchangeably
413
D&C 23-014 OPD RTIC & T.I. Improvements -19- SECTION 00700 – GENERAL CONDITIONS

11. Claim -- A demand or assertion by the City or Contractor seeking an adjustment of Contract Price or Contract Times, or both, or other relief with respect to the terms of the Contract. A demand for money or services by a third party is not a Claim.

12. Contract -- The entire integrated written agreement between the City and Contractor concerning the Work. “Contract” may be used interchangeably with “Agreement” in the Contract Documents. The Contract supersedes prior negotiations, representations, or agreements, whether written or oral, and includes all Contract Documents.

13. Contract Documents -- The documents listed in Section 00 52 13, Article 5 of the Contract for Construction. Some documents provided by the City to the Bidders and Contractor, including but not limited to reports and drawings of subsurface and physical conditions are not Contract Documents.

14. Contract Price -- Amount to be paid by the City to the Contractor as full compensation for the performance of the Contract and completion of the Work, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs.

15. Contract Time -- The number of days or the dates stated in the Contract Documents to: achieve defined milestones, if any; and to complete the Work so that it is ready for final payment.

16. Contractor -- The individual or entity with which the City has contracted for performance of the Work.

1. Contractor’s Designated On-Site Representative -- The Contractor’s Designated On-Site Representative will be identified by the Contractor and shall not be changed without prior written consent of the City.

2. Critical Supply Shortage -- An unusual shortage in materials that is (a) supported by documented proof that Contractor made every effort to obtain such materials from all available sources; (b) such shortage is due to the fact that such materials are not physically available from single or multiple sources or could have been obtained only at exorbitant prices entirely inconsistent with current and standard rates taking into account the quantities involved and the usual industry practices in obtaining such quantities; and (c) such shortages and the difficulties in obtaining alternate sources of materials could not have been known or anticipated by Contractor at the time it submitted its bid or entered the Contract. Market fluctuations in prices of materials, whether or not resulting from a Force Majeure Event, does not constitute a Critical Supply Shortage.

3. Day -- A calendar day of 24 hours measured from midnight to the next midnight.

4. Defective Work -- Work that is unsatisfactory, faulty, or deficient; or that does not conform to the Contract Documents; or that does not meet the requirements of any inspection, reference standard, test, or approval referenced in the Contract Documents.
414
D&C 23-014 OPD RTIC & T.I. Improvements -20- SECTION 00700 – GENERAL CONDITIONS

5. Demobilization -- The complete dismantling and removal by the Contractor of all of the Contractor’s temporary facilities, equipment, and personnel at the Site.

6. Drawings -- That part of the Contract Documents prepared by of the Engineer of Record which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings and other Contractor Submittals are not Drawings as so defined.

7. Effective Date of the Contract -- The date indicated in the Contract on which it becomes effective, but if no such date is indicated, it means the date on which the Contract is signed and delivered by the last of the two parties to sign and deliver.

8. Engineer -- Whenever not qualified, shall mean the City Engineer or the Engineer authorized to act for and in behalf of the City, acting either directly or through properly authorized agents, such agents acting severally within the scope of the particular duties entrusted to them.

9. Force Majeure Event -- An event that materially affects a party’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the Site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); (4) pandemics, epidemics or quarantine restrictions; (5) strikes and other organized labor action occurring at the Site and the effects thereof on the Work, only to the extent such strikes and other organized labor action are beyond the control of Contractor and its Subcontractors, of every Tier, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (6) a Critical Supply Shortage. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.

10. Hazardous Waste -- The term “Hazardous Waste” shall have the meaning provided in Section 104 of the Solid Waste Disposal Act (42 U.S.C. § 6903) as amended from time to time, or any substance or material identified as hazardous under any state or federal statute governing handling, disposal and/or cleanup of any such substance or material, whichever is more restrictive.

11. Holiday – Holidays occur on:

New Year’s Day - January 1
President’s Day – Third Monday in February
Memorial Day - Last Monday in May
Independence Day - July 4
Labor Day - First Monday in September
Veteran’s Day - November 11
Thanksgiving Day - Fourth Thursday in November
Friday after Thanksgiving
Christmas Eve – December 24
415
D&C 23-014 OPD RTIC & T.I. Improvements -21- SECTION 00700 – GENERAL CONDITIONS Christmas Day - December 25
Day After Christmas – December 26
New Year’s Eve – December 31
If any Holiday listed above falls on a Saturday, Saturday and the preceding Friday are both Holidays. If the Holiday should fall on a Sunday, Sunday and the following Monday are both Holidays.

12. Notice of Award -- The written notice by the City to the Successful Bidder stating that upon timely compliance by the Successful Bidder with the conditions precedent listed therein, the City will sign and deliver the Contract.

13. Notice of Completion -- The form which may be executed by the City constituting final acceptance of the Project.

14. Notice to Proceed -- A written notice given by the City to Contractor fixing the date on which the Contractor may proceed with the Work and when Contract Times will commence to run.

15. Project -- The total construction of which the Work to be performed under the Contract Documents may be the whole, or a part.

16. Record Drawings – The record set of as-builts prepared by the Contractor during the Work in accordance with the requirements of the General Conditions.

17. Recyclable Waste Materials -- Materials removed from the Site which are required to be diverted to a recycling center rather than an area landfill. Recyclable Waste Materials include, but are not limited to, asphalt, concrete, brick, concrete block, and rock.

18. Sample -- A physical example furnished by the Contractor to illustrate materials, equipment or workmanship; to establish standards by which the Work will be judged.

19. Schedule of Submittals -- A schedule, prepared and maintained by Contractor, of required submittals and the time requirements to facilitate scheduled performance of related construction activities.

20. Shop Drawings -- All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work.

21. Site -- Lands or areas indicated in the Contract Documents as being furnished by the City upon which the Work is to be performed, including rights-of-way and easements for access thereto, and such other lands furnished by the City which are designated for the use of Contractor.

22. Specifications -- That part of the Contract Documents consisting of written requirements for materials, equipment, systems, standards and workmanship as 416
D&C 23-014 OPD RTIC & T.I. Improvements -22- SECTION 00700 – GENERAL CONDITIONS applied to the Work, and certain administrative requirements and procedural matters applicable thereto.

23. Stop Payment Notice -- A written notice as defined in Civil Code section 8044.

24. Subcontractor -- An individual or entity other than a Contractor having a contract with any other entity than the City for performance of any portion of the Work at the Site.

25. Submittal -- Written and graphic information and physical samples prepared and supplied by the Contractor demonstrating various portions of the Work.

26. Successful Bidder -- The responsible Bidder submitting a responsive Bid to whom the City makes an award.

27. Supplier -- A manufacturer, fabricator, supplier, distributor, material man, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment used in the performance of the Work or to be incorporated in the Work.

28. Underground Facilities -- All underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities, including those that convey electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems.

29. Unit Price Work -- Work to be paid for on the basis of unit prices as provided by the Contractor in its Bid or as adjusted in accordance with the Contract Documents.

30. Warranty -- A guarantee provided to the City by the Contractor that the Work will remain free of defects and suitable for its intended use for the period required by the Contract Documents or the longest period permitted by the law of this state, whichever is longer.

31. Work -- The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents.

1.2 Terminology.

A. The words and terms below are not defined but, when used in the Contract Documents, have the indicated meaning.

1. The word “furnish,” when used in connection with services, materials, or equipment, shall mean to supply and deliver said services, materials, or equipment 417
D&C 23-014 OPD RTIC & T.I. Improvements -23- SECTION 00700 – GENERAL CONDITIONS to the Site (or some other specified location) ready for use or installation and in usable or operable condition.

2. The word “install,” when used in connection with services, materials, or equipment, shall mean to put into use or place in final position said services, materials, or equipment complete and ready for intended use.

3. The words “perform” or “provide,” when used in connection with services, materials, or equipment, shall mean to furnish and install said services, materials, or equipment complete and ready for intended use.

4. Regardless of whether “furnish,” “install,” “perform,” or “provide” is used in connection with services, materials, or equipment, an obligation of Contractor is implied.

B. Unless stated otherwise in the Contract Documents, words or phrases that have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning.

ARTICLE 2 -PRELIMINARY MATTERS

2.1 Delivery of Contract Documents
A. Within ten (10) Days after receipt of the Notice of Award and before the City will execute the Contract, the Contractor shall furnish and file with the City a signed Contract and the necessary Performance Bond, Payment Bond, and Certificates of Insurance and Endorsements, as well as any other documents specified in the Contract Documents.

2.2 Bonds
A. Contractor shall submit the bonds on the forms provided with the Contract Documents, duly executed by a responsible corporate surety admitted to transact surety business in the State of California, as defined in Code of Civil Procedure section 995.120, and listed in the United States Department of the Treasury circular entitled "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies," authorized to do business in the State of California and acceptable to the City conditioned upon the faithful performance by the Contractor of all requirements of the Contract Documents. Each of the bonds shall be in a sum no less than one hundred percent (100%) of the Contract Price. Bonds shall be delivered to the City within ten (10) Days after receipt of the Notice of Award and before execution of the Contract by the City.

2.3 Evidence of Insurance
A. Prior to commencing any Work but no later than ten (10) Days after receipt of the Notice of Award, the Contractor shall submit or cause to be submitted any and all Certificates of Insurance and Endorsements, showing that the Contractor has the required insurance, to the attention of the City. Such insurance is to be provided at 418
D&C 23-014 OPD RTIC & T.I. Improvements -24- SECTION 00700 – GENERAL CONDITIONS the sole cost and expense of the Contractor. No Work shall be performed until all of the required insurance has been received and approved.

2.4 Execution of the Contract
A. Upon receipt of the required Contract Documents, the City will execute the Contract, establishing the Effective Date of the Contract.

2.5 Contractor’s Failure to Perform
A. Should Contractor fail to comply with timelines provided above, the City shall retain the right to enforce and collect on the Contractor’s Bid Guarantee, rescind award to the Contractor and award the Contract to the next lowest responsive, responsible bidder as determined by the City. If the City elects to accept bonds and insurance submitted late, the Contract Times will begin to run as of the date stated in the Notice to Proceed. However, the number of days beyond the original ten (10) Days it took to receive the properly executed Contract and related items may be deducted from the Contract Times.

2.6 Commencement of Contract Times; Notice to Proceed
A. The City will not issue a Notice to Proceed until after the Effective Date of the Contract.

Work shall commence within ten (10) Days of the date stated in the Notice to Proceed.

The Contract Times begin to run on the date specified in the Notice to Proceed. No Work shall be done at the Site prior to the issuance of the Notice to Proceed.

2.7 Copies of Documents
A. Contractor will be furnished, free of charge, five (5) copies of the Contract Documents. Additional copies may be obtained at cost of reproduction. Contractor shall maintain a clean, undamaged set of Contract Documents, including Submittals, at the Project site.

2.8 Substitution Requests, Schedule of Submittals, and Schedule A. Substitution Requests. Within thirty-five (35) days of Contract award (unless otherwise specified in the Contract Documents), Contractor shall provide all substitution requests as further described in the General Conditions.

B. Schedule of Submittals. Within five (5) Days after the issuance of the Notice of Proceed (unless otherwise specified in the Contract Documents), Contractor shall submit to the City a Schedule of Submittals that conforms with the requirements of Section 00 72 00, Article 5.21.

C. Schedule. Within ten (10) days after the issuance of the Notice of Proceed (unless otherwise specified in the Contract Documents), the Contractor shall submit a construction schedule that conforms with the requirements of Section 00 72 00, Article 8.2.
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D&C 23-014 OPD RTIC & T.I. Improvements -25- SECTION 00700 – GENERAL CONDITIONS

2.9 Preconstruction Conference; Designation of Authorized Representatives.

A. Before any Work at the Site is started, a conference attended by the City, Contractor, Engineer, and others as appropriate will be held to establish a working understanding among the parties as to the Work and to discuss the schedules referred to herein, procedures for handling Submittals and Shop Drawings, processing applications for payment, and maintaining required records.

B. At this conference the City and Contractor each shall designate, in writing, a specific individual to act as its authorized representative with respect to the services and responsibilities under the Contract. Such individuals shall have the authority to transmit instructions, receive information, render decisions relative to the Contract, and otherwise act on behalf of each respective party.

2.10 Subcontractor Mobilization Meeting.

A. Prior to the start of each major Subcontractor’s Site Work, the Contractor, the involved Subcontractor, and Engineer shall attend a pre-start meeting to discuss the schedule, coordination, procedures, and other administrative issues.

2.11 Authority of Council; Engineer
A. The City Council has the final authority in all matters affecting the Work. Within the scope of the Contract, the Engineer has the authority to enforce compliance with the Contract Documents. The Contractor shall promptly comply with instructions from the Engineer.

B. The decision of the Engineer is final and binding on all questions relating to:

1. quantities;

2. acceptability of material, equipment, or work;

3. execution, progress or sequence of work;

4. interpretation of the Plans, Specifications, or other Contract Documents; and

5. Any other areas specifically identified in the Contract Documents or under the law.

C. Compliance with instructions from the Engineer shall be a condition precedent to any payment under the Contract, unless otherwise ordered by the City Council.

2.12 Mobilization
A. When a Bid item is included in the Bid Schedule for mobilization, the costs of Work in advance of construction operations and not directly attributable to any specific bid item will be included in the progress estimate. When no bid item is provided for mobilization payment for such costs will be deemed to be included in the other items of the Work.
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D&C 23-014 OPD RTIC & T.I. Improvements -26- SECTION 00700 – GENERAL CONDITIONS B. Payment for mobilization based on the lump sum provided in the Bid Schedule, shall constitute full compensation for all such Work. No payment for mobilization will be made until all of the listed items have been completed to the satisfaction of the Engineer. The scope of the Work included under mobilization shall include, but shall not be limited to, the following principal items:

1. Obtaining and paying for all bonds, insurance, and permits.

2. Moving on to the Project Site of all Contractor’s plant and equipment required for the first month’s operations.

3. Installing temporary construction power, wiring, and lighting facilities, as applicable.

4. Establishing fire protection system, as applicable.

5. Developing and installing a construction water supply, as applicable.

6. Providing and maintaining the field office trailers for the Contractor, if necessary, and the Engineer (if specified), complete, with all specified furnishings and utility services.

7. Providing on-site sanitary facilities and potable water facilities as specified per CalOSHA and these Contract Documents.

8. Furnishing, installing, and maintaining all storage buildings or sheds required for temporary storage of products, equipment, or materials that have not yet been installed in the Work. All such storage shall meet manufacturer’s specified storage requirements, and the specific provisions of the specifications, including temperature and humidity control, if recommended by the manufacturer, and for all security.

9. Arranging for and erection of Contractor’s work and storage yard.

10. Posting all OSHA required notices and establishment of safety programs per CalOSHA.

11. Full-time presence of Contractor’s superintendent at the job Site as required herein.

12. Submittal of construction schedule as required by the Contract Documents.

ARTICLE 3 -CONTRACT DOCUMENTS; INTENT

3.1 Examination of Drawings, Specifications, and Site of Work A. Examination of Contract Documents; Site. Before commencing any portion of the Work, Contractor shall again carefully examine all applicable Contract Documents, the Project Site, and other information given to Contractor as to materials and methods of construction and other Project requirements. Contractor shall 421
D&C 23-014 OPD RTIC & T.I. Improvements -27- SECTION 00700 – GENERAL CONDITIONS immediately notify the Engineer of any potential error, inconsistency, ambiguity, conflict, or lack of detail or explanation. If Contractor performs, permits, or causes the performance of any Work which is in error, inconsistent or ambiguous, or not sufficiently detailed or explained, Contractor shall bear any and all resulting costs, including, without limitation, the cost of correction. In no case shall the Contractor or any Subcontractor proceed with Work if uncertain as to the applicable requirements.

B. Additional Instructions. After notification of any error, inconsistency, ambiguity, conflict, or lack of detail or explanation, the Engineer will provide any required additional instructions, by means of drawings or other written direction, necessary for proper execution of Work.

C. Quality of Parts, Construction and Finish. All parts of the Work shall be of the best quality of their respective kinds and the Contractor must use all diligence to inform itself fully as to the required construction and finish.

D. Contractor’s Variation from Contract Document Requirements. If it is found that the Contractor has varied from the requirements of the Contract Documents including the requirement to comply with all Applicable Laws, the Engineer may at any time, before or after completion of the Work, order the improper Work removed, remade or replaced by the Contractor at the Contractor’s expense.

3.2 Intent of Contract Documents
A. The Contract Documents are complementary; what is required by any one will be binding as if required by all. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be constructed in accordance with the Contract Documents. Any labor, documentation, services, materials, or equipment that reasonably may be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the indicated result will be provided whether or not specifically called for, at no additional cost to the City.

B. The Contractor shall furnish, unless otherwise provided in the Contract Documents, all materials, implements, machinery, equipment, tools, supplies and labor necessary to the prosecution and completion of the Project.

C. Clarifications and interpretations of the Contract Documents shall be issued by the Engineer as provided in these General Conditions.

D. If utilities to equipment/fixtures are not shown but are necessary to operate the equipment/fixtures, the utilities service installation is considered to be part of the Work. The implied Work will conform to the appropriate sections of the Contract Documents.

E. Organization of the Contract Documents into divisions, sections, and articles, and arrangement of drawings shall not control the Contractor in dividing Work among Subcontractors or in establishing the extent of Work to be performed by any trade. 422
D&C 23-014 OPD RTIC & T.I. Improvements -28- SECTION 00700 – GENERAL CONDITIONS

3.3 Reference Standards.

A. Standards, Specifications, Codes, Laws, and Regulations.

1. Reference to federal specifications, federal standards, other standards, specifications, manuals, or codes of any technical society, organization, or association, or to Applicable Laws, whether such reference be specific or by implication, shall mean the standard, specification, manual, code, or Applicable Laws in effect at the time of opening of Bids (or on the Effective Date of the Contract if there were no Bids), except as may be otherwise specifically stated in the Contract Documents.

2. No provision of any such standard, specification, manual, or code, or any instruction of a Supplier, shall be effective to change the duties or responsibilities of the City, Contractor, or any of their Subcontractors, consultants, agents, or employees, from those set forth in the Contract Documents. No such provision or instruction shall be effective to assign to the City, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors, any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents.

3.4 Reporting and Resolving Discrepancies; Order of Precedence.

A. Reporting Discrepancies.

1. The Contract Documents are intended to be fully cooperative and complementary.

Before undertaking each part of the Work, Contractor shall carefully study and compare the Contract Documents and check and verify pertinent figures therein and all applicable field measurements. Contractor shall promptly report in writing to the City any conflict, error, ambiguity, or discrepancy which Contractor discovers, should have discovered, or has actual knowledge of, and shall obtain a written interpretation or clarification from the City before proceeding with any Work affected thereby. If, during the performance of the Work, Contractor discovers any conflict, error, ambiguity, or discrepancy within the Contract Documents, or between the Contract Documents and (i) any Applicable Law, (ii) any standard, specification, manual, or code, or (iii) any instruction of any Supplier, then Contractor shall promptly submit a written Request for Information (RFI) to the City.

Contractor shall not proceed with the Work affected thereby (except in an emergency) until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in the Contract Documents, and any Work performed by Contractor before receipt of an amendment or supplement shall be at Contractor’s own risk.

B. Order of Precedence.

1. In case of conflicts between the Contract Documents, the order of precedence shall be as follows:
a. Permits from other agencies as may be required by law 423
D&C 23-014 OPD RTIC & T.I. Improvements -29- SECTION 00700 – GENERAL CONDITIONS b. Change Orders, most recent first
c. Contract
d. Addenda, most recent first
e. Special Conditions
f. Specifications
g. Construction Plans and Drawings(Contract Drawings)
h. General Conditions
i. Instructions to Bidders
j. Notice Inviting Bids
k. Contractor’s Bid (Bid Forms)
l. Standard Specifications for Public Works Construction “Greenbook” latest edition (Sections 1-9 Excluded)
m. Applicable Local Agency Standards and Specifications n. Standard Drawings
o. Reference Documents

2. With reference to the Drawings the order of precedence shall be as follows:
a. Figures govern over scaled dimensions
b. Detail drawings govern over general drawings
c. Addenda/Change Order drawings govern over Drawings
d. Contract Drawings govern over Standard Drawings
e. Contract Drawings govern over Shop Drawings

3. Notwithstanding the orders of precedence established above, in the event of conflicts, the higher standard, higher quality and most expensive shall always apply.

3.5 Amending and Supplementing Contract Documents.

A. The Contract Documents may be amended to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof only by Change Order or written amendment to the Contract duly executed by the parties. 424
D&C 23-014 OPD RTIC & T.I. Improvements -30- SECTION 00700 – GENERAL CONDITIONS B. The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized at no cost to the City, by one or more of the following ways:

1. The City’s review of a Submittal, Shop Drawing, Sample or substitution request without exception (subject to the provisions of the Contract Documents); or

2. The City’s issuance of a response to an RFI.

C. However, no review or RFI response will reduce or modify the Contractor’s obligation to fully satisfy and comply with the requirements of the Contract Documents.

3.6 Reuse of Documents.

A. Contractor and any Subcontractor or Supplier shall not:

1. have or acquire any title to or ownership rights in any of the Drawings, Specifications, or other documents (or copies of any thereof) prepared by or bearing the seal of Engineer of Record or its consultants, including electronic media editions; or

2. reuse any such Drawings, Specifications, other documents, or copies thereof on extensions of the Project or any other project without written consent of the City and Engineer of Record and specific written verification or adaptation by Engineer of Record.

B. The prohibitions of this Article will survive final payment, or termination of the Contract. Nothing herein shall preclude Contractor from retaining copies of the Contract Documents for record purposes.

ARTICLE 4 -INDEMNIFICATION; INSURANCE

4.1 Indemnification
A. To the fullest extent permitted by law, Contractor shall immediately defend (with counsel of the City’s choosing), indemnify and hold harmless the City, its officials, officers, agents, employees, and representatives, and each of them from and against:

1. Any and all claims, demands, causes of action, costs, expenses, injuries, losses or liabilities, in law or in equity, of every kind or nature whatsoever, but not limited to, injury to or death, including wrongful death, of any person, and damages to or destruction of property of any person, arising out of, related to, or in any manner directly or indirectly connected with the Work or this Contract, including claims made by subcontractors for nonpayment, including without limitation the payment of all consequential damages and attorney’s fees and other related costs and expenses, however caused, regardless of whether the allegations are false, fraudulent, or groundless, and regardless of any negligence of the City or its officers, employees, or authorized volunteers (including passive negligence), 425
D&C 23-014 OPD RTIC & T.I. Improvements -31- SECTION 00700 – GENERAL CONDITIONS except the sole negligence or willful misconduct or active negligence of the City or its officials, officers, employees, or authorized volunteers.

2. Contractor’s defense and indemnity obligation herein includes, but is not limited to damages, fines, penalties, attorney’s fees and costs arising from claims under the Americans with Disabilities Act (ADA) or other federal or state disability access or discrimination laws arising from Contractor’s Work during the course of construction of the improvements or after the Work is complete, as the result of defects or negligence in Contractor’s construction of the improvements.

3. Any and all actions, proceedings, damages, costs, expenses, fines, penalties or liabilities, in law or equity, of every kind or nature whatsoever, arising out of, resulting from, or on account of the violation of any governmental law or regulation, compliance with which is the responsibility of Contractor;

4. Any and all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense which any of them may incur with respect to the failure, neglect, or refusal of Contractor to faithfully perform the Work and all of Contractor’s obligations under Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees, incurred by the indemnified parties in any lawsuit to which they are a party.

B. Contractor shall immediately defend, at Contractor’s own cost, expense and risk, with the counsel of the City choosing, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its officials, officers, agents, employees and representatives. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against the City, its officials, officers, employees, agents, employees and representatives, in any such suit, action or other legal proceeding. Contractor shall reimburse the City, its officials, officers, agents, employees and representatives for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. The only limitations on this provision shall be those imposed by Civil Code section 2782.

C. The provisions of this Article shall survive the termination of this Contract howsoever caused, and no payment, partial payment, or acceptance of occupancy in whole or part of the Work shall waive or release any of the provisions of this Article.

4.2 Insurance
The Contractor shall obtain, and at all times during performance of the Work of Contract, maintain all of the insurance described in this Article. Contractor shall not commence Work under this Contract until it has provided evidence satisfactory to the City that it has secured all insurance required hereunder. Contractor shall not allow any Subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Article. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Contract for cause. Contractor shall furnish the City with original certificates of insurance and endorsements effective coverage required by this Contract on forms satisfactory to the City. The certificates and endorsements for 426
D&C 23-014 OPD RTIC & T.I. Improvements -32- SECTION 00700 – GENERAL CONDITIONS each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms acceptable to the City. All certificates and endorsements must be received and approved by the City before Work commences.

A. Additional Insureds; Waiver of Subrogation. The City, its officials, officers, employees, agents and authorized volunteers shall be named as Additional Insureds on Contractor’s All Risk policy and on Contractor’s and its subcontractors’ policies of Commercial General Liability and Automobile Liability insurance using, for Contractor’s policy/ies of Commercial General Liability insurance, ISO CG forms 20 10 and 20 37 (or endorsements providing the exact same coverage, including completed operations), and, for subcontractors’ policies of Commercial General Liability insurance, ISO CG form 20 38 (or endorsements providing the exact same coverage). Notwithstanding the minimum limits set forth in this Contract for any type of insurance coverage, all available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as Additional Insureds hereunder. All insurance coverage maintained or procured pursuant to this Contract shall be endorsed to waive subrogation against the City, its officers, officials, agents, employees or volunteers or shall specifically allow Contractor - or others providing insurance evidence in compliance with these specifications - to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against the City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. Copies of these waivers shall be submitted to the City prior to commencement of work.

B. Workers’ Compensation Insurance. The Contractor shall provide workers’ compensation insurance for all of the employees engaged in Work under this Contract, on or at the Site, and, in case of any sublet Work, the Contractor shall require the subcontractor similarly to provide workers’ compensation insurance for all the latter’s employees as prescribed by State law. Any class of employee or employees not covered by a subcontractor’s insurance shall be covered by the Contractor’s insurance. In case any class of employees engaged in work under this Contract, on or at the Site, is not protected under the Workers’ Compensation Statutes, the Contractor shall provide or shall cause a subcontractor to provide, adequate insurance coverage for the protection of such employees not otherwise protected. The Contractor is required to secure payment of compensation to his employees in accordance with the provisions of section 3700 of the Labor Code.

The Contractor shall file with the City certificates of his insurance protecting workers.

Company or companies providing insurance coverage shall be acceptable to the City, if in the form and coverage as set forth in the Contract Documents.

C. Employer’s Liability Insurance. Contractor shall provide Employer’s Liability Insurance, including Occupational Disease, in the amount of at least one million dollars ($1,000,000.00) per person per accident. Contractor shall provide the City with a certificate of Employer’s Liability Insurance. Such insurance shall comply with the provisions of the Contract Documents. The policy shall be endorsed, if applicable, to provide a Borrowed Servant/Alternate Employer Endorsement and contain a Waiver of Subrogation in favor of the City.
427
D&C 23-014 OPD RTIC & T.I. Improvements -33- SECTION 00700 – GENERAL CONDITIONS D. Commercial General Liability Insurance. Contractor shall provide “occurrence” form Commercial General Liability insurance coverage at least as broad as the most current ISO CGL Form 00 01, including but not limited to, premises liability, contractual liability, products/completed operations, personal and advertising injury which may arise from or out of Contractor’s operations, use, and management of the Site, or the performance of its obligations hereunder. The policy shall not contain any exclusion contrary to this Contract including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 39); or (2) cross-liability for claims or suits against one insured against another. Policy limits shall not be less than $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. Defense costs shall be paid in addition to the limits.

1. Such policy shall comply with all the requirements of this Article. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Contractor from liability in excess of such coverage, nor shall it limit Contractor’s indemnification obligations to the City, and shall not preclude the City from taking such other actions available to the City under other provisions of the Contract Documents or law.

2. All general liability policies provided pursuant to the provisions of this Article shall comply with the provisions of the Contract Documents.

3. All general liability policies shall be written to apply to all bodily injury, including death, property damage, personal injury, owned and non-owned equipment, blanket contractual liability, completed operations liability, explosion, collapse, under-ground excavation, removal of lateral support, and other covered loss, however occasioned, occurring during the policy term, and shall specifically insure the performance by Contractor of that part of the indemnification contained in these General Conditions relating to liability for injury to or death of persons and damage to property.

4. If the coverage contains one or more aggregate limits, a minimum of 50% of any such aggregate limit must remain available at all times; if over 50% of any aggregate limit has been paid or reserved, the City may require additional coverage to be purchased by Contractor to restore the required limits. Contractor may combine primary, umbrella, and as broad as possible excess liability coverage to achieve the total limits indicated above. Any umbrella or excess liability policy shall include the additional insured endorsement described in the Contract Documents.

5. All policies of general liability insurance shall permit and Contractor does hereby waive any right of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss.
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D&C 23-014 OPD RTIC & T.I. Improvements -34- SECTION 00700 – GENERAL CONDITIONS E. Automobile Liability Insurance. Contractor shall provide Automobile Liability Insurance at least as broad as ISO CA 00 01 (Any Auto) in the amount of, at least, two million dollars ($2,000,000) per accident for bodily injury and property damage.

Such insurance shall provide coverage with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Contractor or for which Contractor is responsible, in a form and with insurance companies acceptable to the City. All policies of automobile insurance shall permit and Contractor does hereby waive any right of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss.

1. The named insureds shall be Contractor, all Subcontractors of any tier (excluding those solely responsible for design work), suppliers, and the City, its elected officials, officers, employees, agents and authorized volunteers, as their interests may appear. Contractor shall not be required to maintain property insurance for any portion of the Work following acceptance by the City.

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

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

F. Contractor shall require all tiers of Subcontractors working under this Contract to provide the insurance required under this Article unless otherwise agreed to in writing by the City. Contractor shall make certain that any and all Subcontractors hired by Contractor are insured in accordance with this Contract. If any Subcontractor’s coverage does not comply with the foregoing provisions, Contractor shall indemnify and hold the City harmless from any damage, loss, cost, or expense, including attorneys’ fees, incurred by the City as a result thereof. 429
D&C 23-014 OPD RTIC & T.I. Improvements -35- SECTION 00700 – GENERAL CONDITIONS G. Notwithstanding the minimum limits set forth in this Contract for any type of insurance coverage, if Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

H. Form and Proof of Carriage of Insurance

1. Any insurance carrier providing insurance coverage required by the Contract Documents shall be admitted to and authorized to do business in the State of California unless waived, in writing, by the City’s Risk Manager. Carrier(s) shall have an A.M. Best rating of not less than an A:VII. Insurance deductibles or selfinsured retentions must be declared by the Contractor. At the election of the City the Contractor shall either 1) reduce or eliminate such deductibles or self-insured retentions, or 2) procure a bond which guarantees payment of losses and related investigations, claims administration, and defense costs and expenses. If umbrella or excess liability coverage is used to meet any required limit(s) specified herein, the Contractor shall provide a “follow form” endorsement satisfactory to the City indicating that such coverage is subject to the same terms and conditions as the underlying liability policy.

2. Each insurance policy required by this Contract shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced or cancelled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its officials, officers, agents, employees, and volunteers.

3. The Certificates(s) and policies of insurance shall contain or shall be endorsed to contain the covenant of the insurance carrier(s) that it shall provide no less than thirty (30) days written notice be given to the City prior to any material modification or cancellation of such insurance. In the event of a material modification or cancellation of coverage, the City may terminate the Contract or stop the Work in accordance with the Contract Documents, unless the City receives, prior to such effective date, another properly executed original Certificate of Insurance and original copies of endorsements or certified original policies, including all endorsements and attachments thereto evidencing coverage’s set forth herein and the insurance required herein is in full force and effect. Contractor shall not take possession, or use the Site, or commence operations under this Contract until the City has been furnished original Certificate(s) of Insurance and certified original copies of endorsements or policies of insurance including all endorsements and any and all other attachments as required in this Article. The original endorsements for each policy and the Certificate of Insurance shall be signed by an individual authorized by the insurance carrier to do so on its behalf.

4. The Certificate(s) of Insurance, policies and endorsements shall so covenant and shall be construed as primary, and the City’s insurance and/or deductibles and/or self-insured retentions or self-insured programs shall not be construed as contributory.
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D&C 23-014 OPD RTIC & T.I. Improvements -36- SECTION 00700 – GENERAL CONDITIONS

5. The City reserves the right to adjust the monetary limits and types of insurance coverages during the term of this Contract including any extension thereof if, in the City’s reasonable judgment, the amount or type of insurance carried by the Contractor becomes inadequate.

6. Contractor shall report to the City, in addition to the Contractor’s insurer, any and all insurance claims submitted by the Contractor in connection with the Work under this Contract.

7. Products/completed operations coverage shall extend a minimum of three years after the project completion. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors, the policy must include work performed “by or on behalf” of the insured. Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer. The City, its officers, officials, agents employees, and volunteers shall be included as insureds under the policy.

ARTICLE 5 -CONTRACTOR RESPONSIBILITIES; REGULATORY REQUIREMENTS

5.1 Applicable Laws
A. Contractor shall give all notices required by and shall comply with all Applicable Laws applicable to the performance of the Work. Except where otherwise expressly required by Applicable Laws, neither the City nor the City’s Representative shall be responsible for monitoring Contractor’s compliance with any Applicable Laws. If Contractor performs any Work knowing or having reason to know that it is contrary to Applicable Laws, Contractor shall bear all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such Work.

5.2 Permits and Licenses
A. Permits and licenses necessary for prosecution of the Work shall be secured and paid for by Contractor, including, but not limited to, excavation permit, for plumbing, mechanical and electrical work and for operations in or over public streets or right of way under jurisdiction of public agencies other than the City, unless otherwise specified in the Contract Documents.

B. The Contractor shall arrange and pay for all off-site inspection of the Work related to permits and licenses, including certification, required by the specifications, drawings, or by governing authorities, except for such off-site inspections delineated as the City’s responsibility pursuant to the Contract Documents.

C. Before acceptance of the Work, the Contractor shall submit all licenses, permits, certificates of inspection and required approvals to the City. 431
D&C 23-014 OPD RTIC & T.I. Improvements -37- SECTION 00700 – GENERAL CONDITIONS

5.3 Taxes
A. Contractor shall pay all sales, consumer, use, and other similar taxes required to be paid in accordance with the Applicable Laws of the place of the Project which are applicable during the performance of the Work. In accordance with Revenue and Taxation Code section 107.6, the Contract Documents may create a possessory interest subject to personal property taxation for which Contractor will be responsible.

5.4 Traffic Control
A. Traffic control plans, if required, shall be prepared at Contractor’s expense. Traffic control shall be performed at Contractor’s expense in accordance with the requirements of the City and/or the local agency with jurisdiction. Costs for traffic control plans, implementation of traffic control, or traffic signal services required by the City shall be included in the Contractor’s Bid.

B. All warning signs and safety devices used by the Contractor to perform the Work shall conform to the requirements contained in the State of California, Department of Transportation’s current edition of “Manual of Traffic Controls for Construction and Maintenance Work Zones” or to the requirements of the local agency. The Contractor shall also be responsible for all traffic control required by the agency having jurisdiction over the Project on the intersecting streets. Contractor must submit a traffic control plan to the agency having jurisdiction over the Project for approval prior to starting Work.

C. The Contractor’s representative on the site responsible for traffic control shall produce evidence that he/she has completed training acceptable to the California Department of Transportation for safety through construction zones. All of the streets in which the Work will occur shall remain open to traffic and one lane of traffic maintained at all times unless otherwise directed by the agency of jurisdiction.

Businesses and residences adjacent to the Work shall be notified forty-eight (48) hours in advance of closing of driveways. The Contractor shall make every effort to minimize the amount of public parking temporarily eliminated due to construction in areas fronting businesses. No stockpiles of pipe or other material will be allowed in traveled right-of-ways after working hours unless otherwise approved by the Engineer.

5.5 Safety
A. Contractor shall be solely responsible for all safety precautions and programs in connection with the Work. Such responsibility does not relieve Subcontractors of their responsibility for the safety of persons or property in the performance of their work, nor for compliance with applicable safety laws. Contractor shall comply with all Applicable Laws relating to the safety of persons or property, or to the protection of persons or property from damage, injury, or loss; and shall erect and maintain all necessary safeguards for such safety and protection. Contractor shall notify owners of adjacent property and of Underground Facilities and other utility owners when 432
D&C 23-014 OPD RTIC & T.I. Improvements -38- SECTION 00700 – GENERAL CONDITIONS prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation, and replacement of their property.

B. The Contractor shall maintain emergency first aid treatment for his employees which complies with the Federal Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.), and California Code of Regulations, Title 8, Industrial Relations Division 1, Department of Industrial Relations, Chapter 4. The Contractor shall ensure the availability of emergency medical services for its employees in accordance with California Code of Regulations, Title 8, Section 1512. The Contractor shall submit an Illness and Injury Prevention Program and a Project Site specific safety program to the City prior to beginning Work. Contractor shall maintain a confined space program that meets or exceeds the City’s standards. Contractor needs to make themselves aware of the City’s safety policies and procedures, and shall meet or exceed all City standards in areas where the City must enter to perform inspections.

C. Hazard Communication Programs. Contractor shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Applicable Laws.

5.6 Hazardous Materials
A. The City shall not be responsible for any Hazardous Waste brought to the site by the Contractor. If the Contractor: (i) introduces and/or discharges a Hazardous Waste onto the site in a manner not specified by the Contract Documents; and/or (ii) disturbs a Hazardous Material identified in the Contract Documents, the Contractor shall hire a qualified remediation contractor at Contractor’s sole cost to eliminate the condition as soon as possible. Under no circumstance shall the Contractor perform Work for which it is not qualified. The City, in its sole discretion, may require the Contractor to retain at Contractor’s cost an independent testing laboratory.

B. If the Contractor encounters a Hazardous Waste which may cause foreseeable injury or damage, Contractor shall immediately: (i) secure or otherwise isolate such condition; (ii) stop all Work in connection with such material or substance (except in an emergency situation); and (iii) notify the City (and promptly thereafter confirm such notice in writing).

C. Subject to Contractor’s compliance with this Article 5.6(B), the City shall verify the presence or absence of the Hazardous Waste reported by the Contractor, except as qualified under Article 5.6(A) and Article 5.6(B) in the event such material or substance is found to be present, verify that the levels of the hazardous material are below OSHA Permissible Exposure Levels and below levels which would classify the material as a state of California or federal hazardous waste. When the material falls below such levels, Work in the affected area shall resume upon direction by the City.

D. Contractor shall indemnify and hold harmless the City from and against claims, damages, losses and expenses, arising from a Hazardous Waste on the Project Site, if such Hazardous Waste exceeded OSHA Permissible Exposure Levels or levels 433
D&C 23-014 OPD RTIC & T.I. Improvements -39- SECTION 00700 – GENERAL CONDITIONS which would classify the material as a state of California or federal hazardous waste, and was either i) shown on the Contract Documents or information available to bidders; or (ii) brought to the site by Contractor. Nothing in this paragraph shall obligate the Contractor to indemnify the City in the event of the sole or active negligence or willful misconduct of the City, its officers, agents, or employees.

5.7 Sanitary Facilities.

A. Contractor shall provide sanitary temporary toilet buildings and hand washing facilities for the use of all workers. All toilets and hand washing facilities shall comply with local codes and ordinances. Toilets shall be placed inside sealed secondary containment devices installed on a flat, level surface. Accumulated liquids in the secondary containment devices shall be properly removed and legally disposed without spillage onto the ground. Toilets shall be kept supplied with toilet paper and shall have workable door fasteners. Toilets and hand washing facilities shall be serviced no less than once weekly and shall be present in a quantity of not less than 1 per 20 workers as required by Cal/OSHA regulations. The toilets and hand washing facilities shall be maintained in a sanitary condition at all times. Use of toilet and hand washing facilities in the Work under construction shall not be permitted.

Any other sanitary facilities required by Cal/OSHA shall be the responsibility of the Contractor.

5.8 Dust Control
A. Contractor, at its expense, shall maintain all excavations, embankments, haul roads, permanent access roads, plant sites, waste disposal areas, borrow areas, and all other work areas free from dust. Industry accepted methods of dust control suitable for the area involved, such as sprinkling, chemical treatment, light bituminous treatment or similar methods, will be permitted.

5.9 Air Pollution Control
A. Contractor shall comply with all air pollution control rules, regulations, ordinances and statutes. All containers of paint, thinner, curing compound, solvent or liquid asphalt shall be labeled to indicate that the contents fully comply with the applicable material requirements.

B. Without limiting the foregoing, Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the Air Quality Management District with jurisdiction over the Project and/or California Air Resources Board (CARB). Contractor shall specifically be aware of the application of these limits and requirements to "portable equipment", which definition includes any item of equipment with a fuel-powered engine. Contractor shall indemnify the City against any fines or penalties imposed by the air quality management district, CARB, or any other governmental or regulatory agency for its violations of Applicable Laws as well as those of its subcontractors or others for whom Contractor is responsible under its indemnity obligations provided for in the Contract Documents.
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D&C 23-014 OPD RTIC & T.I. Improvements -40- SECTION 00700 – GENERAL CONDITIONS

5.10 Water Quality Management and Compliance
A. Storm, surface, ground, nuisance, or other waters may be encountered at various times during construction of the Work. The Contractor hereby acknowledges that it has investigated the risk arising from such waters, has prepared its Bid accordingly, and assumes any and all risks and liabilities arising therefrom.

B. Contractor shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Work including, without limitation, all applicable provisions regulating discharges of storm water; the Federal Water Pollution Control Act (33 U.S.C. § 13000 et seq.); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000- 14950); and any and all regulations, policies, or permits issued pursuant to any such authority. These include, but are not limited to California State Water Resources Control Board Order Number 2009-0009-DWQ (NPDES Permit No. CAS000002), as amended by Order Numbers 2010-0014-DWQ, 2012-0006-DWQ, and any subsequent amendment to or renewal thereof, State Water Resources Control Board Order No. 2013-0001-DWQ (NPDES Order No. CAS000004), Santa Ana Regional Water Quality Control Board No. R8-2010-0036 (NPDES No. CAS618036), and any amendment or renewal thereof.

C. Contractor shall comply with all conditions of the State Water Resources Control Board (“State Water Board”) National Pollutant Discharge Elimination System General Permit for Waste Discharge Requirements for Discharges of Storm Water Runoff Associated with Construction Activity (“Construction General Permit”) for all construction activity which results in the disturbance of in excess of one acre of total land area or which is part of a larger common area of development or sale.

Contractor shall comply with the lawful requirements of the City, and any other applicable municipality, drainage district, or other local agency with jurisdiction over the location where the Work is to be conducted, regarding discharges of storm water to separate storm drain systems or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.

D. Unless otherwise specified in the Special Conditions or other portion of the Contract Documents, the City has not prepared a Storm Water Pollution Prevention Plan (“SWPPP”) or other storm water compliance plan for the Project Site. Contractor shall be responsible for filing the Notice of Intent (“NOI”) and for obtaining coverage under the Construction General Permit. This includes filing all necessary documentation including the Permit Registration Documents (“PRDs”) through the Stormwater Multiple Applications and Report Tracking System (“SMARTS”); preparing and implementing a SWPPP for the Work site; implementing all other provisions, and monitoring and reporting requirements required by the Construction General Permit; and providing a Qualified SWPPP Developer (“QSD”) and Qualified SWPPP Practitioner (“QSP”), as necessary for all Work site activities, including but not limited to preparation and submittal of all reports, plans, inspections, and monitoring information in compliance with the Construction General Permit. All submittals shall be coordinated with the City’s Legally Responsible Person and Authorized Signatory as those terms are defined in the Construction General Permit. 435
D&C 23-014 OPD RTIC & T.I. Improvements -41- SECTION 00700 – GENERAL CONDITIONS Before any NOI, PRD, SWPPP, or other Construction General Permit-related document may be submitted to the State Water Board or implemented on the Project site, it must first be reviewed and approved by the City and/or City’s designee.

Contractor shall include all costs of compliance with specified requirements in the Contract Price.

E. The City retains the right to develop its own documentation for the Project site, including but not limited to the SWPPP, and in the alternative may require Contractor to adopt and implement portions of the City developed SWPPP. The City expressly reserves the right to procure coverage under the Construction General Permit for the Work site if Contractor fails to draft satisfactory PRDs or SWPPP or otherwise fails to proceed in a manner that complies with the requirements of the Construction General Permit. The City additionally reserves the right to hire additional contractors to maintain compliance at the Work site. Whether Contractor has adequately maintained compliance with the Construction General Permit shall be the City’s sole determination. Any costs incurred by the City in procuring coverage under the Construction General Permit, or drafting and/or implementing a SWPPP for the Work site shall be paid by Contractor.

F. Notwithstanding the above, for those Work sites where construction activity results in the disturbance of less than one acre of total land area and/or do not need coverage under the Construction General Permit, the Contractor shall be responsible for preparing and implementing an Erosion and Sediment Control Plan in accordance with State Water Resources Control Board Order No. 2013-0001- DWQ (NPDES Order No. CAS000004) and any amendment to or renewal thereof.

G. Failure to comply with the Construction General Permit, laws, regulations, and ordinances listed in this Article is a violation of federal and state law.

Notwithstanding any other indemnity contained in these Contract Documents, Contractor agrees to indemnify and hold harmless the City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, fees, costs, expenses, or losses or liabilities of any kind or nature which the City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for noncompliance with the Permit, laws, regulations, and ordinances listed above, arising out of or in connection with the Work, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers.

H. The City reserves the right to defend any enforcement action or civil action brought against the City for Contractor’s failure to comply with any applicable water quality law, regulation, or policy. Contractor hereby agrees to be bound by, and to reimburse the City for the costs associated with, any settlement reached between the City and any relevant enforcement entity.

5.11 Environmental Quality Protection
A. The Contractor shall comply with all requirements of applicable federal, state, and local environmental rules and regulations. Any infractions of said rules and regulations by the Contractor during the term of the Contract, which result in 436
D&C 23-014 OPD RTIC & T.I. Improvements -42- SECTION 00700 – GENERAL CONDITIONS penalties, will be the responsibility of the Contractor. The City operates under a number of environmental permits issued by various agencies. If due to an action, inaction, or negligence by the Contractor, the City becomes subject to noncompliance penalties, the cost of such penalties shall be borne by the Contractor.

B. The Contractor shall exercise care to preserve the natural landscape and vegetation, and shall conduct operations so as to prevent unnecessary destruction, scarring, or defacing of the natural surroundings in the vicinity of the Work.

Movement of crews and equipment within the rights-of-way and over routes provided for access to the Work shall be performed in a manner to prevent damage to property. When no longer required, construction roads shall be restored to original contours. Upon completion of the Work, and following removal of construction facilities and required cleanup, land used for construction purposes and not required for the completed installation shall be scarified and regraded, as required, so that all surfaces are left in a condition that will facilitate natural revegetation, provide for proper drainage, and prevent erosion.

C. If, in the performance of the Work, evidence of the possible occurrence of any Federally listed threatened or endangered plant or animal is discovered, the Contractor shall notify the City Representative immediately, giving the location and nature of the findings. Written confirmation of the evidence, location and nature of the findings shall be forwarded to City within two (2) Days. The Contractor shall immediately cease all construction activities in the immediate area of the discovery to the extent necessary to protect the endangered plant or animal. If directed by the City Representative, Contractor will refrain from working in the immediate area, suspend the Work in its entirety, or alter its performance to ensure full compliance with all applicable permits, laws and regulations. Any City directed changes to the Work as a result of a siting will be pursuant to the Contract Documents. Any costs or delays incurred by City or the Contractor due to unreasonable or false notification of an endangered plant or animal will be borne by the Contractor.

D. If, in the performance of the Work, Contractor should unearth cultural resources (for example, human remains, animal bones, stone tools, artifacts and/or midden deposits) through excavation, grading, watering or other means, the Contractor shall notify the construction/archeological monitor and/or the City Representative immediately, giving the location and nature of the findings. Written confirmation of the evidence, location and nature of the findings shall be forwarded to the construction/archeological monitor and/or City within two (2) Days. The Contractor shall immediately cease all construction activities in the immediate area of the discovery to the extent necessary to protect the cultural resource. If directed by the City Representative, Contractor will refrain from working in the immediate area, suspend the Work in its entirety, or re-sequence and/or alter its performance to ensure full compliance with all applicable permits, laws and regulations. Should the presence of cultural resources be confirmed, the Contractor will assist the City Representative and the construction/archeological monitor in the preparation and implementation of a data recovery plan. The Contractor shall provide such cooperation and assistance as may be necessary to preserve the cultural resources for removal or other disposition. Any City directed changes to the Work as a result of the cultural resource will be pursuant to the Contract Documents. Should 437
D&C 23-014 OPD RTIC & T.I. Improvements -43- SECTION 00700 – GENERAL CONDITIONS Contractor, without permission, injure, destroy, excavate, appropriate, or remove any cultural resource on or adjacent to the Site, it will be subject to disciplinary action, arrest and penalty under applicable law. The Contractor shall be principally responsible for all costs of mitigation and/or restoration of cultural resources related to the unauthorized actions identified above. Contractor shall be required to pay for unauthorized damage and mitigation costs to cultural resources (historical and archeological resources) as a result of unauthorized activities that damage cultural resources and shall indemnify City pursuant to the Contract Documents.

5.12 Excessive Noise
A. Contractor shall use only such equipment on the Work and in such state of repair so that the emission of sound therefrom is within the noise tolerance level of that equipment as established by Cal/OSHA. Contractor shall comply with the most restrictive of the following: (1) local sound control and noise level rules, regulations and ordinances and (2) the requirements contained in these Contract Documents, including hours of operation requirements.

B. No internal combustion engine shall be operated on the Project without a muffler of the type recommended by the manufacturer. Should any muffler or other control device sustain damage or be determined to be ineffective or defective, the Contractor shall promptly remove the equipment and shall not return said equipment to the job until the device is repaired or replaced. Said noise and vibration level requirements shall apply to all equipment on the job or related to the job, including but not limited to, trucks, transit mixers or transit equipment that may or may not be owned by the Contractor.

5.13 Diversion of Recyclable Waste Material
A. In compliance with the applicable City’s waste reduction and recycling efforts, Contractor shall divert all Recyclable Waste Materials to appropriate recycling centers as required for compliance with the local jurisdiction’s waste diversion ordinances. Contractor will be required to submit weight tickets and written proof of diversion with its monthly progress payment requests. Contractor shall complete and execute any certification forms required by the City or other applicable agencies to document Contractor’s compliance with these diversion requirements. All costs incurred for these waste diversion efforts shall be the responsibility of the Contractor.

5.14 Inspector’s Field Office.

A. If required by the City, the Contractor shall be responsible for providing the inspector’s field office. The office shall be a substantial waterproof construction with adequate natural light and ventilation by means of stock design windows. Door shall have a key type lock or padlock clasp. The office shall have heating and air conditioning and shall be equipped with a telephone, a telephone answering machine, an ability to connect to the internet, and a fax machine at Contractor’s expense. The field office shall be provided within 20 Days of the Notice to Proceed.

B. A table satisfactory for the study of plans and two chairs shall be provided by Contractor. Contractor shall provide and pay for adequate electric lights, local 438
D&C 23-014 OPD RTIC & T.I. Improvements -44- SECTION 00700 – GENERAL CONDITIONS telephone service, and adequate heat and air conditioning for the field office until authorized removal.

5.15 Contractor’s Supervision.

A. Contractor shall continuously keep at the Project site, a competent and experienced full-time Project superintendent acceptable to the City. Superintendent must be able to proficiently speak, read and write in English and shall have the authority to make decisions on behalf of the Contractor. Contractor shall continuously provide efficient supervision of the Project.

5.16 Workers.

A. Contractor shall at all times enforce strict discipline and good order among its employees. Contractor shall not employ on the Project any unfit person or any one not skilled in the Work assigned to him or her.

B. Any person in the employ of the Contractor whom the City may deem incompetent or unfit shall be dismissed from the Work and shall not be employed on this Project.

5.17 Independent Contractors.

A. Contractor shall be an independent contractor for the City and not an employee.

Contractor understands and agrees that it and all of its employees shall not be considered officers, employees, or agents of the City and are not entitled to benefits of any kind normally provided employees of the City, including but not limited to, state unemployment compensation or workers’ compensation. Contractor assumes full responsibility for the acts and omissions of its employees or agents related to the Work.

5.18 Verification of Employment Eligibility.

A. By executing the Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors, sub-subcontractors and consultants to comply with the same. Each person executing this Contract on behalf of Contractor verifies that he or she is a duly authorized officer of Contractor and that any of the following shall be grounds for the City to terminate the Contract for cause: (1) failure of the Contractor or its Subcontractors, sub-subcontractors or consultants to meet any of the requirements provided for in this Article; (2) any misrepresentation or material omission concerning compliance with such requirements; or (3) failure to immediately remove from the Work any person found not to be in compliance with such requirements.

5.19 Labor.

A. Hours of Work
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D&C 23-014 OPD RTIC & T.I. Improvements -45- SECTION 00700 – GENERAL CONDITIONS

1. As provided in Article 3 (commencing at section 1810), Chapter 1, Part 7, Division 2 of the Labor Code, Contractor stipulates that eight (8) hours of labor shall constitute a legal day’s work. The time of service of any worker employed at any time by the Contractor or by any subcontractor on any subcontract under this Contract upon the Work or upon any part of the Work contemplated by this Contract is limited and restricted to eight (8) hours during any one calendar day and 40 hours during any one calendar week, except as hereinafter provided.

Notwithstanding the provisions herein above set forth, work performed by employees of Contractor in excess of eight (8) hours per day, and 40 hours during any one week, shall be permitted upon this public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and onehalf times the basic rate of pay.

2. The Contractor and every Subcontractor shall keep an accurate record showing the name of and actual hours worked each calendar day and each calendar week by each worker employed in connection with the Work or any part of the Work contemplated by this Contract. The record shall be kept open at all reasonable hours to the inspection of the City and to the Division of Labor Law Enforcement, Department of Industrial Relations of the State of California.

3. The Contractor shall pay to the City a penalty of twenty-five dollars ($25.00) for each worker employed in the execution of this Contract by the Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any calendar day and 40 hours in any one calendar week in violation of the provisions of Article 3 (commencing at section 1810), Chapter 1, Part 7, Division 2 of the Labor Code.

4. Any work necessary to be performed after regular working hours, or on Saturdays and Sundays or other holidays, shall be performed without additional expense to the City.

5. If Contractor gives notice of an inspection pursuant to the Contract Documents, the City will provide inspection during normal working hours from 7:00 a.m. to 3:30 p.m. Monday through Friday. Requested inspections before or after this time will be charged to the Contractor as reimbursable inspection time. Inspections on weekends requires two (2) Days’ notice for review and approval. Upon written request and approval the 8.5 hour working day may be changed to other limits subject to city/county ordinance.

6. It shall be unlawful for any person to operate, permit, use, or cause to operate any of the following at the Project Site, other than between the hours of 7:00 a.m. to 5:00 p.m., Monday through Friday, with no Work allowed on City-observed Holidays, unless otherwise approved by the City:
a. Powered Vehicles
b. Construction Equipment
c. Loading and Unloading Vehicles
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D&C 23-014 OPD RTIC & T.I. Improvements -46- SECTION 00700 – GENERAL CONDITIONS d. Domestic Power Tools
B. Payroll Records; Labor Compliance

1. Pursuant to Labor Code section 1776, Contractor and all subcontractors shall maintain weekly certified payroll records, showing the names, addresses, Social Security numbers, work classifications, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by them in connection with the Work under this Contract. Contractor shall certify under penalty of perjury that records maintained and submitted by Contractor are true and accurate. Contractor shall also require Subcontractor(s) to certify weekly payroll records under penalty of perjury.

2. In accordance with Labor Code section 1771.4, the Contractor and each Subcontractor shall furnish the certified payroll records directly to the Department of Industrial Relations (“DIR”) on the specified interval and format prescribed by the DIR, which may include electronic submission. Contractor shall comply with all requirements and regulations from the DIR relating to labor compliance monitoring and enforcement. The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

3. Any stop orders issued by the DIR against Contractor or any Subcontractor that affect Contractor’s performance of Work, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Contractor or any Subcontractor.

4. The payroll records described herein shall be certified and submitted by the Contractor at a time designated by the City. The Contractor shall also provide the following:
a. A certified copy of the employee’s payroll records shall be made available for inspection or furnished to such employee or his or her authorized representative on request. b. A certified copy of all payroll records described herein shall be made available for inspection or furnished upon request of the DIR.

5. Unless submitted electronically, the certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement (“DLSE”) of the DIR or shall contain the same information as the forms provided by the DLSE.

6. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency, the City, the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement shall be marked or 441
D&C 23-014 OPD RTIC & T.I. Improvements -47- SECTION 00700 – GENERAL CONDITIONS obliterated in such a manner as to prevent disclosure of an individual's name, address and social security number. The name and address of the Contractor awarded the Contract or performing the Contract shall not be marked or obliterated.

7. In the event of noncompliance with the requirements of this Article, the Contractor shall have ten (10) Days in which to comply subsequent to receipt of written notice specifying in what respects the Contractor must comply with this Article. Should noncompliance still be evident after such 10-day period, the Contractor shall pay a penalty of one hundred dollars ($100.00) to the City for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payment then due.

8. The responsibility for compliance with this Article shall rest upon the Contractor.

C. Prevailing Rates of Wages

1. The Contractor is aware of the requirements of Labor Code sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Since this Project involves an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. The Contractor shall obtain a copy of the prevailing rates of per diem wages at the commencement of this Contract from the website of the Division of Labor Statistics and Research of the Department of Industrial Relations located at www.dir.ca.gov. In the alternative, the Contractor may view a copy of the prevailing rate of per diem wages which are on file at the City’s Administration Office and shall be made available to interested parties upon request. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification, or type of worker needed to perform work on the Project available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the Project site. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and authorized volunteers free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or allege failure to comply with the Prevailing Wage Laws.

2. The Contractor shall forfeit as a penalty to the City not more than Two Hundred Dollars ($200.00), pursuant to Labor Code section 1775, for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate as determined by the Director of the DIR for such work or craft in which such worker is employed for any public work done under the Contract by it or by any Subcontractor under it. The difference between such prevailing wage rate and the amount paid to each worker for each calendar day or portion thereof, for which each worker was paid less than the prevailing wage rate, shall be paid to each worker by the Contractor.
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3. Contractor shall post, at appropriate conspicuous points on the Project Site, a schedule showing all determined general prevailing wage rates and all authorized deductions, if any, from unpaid wages actually earned.

D. Public Works Contractor Registration

1. Pursuant to Labor Code sections 1725.5 and 1771.1, the Contractor and its Subcontractors must be registered with the DIR prior to the execution of a contract to perform public works. By entering into this Contract, Contractor represents that it is aware of the registration requirement and is currently registered with the DIR.

Contractor shall maintain a current registration for the duration of the Project.

Contractor shall further include the requirements of Labor Code sections 1725.5 and 1771.1 in any subcontract and ensure that all Subcontractors are registered at the time this Contract is entered into and maintain registration for the duration of the Project. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.

E. Employment of Apprentices

1. Contractor and all Subcontractors shall comply with the requirements of Labor Code sections 1777.5 and 1777.6 in the employment of apprentices.

2. Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from the Director of Industrial Relations, ex officio the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices.

3. Knowing violations of Labor Code section 1777.5 will result in forfeiture not to exceed one hundred dollars ($100.00) for each calendar day of non-compliance pursuant to Labor Code section 1777.7.

F. Nondiscrimination/Equal Employment Opportunity

1. Pursuant to Labor Code section 1735 and other applicable provisions of law, the Contractor and its Subcontractors shall not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, or any other classifications protected by law on this Project. The Contractor will take affirmative action to insure that employees are treated during employment or training without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, or any other classifications protected by law.

G. Debarment of Contractors and Subcontractors

1. Contractors or Subcontractors may not perform work on a public works project with a subcontractor who is ineligible to perform work on a public project pursuant to 443
D&C 23-014 OPD RTIC & T.I. Improvements -49- SECTION 00700 – GENERAL CONDITIONS Labor Code section 1777.1 or 1777.7. Any contract on a public works project entered into between a contractor and a debarred subcontractor is void as a matter of law. A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract. Any public money that is paid, or may have been paid to a debarred subcontractor by a contractor on the project shall be returned to the City. The Contractor shall be responsible for the payment of wages to workers of a debarred subcontractor who has been allowed to work on the Project.

5.20 Subcontracts.

A. Contractor agrees to bind every Subcontractor to the terms of the Contract Documents as far as such terms are applicable to Subcontractor’s portion of the Work. Contractor shall be as fully responsible to the City for the acts and omissions of its subcontractors and of persons either directly or indirectly employed by its subcontractors, as Contractor is for acts and omissions of persons directly employed by Contractor. Nothing contained in these Contract Documents shall create any contractual relationship between any subcontractor and the City.

B. The City reserves the right to accept all subcontractors. The City’s acceptance of any Subcontractor under this Contract shall not in any way relieve Contractor of its obligations in the Contract Documents.

C. Prior to substituting any Subcontractor listed in the Bid Forms, Contractor must comply with the requirements of the Subletting and Subcontracting Fair Practices Act pursuant to California Public Contract Code section 4100 et seq.

5.21 Progress Meetings
A. The Contractor shall schedule and hold regular progress meetings at least weekly and at other times as requested by Engineer or as required by progress of the Work.

The Contractor, City, and all Subcontractors active on the Site shall attend each meeting. Contractor may at its discretion request attendance by representatives of its Suppliers, manufacturers, and other Subcontractors. The City will preside at the progress meetings and will arrange for keeping and distributing the minutes. The purpose of the meetings is to review the progress of the Work, maintain coordination of efforts, discuss changes in scheduling, and resolve other problems which may develop. During each meeting, the Contractor shall present any issues which may impact its progress with a view to resolve these issues expeditiously.

5.22 Submittals
A. Schedule of Submittals. Within five (5) Days after the Notice to Proceed (unless otherwise specified in the Contract Documents), Contractor will prepare and deliver a Schedule of Submittals to the City that has been fully integrated with the progress schedule and identifies each Submittal required by the Contract Documents as well as the date on which Contractor will deliver each Submittal to the City. Each Submittal must be delivered to the City at least thirty (30) Days prior to the date the material or equipment is scheduled to be incorporated into the Work. The Contractor is responsible for any schedule delays resulting from the Submittal process. 444
D&C 23-014 OPD RTIC & T.I. Improvements -50- SECTION 00700 – GENERAL CONDITIONS B. Submittal Procedures.

1. Contractor will follow the following procedures for each Submittal, Shop Drawing and Sample required by the Contract Documents:
a. Submittals must be transmitted electronically.
b. Transmittals will be sequentially numbered. Contractor to mark revised Submittals with original number and sequential alphabetic suffix. c. Each Submittal will identify the Project, Contractor, Subcontractor and Supplier, pertinent Drawing and detail number, and Specification Section number appropriate to Submittal.
d. By transmitting a Submittal, Contractor certifies it has reviewed and approved each Submittal, verified products required, field dimensions, adjacent construction Work, and that coordination of information is according to requirements of the Work and Contract Documents.
e. Identify variations in Contract Documents and product or system limitations that may differ and/or be detrimental to successful performance of completed Work.
f. When Submittal is revised for resubmission, Contractor shall promptly address the City’s comments and resubmit. Contractor shall identify changes made since previous submission.
g. The City’s review of Shop Drawings shall not relieve Contractor from responsibility for deviations from the Contract Documents unless Contractor has, in writing, called the City’s attention to such deviations at time of submission and the City has taken no exception to the deviation. The City’s review of Shop Drawings shall not relieve Contractor from responsibility for errors in Shop Drawings.
h. Submittals not required by the Contract Documents or requested by the City will not be acknowledged or processed.
i. Incomplete Submittals will not be reviewed by the City. Delays resulting from incomplete Submittals are not the responsibility of the City. j. Contractor shall not be entitled to any extension of the Contract Times as a result of the Submittal process.
k. Contractor shall allow a minimum of 20 working days for review of Submittals unless otherwise specified in the Contract Documents.

2. Where a Submittal, Shop Drawing or Sample is required by the Contract Documents or the Schedule of Submittals, any related Work performed prior to the City review and approval of the pertinent submittal will be performed at the sole risk and expense and responsibility of Contractor.
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D&C 23-014 OPD RTIC & T.I. Improvements -51- SECTION 00700 – GENERAL CONDITIONS C. Schedule Milestone for Submittals. Contractor must submit all Submittals required by the Contract Documents in accordance with the Schedule of Submittals. If Contractor fails to submit the Submittals in accordance with the Schedule of Submittals, Contractor will be solely liable for any delays or impacts caused by the delayed Submittal, whether direct or indirect. Contractor will be liable for the time calculated from the date the Submittal is due until the date a compliant Submittal is made. A compliant Submittal will be one that is complete and satisfies the requirements of the Contract Documents.

5.23 Shop Drawings and Sample Submittal Procedures.

A. Before submitting each Shop Drawing or Sample, Contractor shall have:

1. Reviewed and coordinated each Shop Drawing or Sample with other Shop Drawings and Samples and with the requirements of the Work and the Contract Documents;

2. Determined and verified all field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information with respect thereto;

3. Determined and verified the suitability of all materials offered with respect to the indicated application, fabrication, shipping, handling, storage, assembly, and installation pertaining to the performance of the Work; and

4. Determined and verified all information relative to Contractor’s responsibilities for means, methods, techniques, sequences, and procedures of construction, and safety precautions and programs incident thereto.

B. With each Submittal, Contractor shall give the City specific written notice of any variations that the Shop Drawing or Sample may have from the requirements of the Contract Documents. This notice shall be both a written communication separate from the Shop Drawings or Sample Submittal and, in addition, a specific notation made on each Shop Drawing or Sample submitted to the City for review and approval of each such variation.

C. Shop Drawings.

1. Data shown on the Shop Drawings will be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data to show the City the services, materials, and equipment Contractor proposes to provide and to enable the City to review the information for assessing conformance with information given and design concept expressed in Contract Documents.

2. When required by individual Specification sections, provide Shop Drawings signed and sealed by a professional engineer responsible for designing components shown on Shop Drawings. Shop Drawings must include signed and sealed calculations to support design in a form suitable for submission to and approval by authorities having jurisdiction.
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3. Shop Drawings for steel structures shall consist of shop details, erection and other working Drawings showing details, dimensions, sizes of members and other information necessary for the complete fabrication and erection of the metal work.

4. Shop Drawings of concrete structures shall consist of such detailed drawings as may reasonably be required for the successful prosecution of the Work and which are not included in the Drawings furnished by the Engineer. These may include drawings for false work, bracing, centering and form work, masonry layout diagrams, and diagrams for bent reinforcement.

5. Contractor shall make revisions and provide additional information when required by authorities having jurisdiction.

D. Samples. Clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which intended and other data as required to enable the City to review the submittal for assessing conformance with information given and design concept expressed in Contract Documents. Samples should be of appropriate size and detail to assess functional, aesthetic, color, texture, patterns and finish selection.

E. City’s Review.

1. The City will review Shop Drawings and Samples in accordance with the Schedule of Submittals. The City’s review and acceptance will be only to determine if the items covered by the Submittals will, after installation or incorporation in the Work, conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents.

2. The City review and approval will not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequence, or procedure of construction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions.

3. The City’s review and acceptance shall not relieve Contractor from responsibility for any variation from the requirements of the Contract Documents unless the City has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Shop Drawing or Sample.

F. Resubmittal Procedures. Contractor shall make corrections required by the City and shall return corrected Shop Drawings and submit, as required, new Samples for review and approval. Contractor shall direct specific attention in writing to revisions other than the corrections called for by the City on previous Submittals.

5.24 Record (“As-Built”) Drawings.

A. The Contractor shall maintain one record set of Contract Documents at the Site or digitally in an acceptable format. On these, it shall mark all Project conditions, locations, configurations, and any other changes or deviations which may vary from 447
D&C 23-014 OPD RTIC & T.I. Improvements -53- SECTION 00700 – GENERAL CONDITIONS the information represented in the original Contract Documents, including buried or concealed construction and utility features which are revealed during the course of construction. Special attention shall be given to recording the horizontal and vertical location of all buried utilities that differ from the locations indicated, or which were not indicated on the Drawings. For all Projects involving the installation of any pipeline, Contractor shall survey and record the top of the pipe at a minimum of every 100 linear feet, and at each bend, recording both the horizontal and vertical locations. Said Drawings shall be supplemented by any detailed sketches as necessary or directed to fully indicate the Work as actually constructed. Any required as-built drawings of civil engineering elements of the Work shall be prepared by a registered civil engineer.

B. These master Record Drawings of the as-built conditions, including all revisions made necessary by Addenda and Change Orders, shall be maintained up-to-date during the progress of the Project. Red ink shall be used for alterations and notes.

Notes shall identify relevant Change Orders by number and date. Record Drawings shall be accessible to the Engineer at all times during the construction period.

Failure on the Contractor’s part to keep Record Drawings current could result in withholding partial payment.

C. Upon completion of the Project and as a condition of final acceptance, the Contractor shall finalize and deliver a complete set of Record Drawings to the Engineers. The information submitted by the Contractor will be assumed to be correct, and the Contractor shall be responsible for, and liable to the City, for the accuracy of such information, and for any errors or omissions which may or may not appear on the Record Drawings.

D. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to complete the Record Drawings shall be included in Contractor’s bid and distributed in the Bid Schedule. No additional compensation shall be made to the Contractor for this Work.

5.25 Layout and Field Engineering.

A. The Contractor shall utilize a properly licensed surveyor to perform all layout surveys required for the control and completion of the Work, and all necessary surveys to compute quantities of Work performed.

5.26 Separate Contracts and Cooperation.

A. Separate Contracts. The City reserves the right to let other contracts in connection with this Work or on the Project site. Contractor shall permit other contractors reasonable access and storage of their materials and execution of their work and shall properly connect and coordinate its Work with theirs. To ensure proper execution of its subsequent Work, Contractor shall immediately inspect work already in place and shall at once report to the Engineer any problems with the Work in place or discrepancies with the Contract Documents.

B. Cooperation. Contractor shall ascertain to its own satisfaction the scope of the Project and nature of any other contracts that have been or may be awarded by the 448
D&C 23-014 OPD RTIC & T.I. Improvements -54- SECTION 00700 – GENERAL CONDITIONS City in prosecution of the Project to the end that Contractor may perform this Contract in the light of such other contracts, if any. Nothing herein contained shall be interpreted as granting to Contractor exclusive occupancy at site of the Project.

Contractor shall not cause any unnecessary hindrance or delay to any other contractor working on the Project. If simultaneous execution of any contract for the Project is likely to cause interference with performance of some other contract or contracts, the Engineer shall decide which Contractor shall cease Work temporarily and which contractor shall continue or whether work can be coordinated so that contractors may proceed simultaneously. The City shall not be responsible for any damages suffered or for extra costs incurred by Contractor resulting directly or indirectly from award, performance, or attempted performance of any other contract or contracts on the Project Site.

5.27 Work Site.

A. Limitation of Use of Site and Other Areas. Rights-of-way, easements, or rights-ofentry for the Work will be provided by the City. Unless otherwise specified in the Special Provisions, the Contractor shall make arrangements, pay for, and assume all responsibility for acquiring, using, and disposing of additional work areas and facilities temporarily required. The Contractor shall indemnify and hold the City harmless from all claims for damages caused by such actions. Contractor shall confine construction equipment, the storage of materials and equipment, and the operations of workers to the Site and other areas permitted by Applicable Laws, and shall not unreasonably encumber the Site and other areas with construction equipment or other materials or equipment. Contractor shall assume full responsibility for any damage to any such land or area, or to City or occupant thereof, or of any adjacent land or areas resulting from the performance of the Work.

B. Site Maintenance. During the progress of the Work, Contractor shall keep the Site and other areas free from accumulations of waste materials, rubbish, and other debris. Removal and disposal of such waste materials, rubbish, and other debris shall conform to Applicable Laws. The Contractor shall furnish trash bins for all debris from construction. All debris shall be placed in trash bins daily. Forms and false-work that are to be re-used shall be stacked neatly concurrently with their removal. Forms and false-work that are not to be re-used shall be disposed of concurrently with their removal.

C. Cleaning. Prior to Completion of the Work, Contractor shall clean the Site and make it ready for utilization by the City. At the completion of the Work Contractor shall remove from the Site all tools, appliances, construction equipment and machinery, and surplus materials and shall restore to original condition all property not designated for alteration by the Contract Documents.

5.28 Utility Usage.

A. All temporary utilities, including but not limited to electricity, water, gas, and telephone, used on the Work shall be furnished and paid for by Contractor.

Contractor shall provide necessary temporary distribution systems, including meters, if necessary, from distribution points to points on the Work where the utility is 449
D&C 23-014 OPD RTIC & T.I. Improvements -55- SECTION 00700 – GENERAL CONDITIONS needed. Upon completion of the Work, Contractor shall remove all temporary distribution systems. Contractor shall provide necessary and adequate utilities and pay all costs for water, electricity, gas, oil, and sewer charges required for completion of the Work, including but not limited to startup and testing required in the Contract Documents. All permanent meters installed shall be listed in the Contractor’s name until the Work is accepted. For Work to be performed in existing City facilities, Contractor may use the City’s existing utilities, provided such use is reasonable under the circumstances. If Contractor uses the City utilities, it will not need to compensate the City for reasonably consumption of utilities, but Contractor will be responsible for any excessive, unreasonable or wasteful utility usage. Amounts due the City under this section may be deducted from progress payments.

5.29 Protection of Work and Property.

A. The Contractor shall digitally record video and take photographs of the Project site and adjacent improvements in a manner and quality that clearly depicts the existing condition of the Project Site and adjacent improvements immediately prior to the start of Work (minimum 1080p video and 4MP photo). All videos and photographs shall be date and time stamped. The Contractor shall submit the video and photos in digital format on a memory stick before the commencement of Work, along with a map outlining the route and locations of the videos and/or photographs. The Contractor shall be responsible for all damages to persons or property that occur as a result of the Work. Contractor shall be responsible for the proper care and protection of all materials delivered and Work performed until completion and final acceptance by the City. All Work shall be solely at the Contractor’s risk.

B. Contractor shall adequately protect adjacent property from settlement or loss of lateral support as necessary. Contractor shall comply with all applicable safety laws and building codes to prevent accidents or injury to persons on, about, or adjacent to the Project site where Work is being performed. Contractor shall erect and properly maintain at all times, as required by field conditions and progress of work, all necessary safeguards, signs, barriers, lights, and watchmen for protection of workers and the public, and shall post danger signs warning against hazards created in the course of construction.

C. Contractor shall provide such heat, covering, and enclosures as are necessary to protect all Work, materials, equipment, appliances, and tools against damage by weather conditions.

D. Contractor shall take adequate precautions to protect existing sidewalks, curbs, pavements, utilities, and other adjoining property and structures, and to avoid damage thereto, and Contractor shall repair any damage thereto caused by the Work operations. Contractor shall:

1. Enclose the working area with a substantial barricade, and arrange work to cause minimum amount of inconvenience and danger to the public.

2. Provide substantial barricades around any shrubs or trees indicated to be preserved.
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3. Deliver materials to the Site over a route designated by the City.

4. Provide any and all dust control required and follow the applicable air quality regulations as appropriate. If the Contractor does not comply immediately with a notice from the City or a public agency responsible for air quality, the City shall have the authority to provide dust control and deduct the cost from payments to the Contractor.

5. Confine Contractor’s apparatus, the storage of materials, and the operations of its workers to limits required by law, ordinances, permits, or directions of the City.

Contractor shall not unreasonably encumber the Site with its materials.

6. Take care to prevent disturbing or covering any survey markers, monuments, or other devices marking property boundaries or corners. If such markers are disturbed by accident, they shall be replaced by a civil engineer or land surveyor acceptable to the City, at no cost to the City.

7. Ensure that existing facilities, fences and other structures are all adequately protected and that, upon completion of all Work, all facilities that may have been damaged are restored to a condition acceptable to the City.

8. Preserve and protect from injury all buildings, pole lines and all directional, warning and mileage signs that have been placed within the right-of-way.

9. At the completion of work each day, leave the Work and the Site in a clean, safe condition.

10. Comply with any stage construction and/or traffic handling plans. Access to residences and businesses shall be maintained at all times, except with the City’s written approval. Any request for approval to reduce or restrict access to residences and business must be submitted to the City at least seven (7) Days in advance, and the City may issue or withhold approval in its sole discretion.

E. These precautionary measures will apply continuously and not be limited to normal working hours. Full compensation for the work involved in the protection and preservation of life, safety and property as above specified shall be considered as included in the prices paid for the various contract items of Work, and no additional allowance will be made therefor.

F. Should damage to persons or property occur as a result of the Work, Contractor shall promptly notify the City, in writing. Contractor shall be responsible for proper investigation, documentation, including video or photography, to adequately memorialize and make a record of what transpired. The City shall be entitled to inspect and copy any such documentation, video, or photographs.

G. Contractor shall maintain all investigation documentation including video and/or photographs for a minimum of four (4) years following completion of the Project. 451
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5.30 Emergencies.

A. In emergencies affecting the safety or protection of persons or the Work or Property at the Site or adjacent thereto, the Contractor, without special instruction or authorization from the City or the Engineer, is obligated to act to prevent threatened damage, injury or loss. The Contractor shall give the Engineer prompt written notice if the Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby.

ARTICLE 6 -MATERIALS; INSPECTION

6.1 Access to Work.

A. The City, Engineer, their consultants and other representatives and personnel, independent testing laboratories, and governmental agencies with jurisdictional interests will have access to the Site and the Work at reasonable times for their observation, inspection, and testing. Contractor shall provide them proper and safe conditions for such access and advise them of Contractor’s safety procedures and programs.

6.2 Materials.

A. Except as otherwise specifically stated in the Contract Documents, Contractor shall provide and pay for all materials, labor, tools, equipment, water, lights, power, transportation, superintendence, temporary constructions of every nature, and all other services and facilities whatsoever necessary to execute and complete this Contract within the Contract Time. Unless otherwise specified, all materials, parts, and equipment furnished by the Contractor in the Work shall be new, the best of their respective kinds and grades as noted and/or specified, and workmanship shall be of good quality.

B. No materials, supplies, or equipment for Work under this Contract shall be purchased subject to any chattel mortgage or under a conditional sale or other agreement by which an interest therein or in any part thereof is retained by the seller or supplier. Contractor warrants good title to all material, supplies, and equipment installed or incorporated in the Work and agrees upon completion of all work to deliver the Project, to the City free from any claims, liens, or charges.

C. Materials shall be furnished in ample quantities and at such times as to ensure uninterrupted progress of the Work and shall be stored properly and protected as required by the Contract Documents. Contractor shall be entirely responsible for damage or loss by weather or other causes to materials or Work. Materials shall be stored on the Project Site in such manner so as not to interfere with any operations of the City or any independent contractor.

D. Contractor shall verify all measurements, dimensions, elevations, and quantities before ordering any materials or performing any Work, and the City shall not be liable for Contractor’s failure to so. Except for an adjustment to Unit Price Work for item overruns and underruns in accordance with the Contract Documents, no additional compensation, over and above payment for the actual quantities at the prices set 452
D&C 23-014 OPD RTIC & T.I. Improvements -58- SECTION 00700 – GENERAL CONDITIONS out in the Bid Schedule, will be allowed because of differences between actual measurements, dimension, elevations and quantities and those indicated on the Plans and in the Specifications. Any difference therein shall be submitted to the Engineer for consideration before proceeding with the Work.

6.3 Test and Inspections.

A. Inspection and Testing of Work and Materials

1. If the Contract Documents, the Engineer, or any instructions, laws, ordinances, or public authority requires any part of the Work to be tested or approved, Contractor shall provide the Engineer at least two (2) working days’ notice of its readiness for observation or inspection. If inspection is by a public authority other than the City, Contractor shall promptly inform the City of the date fixed for such inspection.

Required certificates of inspection (or similar) shall be secured by Contractor.

Costs for City testing and inspection shall be paid by the City. Costs of tests for Work found not to be in compliance shall be paid by the Contractor.

2. The Contractor shall pay for the cost of any minimum “show up” costs of a materials testing technician that was called for by the Contractor but ultimately the Contractor work was not ready for the inspection. Any such costs shall be deducted from any amounts due to the Contractor.

3. If any Work is done or covered up without the required testing or approval, the Contractor shall uncover or deconstruct the Work, and the Work shall be redone after completion of the testing at the Contractor’s cost in compliance with the Contract Documents.

4. Where inspection and testing are to be conducted by an independent laboratory or agency, materials or samples of materials to be inspected or tested shall be selected by such laboratory or agency, or by the City, and not by Contractor.

Unless otherwise stated and as provided by the Contract Documents, the City shall employ and pay for the services of an independent testing laboratory to perform all inspections, tests, or approvals required by the Contract Documents. All tests or inspections of materials shall be made in accordance with the commonly recognized standards of national organizations.

5. Reexamination of Work may be ordered by the City. If so ordered, Work must be uncovered or deconstructed by Contractor. If Work is found to be in accordance with the Contract Documents, the City shall pay the costs of reexamination and reconstruction. If such work is found not to be in accordance with the Contract Documents, Contractor shall pay all costs.

B. Testing of Materials

1. In advance of manufacture of materials to be supplied by Contractor which must be tested or inspected, Contractor shall notify the City so that the City may arrange for testing at the source of supply. Any materials which have not satisfactorily passed such testing and inspection shall not be incorporated into the Work. 453
D&C 23-014 OPD RTIC & T.I. Improvements -59- SECTION 00700 – GENERAL CONDITIONS

2. If the manufacture of materials to be inspected or tested will occur in a plant or location greater than sixty (60) miles from the City, the Contractor shall pay for any excessive or unusual costs associated with such testing or inspection, including but not limited to excessive travel time, standby time and required lodging.

3. Unless otherwise specified in the Special Provisions, all initial testing and a reasonable amount of retesting will be performed under the direction of the Engineer, and at no expense to the Contractor. The Contractor shall notify the Engineer in writing, at least 15 days in advance, of its intention to use materials for which tests are specified, to allow sufficient time to perform the tests. The notice shall name the proposed supplier and source of material. If the notice of intent to use is sent before the materials are available for testing or inspection, or is sent so far in advance that the materials on hand at the time will not last but will be replaced by a new lot prior to use on the Work, it will be the Contractor's responsibility to renotify the Engineer when samples which are representative may be obtained.

4. A Certificate of Compliance shall be furnished to the Engineer prior to the use of any material or assembled material for which these Specifications so require or if so required by the Engineer. The Engineer may waive the materials testing requirements and accept a Certificate of Compliance. Material test data may be required by the Engineer to be included with the submittal. Materials used on the basis of a Certificate of Compliance may be sampled and tested at any time. The submission of a Certificate of Compliance shall not relieve the Contractor of responsibility for incorporating material into the Work which conforms to the requirements of the Contract Documents, and any material not conforming to the requirements will be subject to rejection by the Engineer whether in place or not.

5. Copies of mill certificates of composition and quality of all component materials (reinforcing steel, structural steel, lumber, etc.) incorporated in the construction of the Work shall be provided to the City at the time of delivery. City shall retain the right to reject any raw material not provided with a mill certificate at the time of delivery.

6. If, after incorporating such materials into the Work, it is found that sources of supply that have been approved do not furnish a uniform product, or if the product from any source proves unacceptable at any time, the Contractor shall furnish approved material from other approved sources. If any product proves unacceptable after improper storage, handling or for any other reason it shall be rejected, not incorporated into the Work, and shall be removed from the Project Site all at the Contractor’s expense.

6.4 Requests for Substitutions.

A. For the purposes of this provision, the term “substitution” shall mean the substitution of any material, method or service substantially equal to or better in every respect to that indicated in the Standard Specifications or otherwise referenced herein. 454
D&C 23-014 OPD RTIC & T.I. Improvements -60- SECTION 00700 – GENERAL CONDITIONS B. Pursuant to Public Contract Code section 3400(b), the City may make a finding that is described in the Notice Inviting Bids that designates certain products, things, or services by specific brand or trade name.

C. Unless specifically designated in the Special Conditions, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such specifications shall be deemed to be used for the purpose of facilitating the description of the material, process, or article desired and shall be deemed to be followed by the words “or equal.” Contractor may, unless otherwise stated, offer for substitution any material, process, or article which may be substantially equal to or better in every respect to that so indicated or specified in the Contract Documents. However, the City has adopted uniform standards for certain materials, processes, and articles.

D. The Contractor shall submit substitution requests, together with substantiating data, for substitution of any “or equal” material, process, or article no later than thirty-five (35) calendar days after award of Contract. Provisions regarding submission of substitution requests shall not in any way authorize an extension of time for the performance of this Contract. If a substitution request is rejected by the City, the Contractor shall provide the material, method or service specified herein. The City shall not be responsible for any costs incurred by the Contractor associated with substitution requests. The burden of proof as to the equality of any material, process, or article shall rest with the Contractor. The Engineer has the complete and sole discretion to determine if a material, process, or article is substantially equal to or better than that specified and to approve or reject all substitution requests.

E. Substantiating data as described above shall include, at a minimum, the following information:

1. A signed affidavit from the Contractor stating that the material, process, or article proposed as a substitution is substantially equal to or better than that specified in every way except as may be listed on the affidavit.

2. Illustrations, specifications, catalog cut sheets, and any other relevant data required to prove that the material, process, or article is substantially equal to or better than that specified.

3. A statement of the cost implications of the substitution being requested, indicating whether and why the proposed substitution will reduce or increase the amount of the contract.

4. Information detailing the durability and lifecycle costs of the proposed substitution.

F. Failure to submit all the required substantiating data detailed above in a timely manner so that the substitution request can be adequately reviewed may result in rejection of the substitution request. The Engineer is not obligated to review multiple submittals related the same substitution request resulting from the Contractor’s failure to initially submit a complete package.
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D&C 23-014 OPD RTIC & T.I. Improvements -61- SECTION 00700 – GENERAL CONDITIONS G. Time limitations within this Article shall be strictly complied with and in no case will an extension of time for completion of the contract be granted because of Contractor’s failure to provide substitution requests at the time and in the manner described herein.

H. The Contractor shall bear the costs of all the City work associated with the review of substitution requests.

I. If substitution requests approved by the Engineer require that Contractor furnish materials, methods or services more expensive than that specified, the increased costs shall be borne by Contractor.

ARTICLE 7 -SUBSURFACE AND PHYSICAL CONDITIONS; UTILITIES

7.1 Soils Investigations.

A. When a soils investigation report for the Site is available, such report is provided for informational purposes only. Any information obtained from such report as to subsurface soil condition, or to elevations of existing grades or elevations of underlying rock, is approximate only and is not guaranteed. Contractor acknowledges that any soils investigation report (including any borings) was prepared for purposes of design only and Contractor is required to examine the Site before submitting its Bid and must make whatever tests it deems appropriate to determine the condition of the so

7.2 Ownership of Site Materials Found.

A. The title to water, soil, rock, gravel, sand, minerals, timber and any other materials developed or obtained in the excavation or other operations of Contractor or any of its Subcontractors in the performance of the Contract, and the right to use said items in carrying out the Contract, or to dispose of same, is hereby expressly reserved by the City. Neither Contractor nor any of its Subcontractors nor any of their representatives or employees shall have any right, title, or interest in said materials, nor shall they assert or make any claim thereto. Contractor will, as determined by the City’s Representative, be permitted to use in the Work without charge, any such materials which meet the requirements of the Contract Documents, provided the City shall have the right to use or consume these materials without payment to a third party.

7.3 Existence of Utilities at the Work Site.

A. Existing Utilities

1. The location of known existing utilities and pipelines are shown on the Plans in their approximate locations. However, nothing herein shall be deemed to require the City to indicate the presence of existing service laterals or appurtenances whenever the presence of such utilities on the site of the project can be inferred from the presence of other visible facilities, such as buildings, cleanouts, meter and junction boxes, on or adjacent to the Site of the Project. 456
D&C 23-014 OPD RTIC & T.I. Improvements -62- SECTION 00700 – GENERAL CONDITIONS

2. The City will assume the responsibility for the timely removal, relocation, or protection of existing main or trunk line utility facilities located on the Project site if such utilities are not identified by the City in the Contract Documents or which cannot reasonably be inferred from the presence of other visible facilities.

B. Utility Location

1. It shall be the Contractor’s responsibility to determine the exact location and depth of all utilities, including service connections, which have been marked by the respective utility owners and which the Contractor believes may affect or be affected by the Contractor’s operations. The Contractor shall not be entitled to additional compensation nor time extensions for work necessary to avoid interferences nor for repair to damaged utilities if the Contractor does not expose all such existing utilities as required by this Article.

2. The locating of utilities shall be in conformance with Government Code Section 4216 et seq. except for the City’s utilities located on the City’s property and not on public right-of-way.

3. A “High Priority Subsurface Installation” is defined in Government Code Section 4216 (j) as “high-pressure natural gas pipelines with normal operating pressures greater than 415kPA gauge (60psig) or greater than six inches nominal pipe diameter, petroleum pipelines, pressurized sewage pipelines, high-voltage electric supply lines, conductors, or cables that have a potential to ground of greater than or equal to 60kv, or hazardous materials pipelines that are potentially hazardous to workers or the public if damaged.”

4. A “Subsurface Installation” is defined in Government Code Section 4216 (s) as “any underground pipeline, conduit, duct, wire, or other structure, except nonpressurized sewer lines, nonpressurized storm drains, or other nonpressurized drain lines.”

5. Pursuant to Government Code Section 4216.2 the Contractor shall contact the appropriate regional notification center at least two (2) working days but not more than 14 Days before performing any excavation. The date of the notification shall not count as part of the two-working-day notice. Before notifying the appropriate regional notification center, the Contractor shall delineate the area to be excavated. The Contractor shall request that the utility owners conduct a utility survey and mark or otherwise indicate the location of their service. The Contractor shall furnish to the Engineer written documentation of its contact(s) with the regional notification center prior to commencing excavation at such locations.

6. After the utility survey is completed, the Contractor shall commence “potholing” or hand digging to determine the actual location of the pipe, duct, or conduit and in accordance with Government Code Section 4216.4 if the excavation within the “tolerance zone” of a subsurface installation. The Engineer shall be given notice prior to commencing potholing operations. The Contractor shall uncover all piping and conduits, to a point one (1) foot below the pipe, where crossings, interferences, or connections are shown on the Drawings, prior to trenching or excavating for any 457
D&C 23-014 OPD RTIC & T.I. Improvements -63- SECTION 00700 – GENERAL CONDITIONS pipe or structures, to determine actual elevations. New pipelines shall be laid to such grade as to clear all existing facilities, which are to remain in service for any period subsequent to the construction of the run of pipe involved.

7. The Contractor's attention is directed to the requirements of Government Code Section 4216.2 (c) which provides: “When the excavation is proposed within 10 feet of a high priority subsurface installation, the operator of the high priority subsurface installation shall notify the excavator of the existence of the high priority subsurface installation to set up an onsite meeting prior to the legal excavation start date and time or at a mutually agreed upon time to determine actions or activities required to verify the location and prevent damage to the high priority subsurface installation. As part of the meeting, the excavator shall discuss with the operator the method and tools that will be used during the excavation and the information the operator will provide to assist in verifying the location of the subsurface installation. The excavator shall not begin excavating until after the completion of the onsite meeting.” The Contractor shall notify the Engineer in advance of this meeting.

C. Utility Relocation and Repair

1. If interferences occur at locations other than those indicated in the Contract Documents with reasonable accuracy, the Contractor shall notify the Engineer in writing. The Engineer will supply a method for correcting said interferences in accordance with the responsibilities of this section and Government Code Section 4215. To the extent any delay is caused thereby, Contractor shall submit a notice of delay within five (5) Days of discovery of the circumstances giving rise to the delay in accordance with Article 9.1 Change Orders and Time Extensions.

2. Care shall be exercised by the Contractor to prevent damage to adjacent existing facilities and public or private works; where equipment will pass over these obstructions, suitable planking shall be placed. If high priority subsurface installations are damaged and the operator cannot be contacted, the Contractor shall call 911 emergency services.

3. The City will compensate the Contractor for the costs of locating and repairing damage not due to the failure of the Contractor to exercise reasonable care, and for removing or relocating such main or trunk line utility facilities not indicated in the Contract Documents with reasonable accuracy, and for the cost of equipment on the Project necessarily idled during such work. The payment for such costs will be made as provided in Article 9.1 Change Orders and Time Extensions. The Contractor shall not be assessed liquidated damages for delay in completion of the Project, when such delay is caused by the failure of the City or utility company to provide for removal or relocation of such utility facilities. Requests for extensions of time arising out of utility relocation or repair delays shall be filed in accordance with Article 9.1 Change Orders and Time Extensions and Article 9.3 Time for Completion and Liquidated Damages.

4. The public utility, where it is the owner of the affected utility, shall have the sole discretion to perform repairs or relocation work or permit the Contractor to do such 458
D&C 23-014 OPD RTIC & T.I. Improvements -64- SECTION 00700 – GENERAL CONDITIONS repairs or relocation work at a reasonable price. The right is reserved to the City and the owners of utilities or their authorized agents to enter upon the Work area for the purpose of making such changes as are necessary for the rearrangement of their facilities or for making necessary connections or repairs to their properties.

The Contractor shall cooperate with forces engaged in such work and shall conduct its operations in such a manner as to avoid any unnecessary delay or hindrance to the work being performed by such forces and shall allow the respective utilities time to relocate their facility.

5. When the Contract Documents indicate that a utility is to be relocated, altered or constructed by others, the City will conduct all negotiations with the utility company and the work will be done at no cost to the Contractor, unless otherwise stipulated in the Contract Documents.

6. Temporary or permanent relocation or alteration of utilities desired by the Contractor for its own convenience shall be the Contractor’s responsibility and it shall make arrangements and bear all costs for such work.

D. Construction at Existing Utilities

1. Where the Work to be performed crosses or otherwise interferes with water, sewer, gas, or oil pipelines; buried cable; or other public or private utilities, the Contractor shall perform construction in such a manner so that no damage will result to either public or private utilities. It shall be the responsibility of the Contractor to determine the actual locations of, and make accommodates to maintain, all utilities.

2. Before any utility is taken out of service, permission shall be obtained by the Contractor from the owner. The owner, any impacted resident or business owner and the City Representative will be advised of the nature and duration of the utility outage as well as the Contractor’s plan for providing temporary utilities if required by the owner. The Contractor shall be liable for all damage which may result from its failure to maintain utilities during the progress of the Work, and the Contractor shall indemnify City as required by the Contract Documents from all claims arising out of or connected with damage to utilities encountered during construction; damages resulting from disruption of service; and injury to persons or damage to property resulting from the negligent, accidental, or intentional breaching of utilities.

3. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to complete this work, shall be included in Contractor’s bid and distributed in the schedule of pay Items. No additional compensation shall be made to the Contractor for this work.

7.4 Trenches
A. Trenches Five Feet or More in Depth.

1. Contractor shall submit to the Engineer at the preconstruction meeting, a detailed plan showing the design of shoring, bracing, sloping or other provisions to be made for worker protection from hazards of caving ground during the excavation of any 459
D&C 23-014 OPD RTIC & T.I. Improvements -65- SECTION 00700 – GENERAL CONDITIONS trench or trenches five feet or more in depth. If such plan varies from shoring system standards established by the Construction Safety Orders of the California Code of Regulations, Department of Industrial Relations, the plan shall be prepared by a California registered civil or structural engineer. The plan shall not be less effective than the shoring, bracing, sloping, or other provisions of the Construction Safety Orders, as defined in the California Code of Regulations. The Contractor shall designate in writing the “competent person” as defined in Title 8, California Code of Regulations, who shall be present at the Work Site each day that trenching/excavation is in progress. The “competent person” shall prepare and provide daily trenching/excavation inspection reports to the Engineer.

Contractor shall also submit a copy of its annual California Occupational Safety and Health Administration (Cal/OSHA) trench/excavation permit.

B. Excavations Deeper than Four Feet.

1. If the Work involves excavating trenches or other excavations that extend deeper than four (4) feet below the surface, Contractor shall promptly within three (3) Days, and before the excavation is further disturbed, notify the City in writing of any of the following conditions:
a. Material that the Contractor believes may be material that is hazardous waste, as defined in section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law. b. Subsurface or latent physical conditions at the site differing from those indicated. c. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract

2. The City shall promptly investigate the conditions, and if it finds that the conditions do so materially differ, or do involve hazardous waste, and cause a decrease or increase in Contractor’s cost of, or the time required for, performance of any part of the Work, shall issue a Change Order under the procedures described in Article

9.1 Change Orders and Time Extensions.

3. In the event that a dispute arises between the City and the Contractor as to whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the Contractor’s cost of, or time required for, performance of any part of the Work, the Contractor shall not be excused from any scheduled completion date provided for by the Contract, but shall proceed with all Work to be performed under the Contract. Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the parties.
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D&C 23-014 OPD RTIC & T.I. Improvements -66- SECTION 00700 – GENERAL CONDITIONS ARTICLE 8 -PROSECUTION OF THE WORK

8.1 Contractor’s Means and Methods.

A. Contractor is solely responsible for the means and methods utilized to perform the Work. In no case shall the Contractor’s means and methods deviate from commonly used industry standards.

8.2 Construction Schedule.

A. General Requirements. The schedule shall be prepared in a Critical Path Method (“CPM”) format and in an electronic scheduling program acceptable to the City and as specified in the Contract Documents. Contractor shall deliver the schedule and all updates to the City in both paper and electronic form. The electronic versions shall be in the format and include all data used to prepare the schedule. Copies are not acceptable.

B. Schedule. The receipt or approval of any schedules by the City shall not in any way relieve the Contractor of its obligations under the Contract Documents. The Contractor is fully responsible to determine and provide for any and all staffing and resources at levels which allow for good quality and timely completion of the Project.

Contractor’s failure to incorporate all elements of Work required for the performance of the Contract or any inaccuracy in the schedule shall not excuse the Contractor from performing all Work required for a completed Project within the specified Contract Time. If the required schedule is not received by the time the first payment under the Contract is due, Contractor shall not be paid until the schedule is received, reviewed and accepted by the City.

C. Schedule Contents. The schedule shall allow enough time for inclement weather.

The schedule shall indicate the beginning and completion dates of all phases of construction; critical path for all critical, sequential time related activities; and “float time” for all “slack” or “gaps” in the non-critical activities. The schedule shall include appropriate time allowances and constraints for submittals, items of interface with Work performed by others, and specified construction, start-up and performance tests. All float shall be owned by the Project. Schedules indicating early or late completion shall not modify or have any effect on the Contract Time, regardless of whether the schedules are reviewed and/or accepted by the City. For purposes of determining Liquidated Damages, the Contract Time shall control and may only be altered by a duly authorized Change Order.

D. Schedule Updates. Contractor shall continuously update its construction schedule.

Contractor shall submit an updated and accurate construction schedule to the City:
(1) prior to the start of construction, if there are any changes to the initial schedule; (2) with each progress payment request; and (3) whenever requested to do so by the City. The City may withhold progress payments or other amounts due under the Contract Documents if Contractor fails to submit an updated and accurate construction schedule. Upon the City’s request, Contractor shall submit any schedules or updates to the City in the native electronic format of the software used to create the schedule. Contractor shall also submit schedules showing a two-week 461
D&C 23-014 OPD RTIC & T.I. Improvements -67- SECTION 00700 – GENERAL CONDITIONS detailed look-ahead at weekly meetings conducted with the City. The two-week lookahead schedule shall clearly identify all staffing and other resources which in the Contractor’s judgment are needed to complete the Work within the Contract Time, and it shall clearly state the number of staff to be used on each daily segment of the Work.

E. Acceptance. Acceptance of the schedules by the City will not impose on responsibility for accuracy, for sequencing, scheduling, or progress of the Work, or compliance with the Contract Documents. Acceptance will not interfere with or relieve Contractor from Contractor’s full responsibility therefor.

F. Recovery Schedule.

1. Should any of the following conditions exist, City may require Contractor to prepare, at no extra cost to City, a plan of action and a recovery schedule for completing the Work and achieving all contractual milestones within the allotted Contract Time:
a. The Contractor's monthly progress report indicates delays that are, in the opinion of City, of sufficient magnitude that City questions the Contractor's ability to complete the Work; b. The schedule shows the Contractor to be thirty (30) or more days behind the critical path at any time during construction;
c. The Contractor desires to make changes in the logic or the planned duration of future activities of the schedule which, in the opinion of City, are major in nature.

2. The recovery schedule shall include proposed revisions to the Construction Schedule, demonstrating how Contractor intends to achieve all contractual milestones including Contract completion within the allotted Contract Time. The submittal shall include a narrative describing the actions planned by the Contractor to recover the schedule.

3. Contractor shall submit the Recovery Schedule within seven (7) Days of City’s request. If Contractor asserts that City is responsible for the delay, failure to submit the recovery schedule within seven (7) Days of City’s request, will be considered a concurrent delay event attributable to Contractor, and Contractor shall only be entitled to non-compensable adjustments to Contract Times. If Contractor is responsible for the delay, this provision will not limit or affect Contractor's liability and failure to submit the recovery schedule with seven (7) Days of City’s request may result in City withholding progress payments or other amounts due under the Contract Documents.

4. Contractor is responsible for all costs associated with the preparation and execution of the recovery schedule, including any necessary recovery actions, which may include, but are not limited to, assignment of additional labor, and/or equipment, shift or overtime work, expediting of submittals or deliveries, overlapping of activities or sequencing changes to increase activity concurrence.

Regardless of whether City directs Contractor to prepare a recovery schedule pursuant to this Section, Contractor shall promptly undertake appropriate action at 462
D&C 23-014 OPD RTIC & T.I. Improvements -68- SECTION 00700 – GENERAL CONDITIONS no additional cost to City to recover the schedule whenever the current construction schedule shows that the Contractor will not achieve a milestone and/or complete the Work within the allotted Contract Time.

8.3 Time for Completion and Liquidated Damages
A. Time for Completion. The time for completion set forth in Article 2 of the Contract for Construction shall commence: (1) on the date stated in the Notice to Proceed, or (2) if the Notice to Proceed does not specify a commencement date, then on the date of the Notice to Proceed and shall be completed by Contractor in the time specified in the Contract Documents. The City is under no obligation to consider early completion of the Project; and the Contract completion date shall not be amended by the City’s receipt or acceptance of the Contractor’s proposed earlier completion date. Any difference in time between the Contractor’s early completion and the Contract Time shall be considered a part of the Project float. Contractor shall not be entitled to compensation, and the City will not compensate Contractor, for delays which impact early completion. Contractor shall not, under any circumstances, receive additional compensation from the City (including but not limited to indirect, general, administrative or other forms of overhead costs) for the period between the time of earlier completion proposed by the Contractor and the Contract completion date.

B. Liquidated Damages. If the Work is not completed within the Contract Time(s), it is understood that the City will suffer damage. In accordance with Government Code section 53069.85 and Public Contract Code section 7102, being impractical and infeasible to determine the amount of actual damage, it is agreed that Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum stipulated in the Contract for each calendar day of delay until the Work is fully completed. Contractor and its surety shall be liable for any liquidated damages. Any money due or to become due the Contractor may be retained to cover liquidated damages.

C. Inclement Weather. Contractor shall abide by the City’s determination of what constitutes inclement weather. Time extensions for inclement weather shall only be granted when the Work stopped during inclement weather is on the critical path of the Project schedule. Contractor shall not be entitled to reverse liquidated damages for time extensions resulting from inclement weather.

D. Extension of Time. Contractor’s entitlement to an extension of the Contract Time is limited to a City-caused extension of the critical path, reduced by the Contractor’s concurrent delays, and established by a proper time impact analysis. Contractor shall not be charged liquidated damages because of any delays in completion of the Work due to unforeseeable causes beyond the control and without the fault or negligence of Contractor (or its Subcontractors or Suppliers). The City shall ascertain the facts and extent of delay and grant extension of time for completing the Work when, in its judgment, the facts justify such an extension. Contractor shall not be entitled to an adjustment in the Contract Times for delays within the control of Contractor. Delays attributable to and within the control of a Subcontractor or Supplier shall be deemed to be delays within the control of Contractor. 463
D&C 23-014 OPD RTIC & T.I. Improvements -69- SECTION 00700 – GENERAL CONDITIONS E. Reverse Liquidated Damages. Consistent with Public Contract Code Section 7102, Contractor will be compensated for damages incurred due to unreasonable delays to the critical path for which the City is responsible. The parties agree that determining Contractor’s exact delay damages are and will continue to be impracticable and extremely difficult. As such, for each calendar day in excess of the time for completion set forth in Article 2 of the Contract for Construction, the City shall pay to the Contractor the sum stipulated in the Contract per day. Such amount shall constitute the only payment allowed for any City-caused delays and shall necessarily include all overhead, all profits, all administrative costs, all bond costs, all labor, materials, equipment and rental costs and any other costs, expenses and fees incurred or sustained as a result of such delays. Contractor shall not be entitled to reverse liquidated damages for any change in the Work in which Contractor is compensated for overhead and profit through a change in Unit Price Work or a Change Order resulting in a lump sum or allowed mark-up for the additional Work.

The amount of reverse liquidated damages shall be reduced by Contractor’s concurrent delays.

F. Force Majeure. In accordance with subparagraphs “D” and “E” above, the Contractor shall not be charged liquidated damages, and the City shall not be responsible, for any delays resulting from a Force Majeure Event. If a delay to the critical path results from a Force Majeure Event, the Contractor will be entitled to a time extension but will not receive an adjustment to the Contract Price or any other compensation. Such a non-compensable adjustment shall be Contractor’s sole and exclusive remedy for such delays.

G. No Damages for Reasonable Delay. The City’s liability to Contractor for delays for which the City is responsible shall be limited to only an extension of time unless such delays were unreasonable under the circumstances. In no case shall the City be liable for any costs which are borne by the Contractor in the regular course of business, including, but not limited to, home office overhead and other ongoing costs. Damages caused by unreasonable City delay shall be based on actual costs only, no proportions or formulas shall be used to calculate any delay damages.

H. Procedure for Time Extensions and Delay Damages. Contractor shall not be entitled to any extension of time or any reverse liquidated damages unless Contractor properly notices the delay and adjustment to compensation and requests a Change Order in accordance with Article 9.1 Change Orders and Time Extensions.

Contractor’s failure to timely and fully comply with the Change Order procedures in the Contract Documents shall constitute a waiver of Contractor’s right to a time extension or reverse liquidated damages.

8.4 Contractor’s Responsibility for Work.

A. Until the acceptance of the Work by the Engineer as evidenced in writing, it shall be under the charge and care of the Contractor. The Contractor shall take every necessary precaution against injury or damage to any part thereof by the action of the elements or from any cause whether arising from the execution or non-execution of the Work. The Contractor shall rebuild, repair, restore and make good at its own expense all injuries or damages to any portion of the Work before its completion and 464
D&C 23-014 OPD RTIC & T.I. Improvements -70- SECTION 00700 – GENERAL CONDITIONS acceptance. In the event of damage proximately caused by an Act of God, as defined by Section 7105 of the Public Contract Code, the City will pay for repair or restoration to damaged Work in excess of 5% of the total Bid.

8.5 Occupancy.

A. The City reserves the right to occupy or utilize any portion of the Work at any time before completion, and such occupancy or use shall not constitute acceptance of any part of Work covered by this Contract. This use shall not relieve the Contractor of its responsibilities under the Contract.

8.6 Securities for Money Withheld
A. Pursuant to section 22300 of the Public Contract Code of the State of California, Contractor may request the City to make retention payments directly to an escrow agent or may substitute securities for any money withheld by the City to ensure performance under the contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the City or with a state or federally chartered bank as the escrow agent who shall return such securities to Contractor upon satisfactory completion of the contract. Deposit of securities with an escrow agent shall be subject to a written agreement substantially in the form provided in section 22300 of the Public Contract Code.

8.7 The City’s Right to Suspend/Terminate the Contract
A. Suspension of Work by the City

1. The City may, at its sole option, decide to suspend at any time the performance of all or any portion of the Work by notice in writing to Contractor. Such notice of suspension of Work will designate the amount and type of plant, labor, and equipment to be committed to the Project during the period of suspension.

Contractor shall use its best efforts to utilize its plant, labor, and equipment in such a manner as to minimize costs associated with suspension.

2. Upon receipt of any such notice, Contractor shall, unless the notice requires otherwise:
a. Immediately discontinue Work on the date and to the extent specified in the notice; b. Place no further orders or subcontracts for material, services, or facilities with respect to suspended Work other than to the extent required in the notice; c. Promptly make every reasonable effort to obtain suspension upon terms satisfactory to the City’s Representative of all orders, subcontracts, and rental agreements to the extent they relate to performance of Work suspended; and
d. Continue to protect and maintain the Work including those portions on which Work has been suspended.
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D&C 23-014 OPD RTIC & T.I. Improvements -71- SECTION 00700 – GENERAL CONDITIONS

3. Except as provided by this Article, as full and complete compensation for such suspension, Contractor shall be granted an adjustment in the Contract Price based on a negotiated daily rate that reflects the Contractor’s actual costs associated with the demobilized condition of the Site and an extension of the Contract Times equal to the number of days performance of Work is suspended; provided, however, that no adjustment of Contract Price or extension of Contract Times shall be granted if the suspension results from Contractor's non-compliance with the requirements of the Contract.

B. Termination for Cause by the City:

1. In the sole estimation of the City, if the Contractor refuses or fails to prosecute the Work or any separable part thereof with such diligence as will insure its completion within the time specified by the Contract Documents, or any extension thereof, or fails to complete such Work within such time, or if the Contractor should be adjudged a bankrupt, or if it should make a general assignment for the benefit of its creditors, or if a receiver should be appointed on account of its insolvency, or the Contractor or any of its subcontractors should violate any of the provisions of this Contract, the City may serve written notice upon the Contractor and its surety of the City's intention to terminate this Contract. This notice of intent to terminate shall contain the reasons for such intention to terminate this Contract, and a statement to the effect that the Contractor's right to perform this Contract shall cease and terminate upon the expiration of ten (10) Days unless such violations have ceased and arrangements satisfactory to the City have been made for correction of said violations.

2. After expiration of the ten (10) Day period, the City may terminate the Contract by providing a Notice of Termination to the Contractor. The City may take over and complete the Work by any method it may deem appropriate, including enforcement of the Project performance bond. Contractor and its surety shall be liable to the City for any excess costs or other damages incurred by the City to complete the Work. If the City takes over the Work, the City may, without liability for so doing, take possession of and utilize in completing the Work such materials, appliances, plant, and other property belonging to the Contractor as may be on the Site.

3. Upon termination, Contractor shall not be entitled to receive any further payment from the City, except for Work which was duly performed prior to the effective date of the Notice of Termination. Contractor shall submit an invoice for final payment within thirty (30) Days of the effective date of the Notice of Termination. The City may withhold from final payment up to 150% of any disputed amounts, including any amounts which may be necessary to repair defective Work, complete unfinished Work, or are otherwise occasioned by Contractor’s failure to perform its duties under the Contract.

C. Termination for Convenience by the City:

1. The City may terminate performance of the Work called for by the Contract Documents in whole or, from time to time, in part, upon ten (10) Days written notice if the City determines that a termination is in the City's interest. 466
D&C 23-014 OPD RTIC & T.I. Improvements -72- SECTION 00700 – GENERAL CONDITIONS

2. The Contractor shall terminate all or any part of the Work upon delivery to the Contractor of a Notice of Termination specifying that the termination is for the convenience of the City, the extent of termination, and the effective date of such termination.

3. After receipt of Notice of Termination, and except as directed by the City's Representative, the Contractor shall, regardless of any delay in determining or adjusting any amounts due under this termination for convenience clause, immediately proceed with the following obligations:
a. Stop Work as specified in the Notice.
b. Complete any Work specified in the Notice of Termination in a least cost/shortest time manner while still maintaining the quality called for under the Contract Documents. c. Leave the property upon which the Contractor was working and upon which the facility (or facilities) forming the basis of the Contract Document is situated in a safe and sanitary manner such that it does not pose any threat to the public health or safety. d. Terminate all subcontracts to the extent that they relate to the portions of the Work terminated.
e. Place no further subcontracts or orders, except as necessary to complete the continued portion of the Contract.
f. Submit to the City's Representative, within ten (10) Days from the effective date of the Notice of Termination, all of the usual documentation called for by the Contract Documents to substantiate all costs incurred by the Contractor for labor, materials and equipment through the effective date of the Notice of Termination. Any documentation substantiating costs incurred by the Contractor solely as a result of the City's exercise of its right to terminate this Contract pursuant to this clause, which costs the contractor is authorized under the Contract documents to incur, shall: (1) be submitted to and received by the Engineer no later than 30 Days after the effective date of the Notice of Termination; (2) describe the costs incurred with particularity; and (3) be conspicuously identified as “Termination Costs occasioned by the City's Termination for Convenience.” If the City rejects any costs, Contractor shall be deemed to waive the rejected costs unless Contractor files a Claim within thirty (30) Days of the rejection pursuant to Article 9.2. g. Contractor shall be entitled to receive only the amounts payable under this Article, and Contractor specifically waives any claim for any other amounts or damages, including, but not limited to, any claim for consequential damages or lost profits. The provisions in this Article are in addition to and not in limitation of any other rights or remedies available to the City.

4. Termination of the Contract shall not relieve surety of its obligation for any just claims arising out of or relating to the Work performed.

5. Notwithstanding any other provision of this Article, when immediate action is necessary to protect life and safety or to reduce significant exposure or liability, the City may immediately order Contractor to cease Work on the Project until such 467
D&C 23-014 OPD RTIC & T.I. Improvements -73- SECTION 00700 – GENERAL CONDITIONS safety or liability issues are addressed to the satisfaction of the City or the Contract is terminated.

6. If the City terminates Contractor for cause, and if it is later determined that the termination was wrongful, such default termination shall automatically be converted to and treated as a termination for convenience. In such event, Contractor shall be entitled to receive only the amounts payable under this section, and Contractor specifically waives any claim for any other amounts or damages, including, but not limited to, any claim for consequential damages or lost profits.

8.8 Completion and Acceptance of Work
A. Final Inspection. Upon written notice from Contractor that the entire Work is complete, the Engineer will promptly make a final inspection with the City and Contractor and will notify Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. Contractor shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies.

B. Final Acceptance. The acceptance of the Work on behalf of the City will be made by the Engineer. Such acceptance by the City shall not constitute a waiver of defects. After Contractor has, in the opinion of the Engineer, satisfactorily completed all corrections identified during the final inspection and has delivered, in accordance with the Contract Documents, all maintenance and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurance, certificates of inspection, Record Documents, and other documents required by the Contract Documents, the City shall execute a Notice of Completion, constituting final acceptance and completion of the Project, except as may be expressly noted.

8.9 Warranty and Guaranty of Work.

A. Contractor hereby warrants that materials and Work shall be completed in conformance with the Contract Documents and that the materials and Work provided will fulfill the requirements of this Warranty. Contractor hereby agrees to repair or replace, at the discretion of the City, any or all Work that may prove to be defective in its workmanship, materials furnished, methods of installation or fail to conform to the Contract Document requirements together with any other Work which may be damaged or displaced by such defect(s) within a period of one (1) year (or as otherwise indicated in the Contract Documents or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the Work, whichever is later) from the date of the Notice of Completion of the Project without any expense whatever to the City, ordinary wear and tear and unusual abuse and neglect excepted. Contractor shall be required to promptly repair or replace defective equipment or materials, at Contractor’s option. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor.
468
D&C 23-014 OPD RTIC & T.I. Improvements -74- SECTION 00700 – GENERAL CONDITIONS B. For any Work so corrected, Contractor’s obligation hereunder to correct defective Work shall be reinstated for an additional one (1) year period, commencing with the date of acceptance of such corrected Work. The reinstatement of the one (1) year warranty shall apply only to that portion of work that was corrected. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. In the event of Contractor’s failure to comply with the above-mentioned conditions within ten (10) Days after being notified in writing of required repairs, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming Work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder immediately upon demand.

C. In addition to the warranty set forth in this Article, Contractor shall obtain for the City all warranties that would be given in normal commercial practice and assign to the City any and all manufacturer’s or installer’s warranties for equipment or materials not manufactured by Contractor and provided as part of the Work, to the extent that such third-party warranties are assignable and extend beyond the warranty period set forth in this Article. Contractor shall furnish the City with all warranty and guarantee documents prior to final acceptance of the Project by the City as required.

D. When specifically indicated in the Contract Documents or when directed by the Engineer, the City may furnish materials or products to the Contractor for installation.

In the event any act or failure to act by Contractor shall cause a warranty applicable to any materials or products purchased by the City for installation by the Contractor to be voided or reduced, Contractor shall indemnify the City from and against any cost, expense, or other liability arising therefrom, and shall be responsible to the City for the cost of any repairs, replacement or other costs that would have been covered by the warranty but for such act or failure to act by Contractor.

E. The Contractor shall remedy at its expense any damage to City-owned or controlled real or personal property.

F. The City shall notify the Contractor, in writing, within a reasonable time after the discovery of any failure, defect, or damage. The Contractor shall within ten (10) Days after being notified commence and perform with due diligence all necessary Work. If the Contractor fails to promptly remedy any defect or damage, the City shall have the right to replace, repair or otherwise remedy the defect, or damage at the Contractor’s expense.

G. In the event of any emergency constituting an immediate hazard to health, safety, property, or licensees, when caused by Work of the Contractor not in accordance with the Contract requirements, the City may undertake at Contractor’s expense, and without prior notice, all Work necessary to correct such condition.

H. Acceptance of Defective Work.
469
D&C 23-014 OPD RTIC & T.I. Improvements -75- SECTION 00700 – GENERAL CONDITIONS

1. If, instead of requiring correction or removal and replacement of defective Work, the City prefers to accept it, the City may do so. Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) attributable to the City’s evaluation of and determination to accept such defective Work and for the diminished value of the Work. If any acceptance of Defective Work occurs prior to release of the Project retention, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and the City shall be entitled to an appropriate decrease in the Contract Price, reflecting the diminished value of Work and all costs incurred by the City. If the acceptance of defective occurs after release of the Project retention, an appropriate amount will be paid by Contractor to the City.

I. The City May Correct Defective Work

1. If Contractor fails within a reasonable time after written notice from the City to correct Defective Work, or to remove and replace rejected Work as required by the City, or if Contractor fails to perform the Work in accordance with the Contract Documents, or if Contractor fails to comply with any other provision of the Contract Documents, the City may, after seven (7) Days written notice to Contractor, correct, or remedy any such deficiency.

2. In connection with such corrective or remedial action, the City may exclude Contractor from all or part of the Site, take possession of all or part of the Work and suspend Contractor’s services related thereto, take possession of Contractor’s tools, appliances, construction equipment and machinery at the Site, and incorporate in the Work all materials and equipment stored at the Site or for which the City has paid Contractor but which are stored elsewhere. Contractor shall allow the City, and the agents, employees, other contractors, and consultants of each of them, access to the Site to enable the City to exercise the rights and remedies to correct the Defective Work.

3. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred or sustained by the City correcting the Defective Work will be charged against Contractor, and a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and the City shall be entitled to an appropriate decrease in the Contract Price. Such claims, costs, losses and damages will include but not be limited to all costs of repair, or replacement of work of others destroyed or damaged by correction, removal, or replacement of defective Work.

4. If the Change Order is executed after all payments under the Contract have been paid by the City and the Project Retention is held in an escrow account as permitted by the Contract Documents, Contractor will promptly alert the escrow holder, in writing, of the amount of Retention to be paid to the City. If the Change Order is executed after release of the Project retention, an appropriate amount will 470
D&C 23-014 OPD RTIC & T.I. Improvements -76- SECTION 00700 – GENERAL CONDITIONS be paid by Contractor to the City. Contractor shall not be allowed an extension of the Contract Times because of any delay in the performance of the Work attributable to the City correcting Defective Work.

J. Nothing in the warranty or in the Contract Documents shall be construed to limit the rights and remedies available to the City at law or in equity, including, but not limited to, Code of Civil Procedure section 337.15.

ARTICLE 9 -CHANGE ORDERS; DISPUTE RESOLUTION

9.1 Change Orders and Time Extensions
All changes to the Contract, including compensation increases and time extensions, shall be through a written Change Order in accordance with this Article. The City, without invalidating the Contract, may order changes in the Work consisting of additions, deletions or other revisions, and Contractor’s compensation and the time for completion shall be adjusted accordingly. Whenever any change is made as provided for herein, such change shall be considered and treated as though originally included in the Contract, and shall be subject to all terms, conditions, and provisions of the original Contract. Contractor shall not be entitled to claim or bring suit for damages, whether for loss of profits or otherwise, on account of any decrease or omission of any item or portion of Work to be done. No dispute, disagreement, or failure of the parties to reach agreement on the terms of the Change Order shall relieve the Contractor from the obligation to proceed with performance of the Work, including Additional Work, promptly and expeditiously.

Any alterations, extensions of time, Additional Work, or any other changes may be made without securing consent of the Contractor’s surety or sureties.

A. Change in Contract Procedures

1. City Directive. The City may direct changes in the Work by delivering a written directive. To the extent the work directive results in a change to compensation or time, Contractor must timely request a Change Order and comply with all Change Order procedures in accordance with this Article. Notwithstanding issuance of a work directive, Contractor’s failure to timely request a Change Order shall constitute a waiver by Contractor of any adjustment to compensation or time extension for Work performed under the directive. The City shall not be liable to Contractor for Work performed or omitted by Contractor in reliance on verbal orders.

2. Contractor’s Notice of Change/Delay. If Contractor intends to initiate a Change Order Request, then Contractor shall provide the City with written notice of the underlying facts and circumstances that gave rise to the proposed change within the following times:
a. If due to unknown subsurface or latent physical conditions, within three (3) Days from the discovery date or prior to the alterations of the conditions, whichever is earlier. b. If due to a Force Majeure Event, as soon as reasonably practicable under the conditions, which shall be no longer than three (3) Days from the date the Contractor discovers that the Force Majeure Event gives rise to a change, unless that the conditions are such that notice within three (3) Days is not possible or practicable. 471
D&C 23-014 OPD RTIC & T.I. Improvements -77- SECTION 00700 – GENERAL CONDITIONS c. If due to any other matter that may involve an adjustment to the Contract Time or the Contract Price, within seven (7) days from the discovery date.

To be considered valid and complete, the notice of change/delay shall include a general statement of the circumstances giving rise to the notice of change/delay and a reasonable order of magnitude estimate of the additional costs and/or time.

If the circumstances give rise to both a cost adjustment and time extension, Contractor shall submit the notice of change and notice of delay concurrently.

3. Request for Change in Compensation and/or Extension of Time. Contractor shall submit a Change Order Request for any adjustment to Contractor’s compensation and/or any extension of time. The Change Order Request shall be made prior to incurring any expense and within fourteen (14) Days from either Contractor’s notice of change/delay or the City’s directive ordering the change. The Change Order Request shall include all of the following information (unless inapplicable to the change):
a. A detailed description of the circumstances giving rise to the request; b. A complete itemized cost proposal, including itemized pricing for first tier Subcontractors; c. Supporting documentation for all costs;
d. A time impact analysis showing the impact of the delay to the critical path to completion; e. If any added costs or information cannot be determined at the time of the Change Order Request, the reason the costs or information cannot be determined at the time; and f. Certification to the accuracy of the Change Order Request under penalty of perjury.

The time impact analysis shall be in the critical path method format and shall show the sequencing of all critical and non-critical new activities and/or activity revisions affected by the delay, with logic ties to all affected existing activities noted on the schedule.

The City may demand, and Contractor shall provide, any additional information supporting the Change Order Request, including but not limited to native electronic format version of schedules and time impact analyses. Contractor shall provide the requested additional information within five (5) Days of the request.

For any costs or information that cannot be determined at the time Contractor submits the Change Order Request, Contractor shall submit to the City notice of the costs or information and all supporting documentation within five (5) Days of when the costs or other information become subject to determination.

4. City’s Final Decision on Change Order; Ordered Changes. If the City denies the Change Order Request or disagrees with the proposal submitted by Contractor, it will notify the Contractor, and the City will provide its opinion of the appropriate price and/or time extension. If no agreement can be reached, the City shall have 472
D&C 23-014 OPD RTIC & T.I. Improvements -78- SECTION 00700 – GENERAL CONDITIONS the right to order the Work performed on a time and materials basis or to issue a unilateral Change Order setting forth the City’s determination of the reasonable additions or savings in costs and time attributable to the extra or deleted work. The City shall also have the right to order changes in the Work to be performed promptly by the Contractor on a time and materials basis or to issue a unilateral Change Order setting forth the City’s determination of the reasonable additions or savings in costs and time attributable to the extra or deleted work. The City’s determination shall become final and binding if the Contractor fails to submit a Claim in writing to the City within fourteen (14) Days of the issuance of the unilateral Change Order, disputing the terms of the unilateral Change Order and providing such supporting documentation for its position as the City may reasonably require.

5. Contractor’s Waiver of Further Relief. CONTRACTOR’S FAILURE TO PROVIDE

A COMPLETE AND TIMELY NOTICE OF CHANGE/DELAY AND/OR CHANGE

ORDER REQUEST, OR TO COMPLY WITH ANY OTHER REQUIREMENT OF

THIS ARTICLE, SHALL CONSTITUTE A WAIVER BY CONTRACTOR OF THE

RIGHT TO A CONTRACT ADJUSTMENT ON ACCOUNT OF SUCH

CIRCUMSTANCES AND A WAIVER OF ANY RIGHT TO FURTHER RECOURSE

OR RECOVERY BY REASON OF OR RELATED TO SUCH CHANGE BY

MEANS OF THE CLAIMS DISPUTE RESOLUTION PROCESS OR BY ANY

OTHER LEGAL PROCESS OTHERWISE PROVIDED FOR UNDER
APPLICABLE LAWS.

Contractor recognizes and acknowledges that timely submission of a formal written notice of change/delay and Change Order Request, whether or not the circumstances of the change may be known to the City or available to the City through other means, is not a mere formality but is of crucial importance to the ability of the City to promptly identify, prioritize, evaluate and mitigate the potential effects of changes. Any form of informal notice, whether verbal or written (including, without limitation, statements in requests for information, statements in Submittals, statements at any job meeting or entries on monthly reports, daily logs or job meeting minutes), that does not strictly comply with the formal requirements of this Article, shall accordingly be insufficient.

6. Change Order Format
a. A Change Order signed by the Contractor indicates the Contractor's agreement therewith, including any adjustment in compensation or extension of time, and the full and final settlement of all costs (direct, indirect and overhead) related to the Work authorized by the Change Order.
b. The City may designate the forms to be used for notices, requests, and Change Orders.

If so designated, Contractor may only use such forms. Contractor shall not reserve a right to assert impact costs, extended job site costs, extended overhead, constructive acceleration and/or actual acceleration beyond what is stated in the Change Order. No Claims shall be allowed for impact, extended overhead costs, constructive acceleration and/or actual acceleration due to a multiplicity of changes and/or clarifications. The 473
D&C 23-014 OPD RTIC & T.I. Improvements -79- SECTION 00700 – GENERAL CONDITIONS Contractor may not change or modify the City’s Change Order form in an attempt to reserve additional rights.

B. Determining Adjustments to Compensation.

1. Limitation on Costs. Contractor shall not be entitled to any compensation for Work subject to a Change Order except as expressly set forth in this Article. The markup added in instances of Additional Work shall constitute the entire amount of profit, any mark-ups, any field or home office overhead costs, including personnel, equipment or office space, any materials, or any costs of equipment idle time for such Work.

2. Unit Price Change Orders. When the actual quantity of a Unit Price Work item varies from the Bid Schedule, compensation for the change in quantity will be calculated by multiplying the actual quantity by the unit price. This calculation may result in either an additive or deductive Change Order. Bid items included on the Bid Schedule may be deducted from the Work in their entirety without any negotiated extra costs. Because Unit Price Work includes overhead and profit as determined by Contractor at the time of its Bid submission, no mark up or deduction for overhead and profit will be allowed.

3. Lump Sum Change Orders. Whenever possible, any changes affecting compensation shall be in a lump sum mutually agreed by the Contractor and the City.

4. Time and Materials Change Orders. The City may direct the Contractor to proceed with the Additional Work with payment to be made on the basis of actual cost of the labor and materials required to complete the Additional Work. If the Project is federally funded, a time and materials Change Order shall only be issued after a determination that no other Change Order is suitable and the Change Order shall include a ceiling price that the Contractor exceeds at its own risk.

5. Federally Funded Projects. For any change in price to the Contract, general and administrative expenses shall be negotiated and must conform to the cost principles set forth under at 2 C.F.R. Part 200, subpart E, and profit shall be negotiated as a separate element of the cost. To establish a fair and reasonable profit, consideration must be given to the complexity of the Additional Work to be performed, the risk borne by the Contractor, the Contractor's investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work.

6. Allowed Costs. Estimates for lump sum quotations and accounting for time-andmaterial work shall be limited to direct expenditures necessitated specifically by the change and shall be segregated as follows:
a. Labor. The costs of labor will be the actual cost for wages prevailing locally for each craft or type of worker at the time the Additional Work is done, plus employer payments of payroll taxes and insurance, health and welfare, pension, vacation, apprenticeship funds, and other direct costs resulting from federal, state or local laws, as well as assessment or benefits required by lawful collective bargaining agreements. The use of a labor 474
D&C 23-014 OPD RTIC & T.I. Improvements -80- SECTION 00700 – GENERAL CONDITIONS classification which would increase the Additional Work cost will not be permitted unless the Contractor establishes the necessity for such additional costs. Labor costs for equipment operators and helpers shall be reported only when such costs are not included in the invoice for equipment rental.
b. Materials. The cost of materials reported shall be at the lowest current price at which such materials are locally available in the quantities involved, plus sales tax, freight and delivery. Materials costs shall be based upon supplier or manufacturer’s invoice. c. Tool and Equipment Use. Regardless of ownership, the rates to be used in determining equipment use shall not exceed listed rates prevailing locally at equipment rental agencies, or distributors, at the time the work is performed. The Contractor shall furnish cost data supporting the establishment of the rental rate. The rental rate to be applied for use of each items of equipment shall be the rate resulting in the least total cost to the City for the total period of use. The City shall the make the final determination as to an equitable rental rate for the equipment. No payment will be made for the use of small tools, which have a replacement value of $1,000 or less. (i) The rental time to be paid for equipment shall be the time the equipment is in productive operation on the Additional Work being performed. Rental time will not be allowed while equipment is inoperative due to breakdowns. (ii) All equipment shall, in the opinion of the City, be in good working condition and suitable for the purpose for which the equipment is to be used. Equipment with no direct power unit shall be powered by a unit of at least the minimum rating recommended by the manufacturer.
(iii) Before construction equipment is used on any Additional Work, the Contractor shall plainly stencil or stamp an identifying number thereon at a conspicuous location, and shall furnish to the City, in duplicate, a description of the equipment and its identifying number.
(iv) When hourly rates are listed, any part of an hour less than 30 minutes of operation shall be considered to be 1/2-hour of operation, and any part of an hour greater than 30 minutes will be considered one hour of operation. When daily rates are listed, any part of a day less than 4 hours operation shall be considered to be 1/2- day of operation.
d. Allowed Mark-up. The allowed mark-up for any and all overhead (including supervision and home and field office costs) and profit on work added to the Contract shall be determined in accordance with the following provisions:
(i) “Net Cost” is defined as the actual costs of labor, materials and tools and equipment only, excluding overhead and profit. The costs of applicable insurance and bond premium will be reimbursed to the Contractor and Subcontractors at cost only, without mark-up. Contractor shall provide the City with documentation of the costs, including but not limited to payroll records, invoices, and such other information as the City may reasonably request.
475
D&C 23-014 OPD RTIC & T.I. Improvements -81- SECTION 00700 – GENERAL CONDITIONS (ii) For Work performed by the Contractor’s forces the allowed mark-up shall not exceed fifteen (15%) percent of labor costs, ten percent (10%) of material costs, and ten percent (10%) of the cost of tools and equipment use. (iii) For Work performed by a Subcontractor, the added cost for overhead and profit shall not exceed fifteen percent (15%) of the Subcontractor’s Net Cost of the Work to which the Contractor may add up to five percent (5%) of the Subcontractor’s Net Cost.
(iv) For Work performed by a sub-subcontractor, the added cost for overhead and profit shall not exceed fifteen percent (15%) of the sub-subcontractor’s Net Cost for Work to which the Subcontractor and Contractor may each add up to an additional five percent (5%) of the Net Cost of the lower tier subcontractor. (v) No additional mark-up will be allowed for lower tier subcontractors, and in no case shall the added cost for overhead and profit payable by the City exceed twentyfive percent (25%) of the Net Cost as defined herein, of the party that performs the Work.
(vi) Calculation of the mark-up will be subject to the limitations above and to calculation as further detailed in (b)(B)(5) above.
e. Documentation of Time-and-Material Costs.
(i) T&M Daily Sheets. Contractor must submit timesheets, materials invoices, records of equipment hours, and records of rental equipment hours to the City’s for an approval signature each day that Work is performed on a time-and-material basis.

The Engineer’s signature on time sheets only serves as verification that the Work was performed and is not indicative of the City’s agreement to Contractor’s entitlement to the cost.
(ii) T&M Summary Sheet. Contractor shall submit a T&M Summary Sheet, which shall include total actual costs, within five (5) Days following completion of Additional Work on a time-and-material basis. Contractor’s total actual cost shall be presented in a summary table in an electronic spreadsheet file by labor, material, equipment, and any other costs, along with documentation supporting the costs.

Contractor’s failure to submit the T&M Summary Sheet within five (5) Days of completion of the Additional Work will result in Contractor’s waiver for any reimbursement of any costs associated with the Additional Work. f. Excluded Costs. The following costs or any other home or field office overhead costs, all of which are to be considered administrative costs covered by the Contractor’s mark-up, shall not be allowed costs and shall not be included in any lump sum proposals or timeand-materials invoices:
(i) Overhead Cost. Payroll costs and other compensation of Contractor’s officers, executives, principals, general managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, timekeepers, clerks, and other personnel employed by Contractor whether at the Site or in 476
D&C 23-014 OPD RTIC & T.I. Improvements -82- SECTION 00700 – GENERAL CONDITIONS Contractor’s principal office or any branch office, material yard, or shop for general administration of the Work;
(ii) Office Expenses. Expenses of Contractor’s principal and branch offices; (iii) Capital Expenses. Any part of Contractor’s capital expenses, including interest on Contractor’s capital employed for the Additional Work and charges against Contractor for delinquent payments;
(iv) Negligence. Costs due to the negligence of Contractor or any Subcontractor or Supplier, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including without limitation the correction of Defective Work, disposal of materials or equipment wrongly supplied, and making good any damage to property;
(v) Small Tools. Cost of small tools valued at less than $1,000 and that remain the property of Contractor;
(vi) Administrative Costs. Costs associated with the preparation of Change Orders (whether or not ultimately authorized), cost estimates, or the preparation or filing of Claims;
(vii)Anticipated Lost Profits. Expenses of Contractor associated with anticipated lost profits or lost revenues, lost income or earnings, lost interest on earnings, or unpaid retention;
(viii) Home Office Overhead. Costs derived from the computation of a “home office overhead” rate by application of the Eichleay, Allegheny, burden fluctuation, or other similar methods;
(ix) Special Consultants and Attorneys. Costs of special consultants or attorneys, whether or not in the direct employ of Contractor, employed for services specifically related to the resolution of a Claim, dispute, or other matter arising out of or relating to the performance of the Additional Work.
(x) Other. Other overhead or general expense costs of any kind and the cost of any item not specifically and expressly included in the Contract Documents; including but not limited to: submittals, drawings, field drawings, shop drawings, including submissions of drawings; field inspection; general superintendence; computer services; reproduction services; salaries of project engineer, superintendent, timekeeper, storekeeper, and secretaries; janitorial services; small tools, incidentals and consumables; temporary on-site facilities (offices, telephones, high speed internet access, plumbing, electrical power, lighting; platforms, fencing, water); surveying; estimating; protection of work; handling and disposal fees; final cleanup; other incidental work; related warranties; insurance and bond premiums. (xi) Compliance with Federal Cost Principles. If the Project is federally funded, any costs that are not allowable, reasonable and allocable to the Project, under generally accepted accounting principles and the applicable federal requirements. 477
D&C 23-014 OPD RTIC & T.I. Improvements -83- SECTION 00700 – GENERAL CONDITIONS

9.2 Procedure for Resolving Claims.

Contractor shall timely comply with any and all requirement of the Contract Documents pertaining to notices and requests for changes to the Contract Time or Contract Price, including but not limited to all requirements of Article 9.1, as a prerequisite to filing any claim governed by this Article. The failure to timely submit a notice of delay or notice of change, or to timely request a change to the time for completion or Contractor’s compensation, or to timely provide any other notice or request required herein shall constitute a waiver of the right to further pursue the claim under the Contract or at law.

A. Intent. Effective January 1, 1991, Section 20104 et seq., of the California Public Contract Code prescribes a process utilizing informal conferences, non-binding judicial supervised mediation, and judicial arbitration to resolve disputes on construction claims of $375,000 or less. Effective January 1, 2017, Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims. The intent of this Article is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code.

This Article shall be construed to be consistent with all applicable law, including but not limited to these statutes.

B. Claims. For purposes of this Article, “Claim” means a separate demand by the Contractor for:

1. An adjustment to the time for completion including, without limitation, for relief from damages or penalties for delay assessed by the City;

2. Payment by the City of money or damages arising from Work done by or on behalf of the Contractor pursuant to the Contract, payment for which is not otherwise expressly provided or to which the Contractor is not otherwise entitled; or

3. An amount the payment of which is disputed by the City.

A “Claim” does not include any demand for payment for which the Contractor has failed to provide notice, request a Change Order, or otherwise failed to follow any procedures contained in the Contract Documents.

C. Filing Claims. Claims governed by this Article may not be filed unless and until the Contractor completes any and all requirements of the Contract Documents pertaining to notices and requests for changes to the Contract Time or Contract Price, and Contractor’s request for a change has been denied in whole or in part.

Claims governed by this Article must be filed no later than thirty (30) Days after a request for change has been denied in whole or in part or after any other event giving rise to the Claim. The Claim shall be submitted in writing to the City and shall include on its first page the following words in 16 point capital font: “THIS IS A CLAIM.” The Claim shall include the all information and documents necessary to substantiate the Claim, including but not limited to those identified below. Nothing in this Article is intended to extend the time limit or supersede notice requirements otherwise provided by Contract Documents. Failure to follow such contractual requirements shall bar any Claims or subsequent proceedings for compensation or payment thereon.
478
D&C 23-014 OPD RTIC & T.I. Improvements -84- SECTION 00700 – GENERAL CONDITIONS D. Documentation. The Contractor shall submit all Claims in the following format:

1. Summary description of Claim including basis of entitlement, merit and amount of time or money requested, with specific reference to the Contract Document provisions pursuant to which the Claim is made

2. List of documents relating to Claim:
a. Specifications
b. Drawings
c. Clarifications (Requests for Information)
d. Schedules
e. Other

3. Chronology of events and correspondence

4. Narrative analysis of Claim merit

5. Analysis of Claim cost, including calculations and supporting documents

6. Time impact analysis in the form required by the Contract Documents or, if the Contract Documents do not require a particular format, CPM format, if an adjustment of the Contract Time is requested
E. City’s Response. Upon receipt of a Claim pursuant to this Article, the City shall conduct a reasonable review of the Claim and, within a period not to exceed 45 Days, shall provide the Contractor a written statement identifying what portion of the Claim is disputed and what portion is undisputed. Any payment due on an undisputed portion of the Claim will be processed and made within 60 Days after the City issues its written statement.

1. If the City needs approval from its governing body to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the Claim, and the City’s governing body does not meet within the 45 Days or within the mutually agreed to extension of time following receipt of a Claim sent by registered mail or certified mail, return receipt requested, the City shall have up to three (3) Days following the next duly publicly noticed meeting of the City’s governing body after the 45-Day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputed portion.

2. Within 30 Days of receipt of a Claim, the City may request in writing additional documentation supporting the Claim or relating to defenses or Claims the City may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of the City and the Contractor. The City’s written response to the Claim, as further 479
D&C 23-014 OPD RTIC & T.I. Improvements -85- SECTION 00700 – GENERAL CONDITIONS documented, shall be submitted to the Contractor within 30 Days (if the Claim is less than $50,000, within 15 Days) after receipt of the further documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation, whichever is greater.

F. Meet and Confer. If the Contractor disputes the City’s written response, or the City fails to respond within the time prescribed, the Contractor may so notify the City, in writing, either within 15 Days of receipt of the City’s response or within 15 Days of the City’s failure to respond within the time prescribed, respectively, and demand in writing an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand, the City shall schedule a meet and confer conference within 30 Days for settlement of the dispute.

G. Mediation. Within 10 business days following the conclusion of the meet and confer conference, if the Claim or any portion of the Claim remains in dispute, the City shall provide the Contractor a written statement identifying the portion of the Claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the Claim shall be processed and made within 60 Days after the City issues its written statement. Any disputed portion of the Claim, as identified by the Contractor in writing, shall be submitted to nonbinding mediation, with the City and the Contractor sharing the associated costs equally. The public entity and Contractor shall mutually agree to a mediator within 10 business days after the disputed portion of the Claim has been identified in writing, unless the parties agree to select a mediator at a later time.

1. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the Claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator.

2. For purposes of this Article, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this Article.

3. Unless otherwise agreed to by the City and the Contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced.

4. The mediation shall be held no earlier than the date the Contractor completes the Work or the date that the Contractor last performs Work, whichever is earlier. All unresolved Claims shall be considered jointly in a single mediation, unless a new unrelated Claim arises after mediation is completed.

H. Procedures After Mediation. If following the mediation, the Claim or any portion remains in dispute, the Contractor must file a Claim pursuant to Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of 480
D&C 23-014 OPD RTIC & T.I. Improvements -86- SECTION 00700 – GENERAL CONDITIONS Part 3 of Division 3.6 of Title 1 of the Government Code prior to initiating litigation.

For purposes of those provisions, the running of the period of time within which a Claim must be filed shall be tolled from the time the Contractor submits his or her written Claim pursuant to subdivision (a) until the time the Claim is denied, including any period of time utilized by the meet and confer conference.

I. Civil Actions. The following procedures are established for all civil actions filed to resolve Claims of $375,000 or less:

1. Within 60 Days, but no earlier than 30 Days, following the filing or responsive pleadings, the court shall submit the matter to non-binding mediation unless waived by mutual stipulation of both parties or unless mediation was held prior to commencement of the action in accordance with Public Contract Code section 9204 and the terms of this Contract. The mediation process shall provide for the selection within 15 Days by both parties of a disinterested third person as mediator, shall be commenced within 30 Days of the submittal, and shall be concluded within 15 Days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court.

2. If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The Civil Discovery Act of 1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration. In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced in construction law, and (B) any party appealing an arbitration award who does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, also pay the attorney’s fees on appeal of the other party.

J. Government Code Claim Procedures.

1. This Article does not apply to tort claims and nothing in this Article is intended nor shall be construed to change the time periods for filing tort claims or actions specified by Chapter 1 (commending with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.5 of Title 1 of the Government Code.

2. In addition to any and all requirements of the Contract Documents pertaining to notices of and requests for adjustment to the Contract Time, Contract Price, or compensation or payment for Additional Work, disputed Work, construction claims and/or changed conditions, the Contractor must comply with the claim procedures set forth in Government Code Section 900, et seq. prior to filing any lawsuit against the City.

3. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved 481
D&C 23-014 OPD RTIC & T.I. Improvements -87- SECTION 00700 – GENERAL CONDITIONS after all procedures pertaining to adjustment of the Contract Time or Contract Price for Additional Work, disputed Work, construction claims, and/or changed conditions have been followed by Contractor. If Contractor does not comply with the Government Code claim procedure or the prerequisite contractual requirements, Contractor may not file any action against the City.

4. A Government Code claim must be filed no earlier than the date the Work is completed or the date the Contractor last performs Work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved Claims known to Contractor or that should reasonably by known to Contractor excepting only new unrelated Claims that arise after the Government Code claim is submitted.

K. Non-Waiver. The City’s failure to respond to a Claim from the Contractor within the time periods described in this Article or to otherwise meet the time requirements of this Article shall result in the Claim being deemed rejected in its entirety, and shall not constitute a waiver of any rights under this Article.

ARTICLE 10 - MEASUREMENT; PAYMENT

10.1 Cost Breakdown.

A. Lump Sum Work.

1. Contractor shall furnish on forms approved by the City within ten (10) Days of the Notice to Proceed, a schedule of values allocating the entire Contract Price to the various portions of the Work and prepared in such a form and supported by such data to substantiate its accuracy as the Engineer may require. This schedule of values, unless objected to by the Engineer, shall be used as a basis for reviewing the Contractor’s applications for payment. Contractor shall submit the schedule of values prior to submitting its first application for payment, and the City will not issue any payment until it receives and approves the schedule of values.

B. Unit Price Work.

1. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the unit price for each separately identified item of Unit Price Work multiplied by the estimated quantity of each item as indicated in the Contract. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Each unit price will be deemed to include an amount considered by Contractor to be adequate to cover Contractor’s overhead and or profit for each separately identified item.

2. Unless otherwise specified, payment will be based on the actual quantities of Work as verified and approved by the Engineer, based on the price per unit as set forth in the Bid.
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D&C 23-014 OPD RTIC & T.I. Improvements -88- SECTION 00700 – GENERAL CONDITIONS

3. The City or Contractor may initiate a Change Order or Change Order Request to adjust the Contract Price in accordance with Contractor Documents based on actual quantities of Unit Price Work. The City or Contractor may make a claim for an adjustment in the Unit Price in accordance with the Contract Documents if:
a. the quantity of any item of Unit Price Work performed by Contractor differs by twenty-five percent (25%) or more from the estimated quantity of such item indicated in the Contract; and
b. there is no corresponding adjustment with respect to any other item of Work; and c. Contractor believes that Contractor is entitled to an increase in unit price as a result of having incurred additional expense or the City believes that the City is entitled to a decrease in unit price and the parties are unable to agree as to the amount of any such increase or decrease.

10.2 Progress Estimates and Payment.

A. By the tenth (10th) Day of the following calendar month, Contractor shall submit to Engineer a payment request which shall set forth in detail the value of the Work done for the period beginning with the date Work was first commenced and ending on the end of the calendar month for which the payment request is prepared. Contractor shall include an adjusted list of actual quantities, verified by the Engineer, for unit price items listed, if any, in the Bid. Contractor shall include any amount earned for authorized Additional Work. Contractor shall certify under penalty of perjury, that all cost breakdowns and periodic estimates accurately reflect the Work on the Project.

B. From the total thus computed, a deduction shall be made in the amount of five percent (5%) for retention, except where the City has adopted a finding that the Work done under the Contract is substantially complex, and then the amount withheld as retention shall be the percentage specified in the Notice Inviting Bids. From the remainder a further deduction may be made in accordance with Section C below.

The amount computed, less the amount withheld for retention and any amounts withheld as set forth below, shall be the amount of the Contractor’s payment request.

C. The City may withhold a sufficient amount or amounts of any payment or payments otherwise due to Contractor, as in its judgment may be necessary to cover:

1. Payments which may be past due and payable for just claims against Contractor or any Subcontractors for labor or materials furnished in and about the performance of work on the Project under this Contract.

2. Defective work not remedied.

3. Failure of Contractor to make proper payments to his Subcontractor or for material or labor.

4. Completion of the Contract if there is a reasonable doubt that the Work can be completed for balance then unpaid.
483
D&C 23-014 OPD RTIC & T.I. Improvements -89- SECTION 00700 – GENERAL CONDITIONS

5. Damage to another contractor or a third party.

6. Amounts which may be due the Count for claims against Contractor.

7. Failure of Contractor to keep the Record Drawings up to date.

8. Failure to provide update on construction schedule as required herein.

9. Site cleanup.

10. Failure to comply with Contract Documents.

11. Liquidated damages.

12. Legally permitted penalties.

D. The City may apply such withheld amount or amounts to payment of such claims or obligations at its discretion with the exception of subsections (C)(1), (3), and (5) of this Article, which must be retained or applied in accordance with applicable law. In so doing, the City shall be deemed the agent of Contractor and any payment so made by the City shall be considered as a payment made under contract by the City to Contractor and the City shall not be liable to Contractor for such payments made in good faith. Such payments may be made without prior judicial determination of claim or obligations. The City will render Contractor a proper accounting of such funds disbursed on behalf of Contractor.

E. Upon receipt, the Engineer shall review the payment request to determine whether it is undisputed and suitable for payment. If the payment request is determined to be unsuitable for payment, it shall be returned to Contractor as soon as practicable but not later than seven (7) Days after receipt, accompanied by a document setting forth in writing the reasons why the payment request is not proper. The City shall make the progress payment within 30 Days after the receipt of an undisputed and properly submitted payment request from Contractor, provided that a release of liens and claims has been received from the Contractor pursuant to Civil Code section 8132. The number of days available to the City to make a payment without incurring interest pursuant to this paragraph shall be reduced by the number of Days by which the Engineer exceeds the seven (7) Day requirement.

F. A payment request shall be considered properly executed if funds are available for payment of the payment request and payment is not delayed due to an audit inquiry by the financial officer of the City.

G. The City shall have the right to adjust any estimate of quantity and to subsequently correct any error made in any estimate for payment.

10.3 Final Acceptance and Payment
A. Following the City’s acceptance of the Work, the Contractor shall submit to the City a written statement of the final quantities of unit price items for inclusion in the final 484
D&C 23-014 OPD RTIC & T.I. Improvements -90- SECTION 00700 – GENERAL CONDITIONS payment request. The City shall have the right to adjust any estimate of quantity and to correct any error made in any estimate for payment.

B. When the Work has been accepted there shall be paid to Contractor a sum equal to the Contract Price less any amounts previously paid Contractor and less any amounts withheld by the City from Contractor under the terms of the Contract. The final five percent (5%), or the percentage specified in the Notice Inviting Bids where the City has adopted a finding of substantially complete, shall not become due and payable until as required by Public Contract Code section 7107. If the Contractor has placed securities with the City as described herein, the Contractor shall be paid a sum equal to one hundred percent (100%) of the Contract Price less any amounts due the City under the terms of the Contract.

C. Unless Contractor advises the City in writing prior to acceptance of the final five percent (5%) or the percentage specified in the Notice Inviting Bids where the City has adopted a finding of completion, or the return of securities held as described herein, said acceptance shall operate as a release to the City of all claims and all liability to Contractor for all things done or furnished in connection with this Work and for every act of negligence of the City and for all other claims relating to or arising out of this Work. If Contractor advises the City in writing prior to acceptance of final payment or return of the securities that there is a dispute regarding the amount due the Contractor, the City may pay the undisputed amount contingent upon the Contractor furnishing a release of all undisputed claims against the City with the disputed claims in stated amounts being specifically excluded by Contractor from the operation of the release. No payments, however, final or otherwise, shall operate to release Contractor or its sureties from the Faithful Performance Bond, Labor and Material Payment Bond, or from any other obligation under this Contract.

D. In case of suspension of the Contract any unpaid balance shall be and become the sole and absolute property of the City to the extent necessary to repay the City any excess in the cost of the Work above the Contract Price.

E. Final payment shall be made no later than 60 Days after the date of acceptance of the Work by the City or the date of occupation, beneficial use and enjoyment of the Work by the City including any operation only for testing, start-up or commissioning accompanied by cessation of labor on the Work, provided that a release of liens and claims has been received from the Contractor pursuant to Civil Code section 8136.

In the event of a dispute between the City and the Contractor, the City may withhold from the final payment an amount not to exceed 150% of the disputed amount.

F. Within ten (10) Days from the time that all or any portion of the retention proceeds are received by Contractor, Contractor shall pay each of its Subcontractors from whom retention has been withheld each Subcontractor’s share of the retention received. However, if a retention payment received by Contractor is specifically designated for a particular Subcontractor, payment of the retention shall be made to the designated Subcontractor if the payment is consistent with the terms of the subcontract.
485
D&C 23-014 OPD RTIC & T.I. Improvements -91- SECTION 00700 – GENERAL CONDITIONS ARTICLE 11 -MISCELLANEOUS

11.1 Patents.

A. Contractor shall hold and save the City, officials, officers, employees, and authorized volunteers harmless from liability of any nature or kind of claim therefrom including costs and expenses for or on account of any patented or unpatented invention, article or appliance manufactured, furnished or used by Contractor in the performance of this Contract.

11.2 Document Retention & Examination
A. In accordance with Government Code section 8546.7, records of both the City and the Contractor shall be subject to examination and audit by the State Auditor General for a period of three (3) years after final payment.

B. Contractor shall make available to the City any of the Contractor’s other documents related to the Project immediately upon request of the City.

C. In addition to the State Auditor rights above, the City shall have the right to examine and audit all books, estimates, records, contracts, documents, bid documents, subcontracts, and other data of the Contractor (including computations and projections) related to negotiating, pricing, or performing the modification in order to evaluate the accuracy and completeness of the cost or pricing data at no additional cost to the City, for a period of four (4) years after final payment.

11.3 Notice.

A. All notices shall be in writing and either served by personal delivery or mailed to the other party. Written notice to the Contractor shall be addressed to Contractor’s principal place of business unless Contractor designates another address in writing for service of notice. Notice to the City shall be addressed to the City as designated in the Notice Inviting Bids unless the City designates another address in writing for service of notice. Notice shall be effective upon receipt or five (5) Days after being sent by first class mail, whichever is earlier. Notice given by facsimile shall not be effective unless acknowledged in writing by the receiving party.

11.4 Notice of Third Party Claims
A. Pursuant to Public Contract Code section 9201, the City shall provide the Contractor with timely notification of the receipt of any third-party claims relating to the Contract.

The City is entitled to recover reasonable costs incurred in providing such notification.

11.5 State License Board Notice
A. Contractors are required by law to be licensed and regulated by the Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent act or 486
D&C 23-014 OPD RTIC & T.I. Improvements -92- SECTION 00700 – GENERAL CONDITIONS omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O. Box 26000, Sacramento, California 95826.

11.6 Assignment of Contract
A. Contractor shall not assign, transfer, convey, sublet or otherwise dispose of the rights or title of interest of any or all of this contract without the prior written consent of the City. Any assignment or change of Contractor’s name of legal entity without the written consent of the City shall be void. Any assignment of money due or to become due under this Contract shall be subject to a prior lien for services rendered or material supplied for performance of Work called for under the Contract Documents in favor of all persons, firms, or corporations rendering such services or supplying such materials to the extent that claims are filed pursuant to the Civil Code, the Code of Civil Procedure or the Government Code.

11.7 Change In Name And Nature Of Contractor’s Legal Entity.

A. Should a change be contemplated in the name or nature of the Contractor’s legal entity, the Contractor shall first notify the City in order that proper steps may be taken to have the change reflected on the Contract and all related documents. No change of Contractor’s name or nature will affect the City’s rights under the Contract, including but not limited to the bonds.

11.8 Prohibited Interests
A. No City official or representative who is authorized in such capacity and on behalf of City to negotiate, supervise, make, accept, or approve, or to take part in negotiating, supervising, making, accepting or approving any engineering, inspection, construction or material supply contract or any subcontract in connection with construction of the project, shall be or become directly or indirectly interested financially in the Contract.

11.9 Controlling Law
A. Notwithstanding any subcontract or other contract with any subcontractor, supplier, or other person or organization performing any part of the Work, this Contract shall be governed by the law of the State of California excluding any choice of law provisions.

11.10 Jurisdiction; Venue
A. Contractor and any subcontractor, supplier, or other person or organization performing any part of the Work agrees that any action or suits at law or in equity arising out of or related to the bidding, award, or performance of the Work shall be maintained in the Superior Court of San Bernardino County, California, and expressly consent to the jurisdiction of said court, regardless of residence or domicile, and agree that said court shall be a proper venue for any such action.
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D&C 23-014 OPD RTIC & T.I. Improvements -93- SECTION 00700 – GENERAL CONDITIONS

11.11 Cumulative Remedies.

A. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Applicable Laws, by special warranty or guarantee, or by other provisions of the Contract Documents.

The provisions of this Article will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, and remedy to which they apply.

11.12 Survival of Obligations.

A. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion, and acceptance of the Work or termination or completion of the Contract or termination of the services of Contractor.

11.13 Headings.

A. Article and paragraph headings are inserted for convenience only and do not constitute parts of these General Conditions.

11.14 Assignment of Antitrust Actions
A. In accordance with §7103.5(b) of the California Public Contract Code, Contractor and Subcontractors must conform to the following requirements:

1. In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, Contractor or Subcontractor offer and agree to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under §4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with §16700) of Part 2 of Division 7 of the Business and Professions Code) arising from purchases of goods, services, or materials pursuant to the public works contract or the subcontract.

2. This assignment must be made and become effective at the time the awarding body tenders to Contractor, without further acknowledgment by the parties.

11.15 All Legal Provisions Included
A. Contractor shall give all notices and comply with all federal, state and local laws, ordinances, rules and regulations bearing on conduct of work as indicated and specified by their terms. References to specific laws, rules or regulations in this Contract are for reference purposes only, and shall not limit or affect the applicability of provisions not specifically mentioned. If Contractor observes that drawings and specifications are at variance therewith, he shall promptly notify City in writing and any necessary changes shall be adjusted as provided for in this Contract for changes in Work. If Contractor performs any Work knowing it to be contrary to such laws, 488
D&C 23-014 OPD RTIC & T.I. Improvements -94- SECTION 00700 – GENERAL CONDITIONS ordinances, rules and regulations, and without such notice to City, he shall bear all costs arising therefrom.

B. Contractor shall be responsible for familiarity with the Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12101 et seq.). The Work will be performed in compliance with ADA laws, rules and regulations. Contractor shall comply with the Historic Building Code, including, but not limited to, as it relates to the ADA, whenever applicable.

C. Contractor acknowledges and understands that, pursuant to Public Contract Code section 20676, sellers of "mined material" must be on an approved list of sellers published pursuant to Public Resources Code section 2717(b) in order to supply mined material for this Contract.

D. No City official or representative who is authorized in such capacity and on behalf of City to negotiate, supervise, make, accept, or approve, or to take part in negotiating, supervising, making, accepting or approving any engineering, inspection, construction or material supply contract or any subcontract in connection with construction of the Work, shall be or become directly or indirectly interested financially in the Contract.

E. All provisions of law required to be inserted in the Contract or Contract Documents pursuant to any Applicable Laws shall be and are inserted herein. If through mistake, neglect, oversight, or otherwise, any such provision is not herein inserted or inserted in improper form, upon the application of either party, the Contract or Contract Documents shall be changed by City, at no increase in Contract Price or extension in Contract Times, so as to strictly comply with the Applicable Laws and without prejudice to the rights of either party hereunder.
489
D&C 23-014 OPD RTIC & T.I. Improvements 95 PLANS AND DRAWINGS SECTION 00750 – SPECIAL CONDITIONS
ARTICLE 1 -SCOPE OF WORK

1.1 Location of the Project.

A. Ontario Police Department 2500 S Archibald Ave Ontario Ca 91761

1.2 Scope of Work.

A. The Scope of Work is outlined in the following documents:

1. Technical Specifications

2. OPD RTIC & TI Improvements permitted plans B202401312

3. Contractor will communicate and coordinate with Bay Alarm Fire for phasing of the scheduled fire notification system installation.

4. Contractor to provide noise impact management or after hours for high decibel tear out construction tasks and areas impacted by MEP work.

5. All Submittals delivered to City Project Manager 30 days prior to mobilization.

6. Contractor to coordinate live scan background check for all employees including subs 4-to-6-weeks prior to receiving “Notice to Proceed”.

7. Contractor will procure and coordinate all low voltage services for Caltek.

Contact: Patrick Fallesgon [email protected]

8. Contractor will procure and coordinate the services for Western Allied to assist with boiler shut down and recharging of the system. Western Allied – Contact Mike Gallagher [email protected]

9. Contractor will procure and coordinate abatement services outlined from discussion and recommendations from the DUDEK lead and asbestos report.

10. Contractor to coordinate the with City I.T. for county radio pathway and sequencing.

END OF SPECIAL CONDITIONS
490
D&C 23-014 OPD RTIC & T.I. Improvements 96 PLANS AND DRAWINGS

PLANS AND DRAWINGS
"THE FOLLOWING PLANS AND DRAWINGS ARE INCORPORATED HEREIN BY REFERENCE AS IF SET FORTH IN THEIR ENTIRETY:

1. Specifications prepared by Holt Architect “Uploaded on Planetbids”

2. OPD RTIC & TI Improvements permitted plans B202401312 “Uploaded on Planetbids” 491
Department: Public Works
Prepared By: Philip Marino
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Gina Gomez, Bonnie Tam
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 18
SUBJECT: MAINTENANCE SERVICES AGREEMENTS WITH MERCHANTS LANDSCAPE SERVICES, INC. FOR WEED ABATEMENT SERVICES IN THE QUIET HOME AREA (PART 150) AND THE ONTARIO RANCH AREA

CITY OF ONTARIO
Agenda Report
August 20, 2024
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council take the following actions:

A. Authorize the City Manager, or his designee, to execute a Maintenance Services Agreement for Contract No. PM 2425-17 Quiet Home Area (Part 150) for Weed Abatement services with Merchants Landscape Services, Inc., of Rancho Cucamonga, California, for a total contract amount not-to-exceed $681,348 for up to five (5) years; and B. Authorize the City Manager, or his designee, to execute a Maintenance Services Agreement for Contract No. PM 2425-18 Ontario Ranch Weed Abatement Services with Merchants Landscape Services, Inc., of Rancho Cucamonga, California, for a total contract amount notto-exceed $805,386 for up to five (5) years.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT:

Quiet Home Area (Part 150)
The recommended contract award to Merchants Landscape Services, Inc., is for $387,000 plus urgency services in an amount of $14,760 for a total not-to-exceed contract amount of $401,760 over the three-year term. Two (2) one-year extensions may be exercised at the City's sole discretion for an additional contract amount of $269,748 plus urgency services in an amount of $9,840 for a total contract amount not-to-exceed $681,348. The Fiscal Year 2024-25 Adopted Budget includes appropriations in the General Fund for the Maintenance Services Agreement with Merchants Landscape Services, Inc.
492
Ontario Ranch Weed Abatement
The recommended contract award to Merchants Landscape Services, Inc., is for $459,000 plus urgency services in an amount of $15,840, for a total not-to-exceed contract amount of $474,840 over the three-year term. Two (2) one-year extensions may be exercised at the City's sole discretion for an additional contract amount of $319,986 plus urgency services in an amount of $10,560 for a total contract amount not-to-exceed $805,386. The Fiscal Year 2024-25 Adopted Budget includes appropriations in the General Fund for the Maintenance Services Agreement with Merchants Landscape Services, Inc.

BACKGROUND & ANALYSIS:

Quiet Home Area (Part 150)
The City-owned Quiet Home Area (Part 150) consists of undeveloped parcels that require regular weed abatement services. These services also include removal of trash and tree maintenance. The Economic Development Department has acquired these properties, and they require maintenance until they are sold or developed.

In July 2024, the City solicited proposals for Bid No. 1815, Landscape Maintenance Services for the Quiet Home Area (Part 150). The four (4) proposals received met the bid criteria and standards necessary to perform this work.

Vendor Location
BrightView Landscape Services, Inc. Upland, CA
Mariposa Landscapes, Inc. Irwindale, CA
Merchants Landscape Services, Inc. Rancho Cucamonga, CA Pest Options, Inc. Fullerton, CA
Merchants Landscape Services, Inc., of Rancho Cucamonga, California, submitted a proposal that met all the required specifications with a total contract cost of $387,000 over a three-year term.

Based on their proposal, credentials, pricing, and favorable reference checks, Staff recommends awarding the Maintenance Services Agreement to Merchants Landscape Services, Inc.

Ontario Ranch Weed Abatement
The Ontario Ranch Weed Abatement involves maintaining undeveloped City right-of-way in the Ontario Ranch area that requires routine weed abatement services. These areas receive regular maintenance until there is development in the right-of-way.

In July 2024, the City solicited proposals for Bid No. 1816, Landscape Maintenance Services for the Ontario Ranch Weed Abatement. The four (4) proposals received met the bid criteria and standards necessary to perform this work.
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Vendor Location
BrightView Landscape Services, Inc. Upland, CA
Mariposa Landscapes, Inc. Irwindale, CA
Merchants Landscape Services, Inc. Rancho Cucamonga, CA Pest Options, Inc. Fullerton, CA
Merchants Landscape Services, Inc., of Rancho Cucamonga, California, submitted a proposal that met all the required specifications with a total contract cost of $459,000 over a three-year term.

Based on their proposal, credentials, pricing, and favorable reference checks, Staff recommends awarding the Maintenance Services Agreement to Merchants Landscape Services, Inc. 494
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CITY OF ONTARIO

MAINTENANCE SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764-4196, County of San Bernardino, State of California ("City") and Merchants Landscape Services, Inc., a Corporation with its principal place of business at 1510 S. Lyon St. Santa Ana, CA 92705 ("Contractor").

City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. RECITALS.

2.1 Contractor.

Contractor desires to perform and assume responsibility for the provision of certain maintenance services required by the City on the terms and conditions set forth in this Agreement.

Contractor represents that it is experienced in providing Landscape Maintenance Services for Ontario Ranch Weed Abatement services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the Services in the State of California, and that is familiar with the plans of City.

2.2 Project.

City desires to engage Contractor to render such services for Landscape Maintenance Services for Ontario Ranch Weed Abatement project (“Project”) as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Term.

3.1.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the maintenance services necessary for the Project (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.

3.1.2 Term. The term of this Agreement shall be from September 1, 2024 to June 30, 2027, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two (2) additional one-year terms. Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. 495
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The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.

3.2 Compensation.

3.2.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Four Hundred Fifty-Nine Thousand Dollars with Zero Cents ($459,000) without written approval of City’s City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

3.2.2 Payment of Compensation. Contractor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Contractor. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon.

3.2.3 Deductions. City may deduct or withhold, as applicable, from each progress payment an amount necessary to protect City from loss because of: (1) stop payment notices as allowed by state law; (2) unsatisfactory prosecution of the Services by Contractor; (3) sums representing expenses, losses, or damages as determined by the City, incurred by the City for which Contractor is liable under the Agreement; and (4) any other sums which the City is entitled to recover from Contractor under the terms of the Agreement or pursuant to state law, including Section 1727 of the California Labor Code. The failure by the City to deduct any of these sums from a progress payment shall not constitute a waiver of the City's right to such sums.

3.2.4 Reimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless authorized in writing by City.

3.2.5 Extra Work. At any time during the term of this Agreement, City may request that Contractor perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement.

Contractor shall not perform, nor be compensated for, Extra Work without written authorization from City’s Representative.

3.3 Responsibilities of Contractor.

3.3.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Contractor or under its supervision. Contractor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Contractor on an independent contractor basis and not as an employee.

Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income 496
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tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

3.3.2 Schedule of Services. Contractor shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit “B” attached hereto and incorporated herein by reference. Contractor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Contractor’s conformance with the Schedule, City shall respond to Contractor’s submittals in a timely manner. Upon request of City, Contractor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.

3.3.3 Conformance to Applicable Requirements. All work prepared by Contractor shall be subject to the approval of City.

3.3.4 City’s Representative. The City hereby designates Philip Marino, Urban Forestry Manager, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Agreement except for increasing compensation. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

3.3.5 Contractor’s Representative. Contractor hereby designates Mark Brower, President, or his or her designee, to act as its representative for the performance of this Agreement (“Contractor’s Representative”). Contractor’s Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement. The Contractor’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.

3.3.6 Coordination of Services. Contractor agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, consultants and other staff at all reasonable times.

3.3.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor’s failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub-contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to 497
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the City, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.

3.3.8 Period of Performance

3.3.8.1 Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Contractor shall perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be provided separately in writing to the Contractor. Contractor agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such completion schedule or Project milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum of Two Hundred Ten Dollars with Zero Cents ($210) per day for each and every calendar day of delay beyond the Performance Time or beyond any completion schedule or Project milestones established pursuant to this Agreement.

3.3.8.2 Neither City nor Contractor shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the Services, only to the extent such strikes and other organized labor action are beyond the control of Contractor and its subconsultants, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the Services and Agreement.

3.3.8.3 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Contractor to any additional compensation.

Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.

3.3.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Contractor may be required to do, or respecting the size of any payment to Contractor during the performance of this Contract, Contractor shall continue to perform the Work while said dispute is decided by the City. If Contractor disputes the City’s decision, Contractor shall have such remedies as may be provided by law.

3.3.10 Laws and Regulations; Employee/Labor Certifications. 498
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3.3.10.1 Compliance with Laws. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours’ labor shall constitute a legal day’s work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by law. Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

3.3.10.2 Employment Eligibility; Contractor. By executing this Agreement, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Contractor.

Contractor also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Contractor shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Contractor shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Contractor’s compliance with the requirements provided for in Section 3.3.10 or any of its subsections.

3.3.10.3 Employment Eligibility; Subcontractors, Sub-subcontractors and Consultants. To the same extent and under the same conditions as Contractor, Contractor shall require all of its subcontractors, sub-subcontractors and consultants performing any work relating to the Project or this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 3.3.10.1.

3.3.10.4 Employment Eligibility; Failure to Comply. Each person executing this Agreement on behalf of Contractor verifies that they are a duly authorized officer of Contractor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Contractor or its subcontractors, sub-subcontractors or consultants to meet any of the requirements provided for in Sections 3.3.10.1 or 3.3.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Contractor under Section 3.3.10.2); or (3) failure to 499
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immediately remove from the Project any person found not to be in compliance with such requirements.

3.3.10.5 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Contractor shall also comply with all relevant provisions of City’s Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.3.10.6 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Contractor shall specifically be aware of the CARB limits and requirements’ application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement.

3.3.10.7 Water Quality.
(A) To the extent applicable, Contractor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the Colorado River Regional Water Quality Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State. (B) Liability for Non-Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Contractor or City to penalties, fines, or additional regulatory requirements. Contractor shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Contractor’s non-compliance with the laws, regulations and policies described in this Section, unless such non-compliance is the result of the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. (C) Training. In addition to any other standard of care requirements set forth in this Agreement, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and 500
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policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Contractor with a list of training programs that meet the requirements of this paragraph.

3.3.11 Insurance.

3.3.11.1 Time for Compliance. Contractor shall not commence Services under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Section.

3.3.11.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Contractor, its agents, representatives, employees or subcontractors.

Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
(A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability:

Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another. (B) Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits.
(C) Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be 501
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promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Agreement. (D) Additional Insured. The City, its directors, officials, officers, employees, agents, and volunteers shall be named as additional insureds on Contractor’s and its subcontractors’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.

3.3.11.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
(A) General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements providing the exact same coverage, the City of Ontario, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insured with respect to the Services or ongoing and complete operations performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of the City, before the City’s own primary insurance, deductible, or self-insurance shall be called upon to protect it as a named insured. Any insurance, deductible, or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Contractor’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section 3.3.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.3.11.3(A).
(B) Automobile Liability. The automobile liability policy shall include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Contractor or for which the Contractor is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor’s scheduled underlying coverage. Any insurance, deductible, or selfinsurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Contractor’s insurance and shall not be called upon to contribute with it in any way. Policy shall contain or be endorsed to contain such provisions. Notwithstanding the minimum limits set forth in Section 3.3.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.3.11.3(B). (C) Workers’ Compensation and Employer’s Liability Coverage.

The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents, and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Contractor. 502
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(D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents, and volunteers.

Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officials, officers, employees, agents and volunteers, or any other additional insureds.

3.3.11.4 Separation of Insureds; No Special Limitations; Waiver of Subrogation. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers.

Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. All policies shall waive any right of subrogation of the insurer against the City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, and shall require similar written express waivers and insurance clauses from each of its subcontractors.

3.3.11.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. Contractor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Contractor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.

3.3.11.6 Subcontractor Insurance Requirements. Contractor shall not allow any subcontractors to commence work on any subcontract relating to the work under the Agreement until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. If requested by Contractor, the City may approve different scopes or minimum limits of insurance for particular subcontractors. The Contractor and the City shall be named as additional insureds on all subcontractors’ policies of Commercial General Liability using ISO form 20 38, or coverage at least as broad.

3.3.11.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the City.

3.3.11.8 Verification of Coverage. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 503
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3.3.11.9 Reporting of Claims. Contractor shall report to the City, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the Services under this Agreement.

3.3.12 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.

3.3.13 Bonds.

3.3.13.1 Performance Bond. If required by law or otherwise specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Agreement a Performance Bond in the amount of the total, not-to-exceed compensation indicated in this Agreement, and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until it has been received and approved by the City.

3.3.13.2 Payment Bond. If required by law or otherwise specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Agreement a Payment Bond in the amount of the total, not-to-exceed compensation indicated in this Agreement, and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until it has been received and approved by the City.

3.3.13.3 Bond Provisions. Should, in City’s sole opinion, any bond become insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the affected bond within 10 days of receiving notice from City. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Agreement until any replacement bonds required by this Section are accepted by the City. To the extent, if any, that the total compensation is increased in accordance with the Agreement, the Contractor shall, upon request of the City, cause the amount of the bonds to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the City. To the extent available, the bonds shall further provide that no change or alteration of the Agreement (including, without limitation, an increase in the total compensation, as referred to above), extensions of time, or modifications of the time, terms, or conditions of payment to the Contractor, will release the surety. If the Contractor fails to furnish any required bond, the City may terminate this Agreement for cause.

3.3.13.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, shall be accepted. The 504
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surety must be a California-admitted surety with a current A.M. Best’s rating no less than A:VIII and satisfactory to the City. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.

3.3.14 Work Site.

3.3.14.1 Inspection Of Site. Contractor shall visit sites where Services are to be performed and shall become acquainted with all conditions affecting the Services prior to commencing the Services. Contractor shall make such examinations as it deems necessary to determine the condition of the work sites, its accessibility to materials, workmen and equipment, and to determine Contractor’s ability to protect existing surface and subsurface improvements. No claim for allowances–time or money–will be allowed as to such matters after commencement of the Services.

3.3.14.2 Field Measurements. Contractor shall make field measurements, verify field conditions and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents, including any plans, specifications, or scope of work before commencing Services. Errors, inconsistencies or omissions discovered shall be reported to the City immediately and prior to performing any Services or altering the condition.

3.3.15 Loss and Damage. Contractor shall be responsible for all loss and damage which may arise out of the nature of the Services agreed to herein, or from the action of the elements, or from any unforeseen difficulties which may arise or be encountered in the prosecution of the Services until the same is fully completed and accepted by City.

3.3.16 Warranty. Contractor warrants all Services under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Services or non-conformance of the Services to the Contract, commence and prosecute with due diligence all Services necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by its defective Services or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been 505
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transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.

3.4 Labor Code Requirements.

3.4.1 Prevailing Wages. Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the project site. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

3.4.2 Registration/DIR Compliance. If the Services are being performed as part of an applicable “public works” or “maintenance” project, and if the total compensation is $15,000 or more, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable.

3.4.3 Registration/DIR Compliance. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Services, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor. 506
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3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

3.5 Termination of Agreement.

3.5.1 Grounds for Termination. City may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Contractor shall be compensated only for those services which have been adequately rendered to City, and Contractor shall be entitled to no further compensation. Contractor may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.

3.5.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Contractor to provide all finished or unfinished Documents and Data and other information of any kind prepared by Contractor in connection with the performance of Services under this Agreement. Contractor shall be required to provide such document and other information within fifteen (15) days of the request.

3.5.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.6 Indemnification.

3.6.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its officials, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s Services, the Project or this Agreement, including without limitation the payment of all expert witness fees, attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Contractor’s indemnity obligation shall not apply to such loss or damage which is caused by the sole or active negligence or willful misconduct of the City.

3.6.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such 507
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claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and volunteers.

3.7 General Provisions.

3.7.1 Accounting Records. Contractor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.

3.7.2 Independent Contractors and Subcontracting.

3.7.2.1 Use of Contractors. Contractor is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018). To ensure that Contractor is in compliance with the California Labor Code, Contractor shall only utilize its employees to provide the Services. Contractor may not provide the services through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless approved by the City as set forth in Section 3.7.2.2 below. Contractor represents and warrants that all personnel who perform the Services on Contractor’s behalf are Contractor’s employees, and that Contractor complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.

3.7.2.2 Prior Approval Required. Contractor shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Contractor to use a Subcontractor, Contractor shall enter into a written agreement with the Subcontractor, which must include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subconsultants without the City’s prior written consent.

3.7.3 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:

Contractor:

Merchants Landscape Services, Inc.
1510 S. Lyon St.

Santa Ana, CA 92705
Attn: Mark Brower, President
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City:

City of Ontario
303 East “B” Street
Ontario, CA 91764
Attn: Philip Marino, Urban Forestry Manager
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.7.4 Governing Law; Government Code Claim Compliance. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.

In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Contractor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Contractor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor shall be barred from bringing and maintaining a valid lawsuit against the City.

3.7.5 Attorneys’ Fees. If either Party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all other costs of such action.

3.7.6 Time of Essence. Time is of the essence for each and every provision of this Agreement.

3.7.7 City’s Right to Employ Other Contractors. City reserves right to employ other contractors in connection with this Project.

3.7.8 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.

3.7.9 Assignment or Transfer. Contractor shall not assign, hypothecate or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.

3.7.10 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease 509
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of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.

3.7.11 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

3.7.12 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.

3.7.13 No Third Party Beneficiaries. Except to the extent expressly provided for in Section 3.5.7, there are no intended third party beneficiaries of any right or obligation assumed by the Parties.

3.7.14 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.7.15 Prohibited Interests. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Contractor further agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

3.7.16 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.

3.7.17 Authority to Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.

3.7.18 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

3.7.19 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
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SIGNATURES NEXT PAGE
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SIGNATURE PAGE FOR MAINTENANCE SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO
AND MERCHANTS LANDSCAPE SERVICES, INC.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

CITY OF ONTARIO Merchants Landscape Services, Inc.

By:

Its:

Printed Name:

By:

Its:

Printed Name:
____________________________________
Contractor’s License Number and
Classification
____________________________________
DIR Registration Number
Approved By:

Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:

City Clerk
[If Corporation, TWO SIGNATURES,
President OR Vice President AND
Secretary OR Treasurer REQUIRED]
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EXHIBIT “A”

SCOPE OF SERVICES

1. SCOPE OF WORK
A. The intent of this Agreement is to secure a contractor(s) who shall provide Landscape Maintenance Services for Ontario Ranch Weed Abatement PM 2425-18 B. The Contractor shall furnish all labor, tools, materials, and equipment to provide the landscape maintenance and repairs as set forth in this Agreement.

C. All Work shall be done in a professional, thorough, and workman like manner to the satisfaction of the Parks and Maintenance Director, or his/her authorized agent, and comply with all legal construction and landscape maintenance practices. The premises shall always be maintained at the level of service provided for in these specifications. The Contractor shall have the duty to provide complete landscape maintenance of all the project areas, including, but not limited to, the following: Fertilize, under-trim trees and shape shrubs, trim ground cover areas, mow, and edge turf grass areas. Consistently maintain the project areas with horticulturally acceptable growth and color. Consistently maintain the project areas to be devoid of weeds.

Consistently maintain the project areas to be devoid of weeds five (5) feet out into the curb, gutter and street. Consistently maintain the project areas to be devoid of diseases, rodents and pests. Consistently maintain the project areas to be devoid of litter. Consistently maintain the project areas to be devoid of safety hazards. Consistently maintain the project areas to be devoid of unsafe walkways. Consistently maintain the project areas to be devoid of blocked drainage systems. Consistently maintain the project areas to be devoid of malfunctioning irrigation systems. Consistently maintain the project areas to be devoid of graffiti and paper like signs. Program, monitor, adjust and maintain all irrigation system clocks, and perform extra work as directed and approved.

D. The Contractor shall be available twenty-four (24) hours a day, seven (7) days a week to respond to all emergencies within two (2) hours of notification. Emergencies that involve maintenance work included in these general conditions shall not be compensated.

E. The Contractor shall perform a weekly maintenance inspection, during daylight hours, of all areas. Such inspection shall be both visual and operational. It shall include, but not be limited 513
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to, the operation of all irrigation and/or other mechanical systems to check for proper condition and reliability.

2. WORK SITE
Work sites may include parks, medians, trails, weed abatement areas, and parkways.

The City reserves the right to make additions or deletions under this contract with written notice to the Contractor. The monthly compensation shall be adjusted by the monthly unit cost per square foot if any changes result in an increase or reduction in square footage maintained.

Compensation shall be based on a-per unit cost (bid schedule form submitted) of work completed.

3. LENGTH OF CONTRACT
This PRIMARY contract shall begin September 1, 2024 and shall terminate on June 30, 2027.

The FIRST optional extension may be granted for a term of TWELVE (12) MONTHS, from July 1, 2027, through June 30, 2028, and any proposed increase shall be no greater than the CPI (Consumer Price Index) for the Ontario area, measured performance of the contractor and funding renewal.

The SECOND optional extension may be granted for a term of TWELVE (12) MONTHS, from July 1, 2028, through June 30, 2029, and any proposed increase shall be no greater than the CPI (Consumer Price Index) for the Ontario area, measured performance of the contractor and funding renewal.

All optional extensions of the contract are subject to approval by the City Manager, or his authorized agent and are contingent upon funding and performance by the Contractor.

4. DEFINITIONS
Where "as directed", "as required", "as permitted", "approved", "acceptance", or words of similar importance are used, it shall be understood that the direction, requirement, permission, approval or acceptance of the Parks and Maintenance Director, or his authorized agent, is intended unless otherwise stated.
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The use of the word "Contractor" shall be held to mean the Contractor and/or any person employed by the City of Ontario, Parks and Maintenance Director, or his/her authorized agent and working under this contract.

The use of the words "shall" and "may" shall be held to mean "mandatory" and "permissive" respectively.

The use of the words "his" or "him" shall be construed to mean either gender, as appropriate.

The use of the words " Parks and Maintenance Director " shall be construed to mean either the Parks and Maintenance Director or his authorized agent(s).

The words "City working day" refers to Monday-Friday, 6:30 a.m. to 4:00 p.m.

5. VANDALISM/THEFT/DAMAGE
Contractor shall be responsible for performing maintenance, repairs, and replacement of existing landscaped areas which are maintained under this contract and damaged or altered in any way as a result of theft, vandalism or mysterious damages that do not result from the performance of the Contractor.

In the case of vandalism to the maintained areas (Damage by Unknown Circumstances), Contractor shall notify the City within 24 hours using the free myOntario App. Graffiti will be entered under the “graffiti “Tab. All other Vandalism will be entered under the “Parks” Tab. In addition, EXCEPT in the case of graffiti, a text or email must be sent to the City’s Representative within 24 Hours detailing the Vandalism.

The use of red "Danger" tape shall be used when an area is unsafe for the public by the end of workday.

The repairs shall be made within 24 hours of receiving a notice to proceed by text or email. At no time shall damage by unknown sources remain unrepaired for a period exceeding 72 hours.

Additional compensation will be provided only for costs that are directly related to the theft and/or vandalism.

The following conditions shall be met prior to the Contractor being reimbursed for "Damage by Unknown Circumstances".
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6. VANDALISM/THEFT/DAMAGE BIDS
Contractor shall submit an itemized EWA (Extra Work Authorization) within 24 hours to the City’s Representative. Contractor shall secure written authorization for the repairs by the Parks and Maintenance Director, or his authorized agent within twenty-four (24) hours by e- mail or text. For emergencies regarding public safety, a verbal or text approval by the Parks and Maintenance Director, or his authorized agents, may be obtained.

7. COMPLETION OF PROPOSED VANDALISM/THEFT/DAMAGE WORK
A. Work is to commence within twenty-four (24) hours after receiving City approval.

B. The work shall be inspected and released as complete by the City representative, and then invoiced as specified in section (8). ·

8. INVOICING OF PROPOSED VANDALISM/THEFT/DAMAGE WORK
A. Contractor shall submit on business letterhead, a photocopy of the original EWA describing individual material costs and an invoice with line items for material costs, labor costs and administrative costs. The cost estimate for additional work shall consist of the following elements: Base cost of labor plus Fifteen percent (15%) for overhead and profit. Actual cost of materials plus fifteen percent (15%) for overhead and profit. City reserves the right to ask for payroll records and vendor invoice if discrepancies on the bid exist. Materials may be provided by the City of Ontario.

B. Contractor shall submit a copy of a report filed with the City of Ontario Police Department, which relates to the specific incident if required by the Parks and Maintenance Director or his authorized agent.

9. ADDITIONAL (EXTRA) WORK (EXTRA WORK AUTHORIZATION or EWA) A. The Parks and Maintenance Director, or his authorized agent, may, at his discretion, authorize the Contractors to perform additional work. Additional work (work not related to "Damages by Unknown Circumstances") shall be defined as work not included in this Agreement.

B. Prior to the Contractor performing any additional work, the Contractor shall prepare and submit a written description of why the additional work is required, what type of work is proposed, and a cost estimate for the additional work as stated. No work shall commence 516
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without written authorization from the Parks and Maintenance Director, or his authorized agent.

Notwithstanding the above authorization, when a condition exists where there is imminent danger of injury to the public or damage to property, the Parks and Maintenance Director, or his authorized agent may verbally authorize the work to be performed upon receiving a verbal estimate from the Contractor. However, within twenty-four (24) hours after receiving a verbal authorization, the Contractor shall submit a written estimate to the Parks and Maintenance Director, or his authorized agent, for approval.

C. The cost estimate for additional work shall consist of the following elements:

Base cost of labor plus fifteen percent (15%) for overhead and profit.

Actual cost of materials plus fifteen percent (15%) for overhead and profit (invoice from vendor shall be attached to each invoice turned in for payment).

City reserves the right to ask for payroll records. Materials may be provided by the City of Ontario.

D. Written authorization from the Parks and Maintenance Director, or his authorized agent, shall be by the issuance of a change order or signed bid. This change order or signed bid shall be considered an amendment to this Agreement and approved by the Parks and Maintenance Director, or his authorized agent, and Contractor.

E. All additional work shall commence on the agreed date and shall diligently proceed until completion. Contractor could use the labor force assigned to the contractual maintenance tasks to perform additional work if prior approval has been granted by the City representative.

F. Upon completion of the additional work, the Parks and Maintenance Director, or his authorized agent, shall be notified so that the work may be verified.

G. The Contractor shall submit an invoice for compensation with attached photocopies of original invoices for materials and a copy of signed bid. Compensation shall not exceed the written estimate. The Contractor's invoice shall be subject to audit and review by the City prior to payment.

H. The City of Ontario reserves the right to repair or contract with a third Party to perform such additional work (if bids are not received within 72 hours of official request and or if the proposed costs do not concur with contractor's labor rates and cost of materials) 517
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10. CONTRACTOR LIABILITY
A. All damage to existing improvements located within areas and adjacent to areas under construction, which in the opinion of the Parks and Maintenance Director, or his authorized agent, are due to the Contractor's operation, shall be repaired or replaced at the Contractor's expense with exact (existing) materials and in an approved manner.

B. Such repairs or replacements shall be performed by the Contractor at no cost to the City and shall be accomplished as directed by the Parks and Maintenance Director or his/her authorized agent. Repairs shall be made immediately after damage or alteration occurs.

Deductions shall be made from the Contractor's payments in the amount necessary to compensate the City for such repairs in the event such repair work is done by City forces, or another source.

C. Irrigation damage shall be repaired or replaced within the following time limits: Irrigation entities such as, but not limited to, (risers, heads, backflow device and cages, controllers, basket strainers, pressure regulators, irrigation wires and valves, valve boxes, irrigation pumps, ET gagues, rain buckets, antennas, flow sensors, and landscape lighting equipment) that are damaged during regular routine maintenance and become non- functional or non-efficient shall be replaced immediately. Mainline irrigation breaks shall be repaired within two (2) hours of being notified. All other irrigation repair and/or replacement shall be completed within 24 hours of being notified. (In the event that the mainline repairs require specialized parts and or materials, the contractor shall be responsible to request from the City additional time to complete the repair/s)
D. All damage to turf grass, groundcover, shrubs or trees, shall be repaired or replaced within three (3) working days of being notified. Damage to turf shall be repaired by replacement with the appropriate variety of bermudagrass sod or seeded with warm season seed and topper added. Damage to groundcover shall be repaired by replacement with the appropriate variety of plant material. Size and spacing shall be determined by the Parks and Maintenance Director, or his authorized agent. Damage to shrubs may be corrected by appropriate pruning; however, if in the opinion of the Parks and Maintenance Director, or his authorized agent, the damage is severe, the shrub (in its entirety) shall be removed and replaced with a similar variety and size. 518
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Ex. A - 7 (BB&K 2020)
E. Damage to trees shall be repaired in the following manner:

Minor damage, such as bark lost from mechanical equipment shall be remedied by a certified Arborist. If the damage results in the loss of the tree, or, if in the opinion of the Parks and Maintenance Director or his authorized agent, the damage is severe, the damaged tree shall be removed and replaced with a similar variety and size. All damage resulting from chemical application and/or operation, either by spray-drift, improper application, lateral leaching, or other means shall be corrected in accordance with the previous provisions and the soil conditioned to ensure its ability to support plant life. All work shall be inspected, verified, and completed to the satisfaction of the Parks and Maintenance Director, or his authorized agent.

11. INSPECTION/DRIVE
The City and an appointed representative of the Contractor shall conduct a once a month walkthrough to inspect each individual work area. It is the responsibility of the Contractor to set up the inspection time(s) five (5) working days prior to the walkthrough/inspection. It is a requirement that a six to twelve (6-12) month master calendar be set up within 30 days of the award of the contract to insure coordinated dates of inspection. This inspection is to ensure adequacy of maintenance, methods of performing the work are in compliance with the contract and allow all deficiencies to be corrected prior to invoice submission and payment. However, this shall not be construed to relieve the Contractor of the duty to provide continuous inspection of individual work areas. Discrepancies and deficiencies in the Contractor's work shall be brought to the attention of the Contractor and corrected in the manner prior to invoicing and payment.

12. HAZARDOUS CONDITIONS
It shall be the Contractor's responsibility to inspect, and identify, any condition(s) that renders any areas within this Agreement unsafe, as well as any unsafe practices occurring thereon. The Parks and Maintenance Director, or his authorized agent, shall be notified immediately using the myOntario App, as well as text or phone call, of any unsafe condition that requires major correction.

The Contractor shall be responsible for making minor corrections including, but not limited to, filling holes in landscaped areas, diverting water sheet flow, using barricades, danger tape or traffic cones to alert persons of the existence of hazards and replacing valve box covers so as to protect all persons from injury.
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Ex. A - 8 (BB&K 2020)
The Contractor shall inspect all work sites for hazards, or potential hazards in the contractual areas daily.

During the required inspection of all work sites for hazards, or potential hazards, the Contractor shall immediately contact the City representative (either e-mail or text) indicating the condition, date, and the area that was inspected and a work order should be created using the myOntario App.

The Contractor shall cooperate fully with the City of Ontario in the investigation of any accidental injury or death occurring on the premises, including the submission of a complete written report thereof to the Parks and Maintenance Director within three (3) days following the occurrence.

13. REMOVING OBSTRUCTION AND MAINTENANCE OF EXISTING IMPROVEMENTS Where the work is to be constructed in, or adjacent to, areas which have been improved by lawns, trees, shrubs, or gardens, the Contractor shall remove such trees or plants as may be necessary for the prosecution of the work and give them proper care and attention until the work has been satisfactorily completed, after which the Contractor shall replace them in as nearly the original condition and location as is reasonably possible. Where it is necessary to deposit the excavated materials on lawns during the process of construction, the Contractor shall first lay burlap or canvas on the lawn to prevent contact between the excavated material and turf grass.

Unless otherwise indicated in the contract documents, all utility lines, conduits, wires, or structures shall be maintained by the Contractor and shall not be disturbed, disconnected or damaged by them during the progress of the work, provided, that should the Contractor in the performance of the work disturb, disconnect, or damage any of the above, all expense, arising from such disturbance, or in the replacement or repair thereof, shall be borne by the Contractor.

However, in accordance with Section 4215 of the California Government Code, the Contractor shall be compensated 1) for the cost of locating and repairing damage to main or trunk line utility facilities located on the job site, not due to the failure of the Contractor or exercise reasonable care; 2) for costs of removing or relocating such utility facilities not indicated in the contract documents with reasonable accuracy; and 3) for the operation cost for equipment on the project necessarily idled such work.

At least two (2) working days prior to commencing any excavation pursuant to this Contract, the Contractor shall contact Underground Service Alert at (800) 422-4133 or other appropriate regional notification center if the excavation will be conducted in an area which is known, or reasonably should be known, to contain subsurface installations. 520
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Ex. A - 9 (BB&K 2020)

14. CONTRACTOR STAFF
The contractor shall provide the manpower as a minimum staffing requirement to comply with the performance of the landscape/irrigation maintenance specifications and requirements of the site.

The Contractor shall furnish one (1) supervisor with a minimum of 5 years of landscape and irrigation maintenance experience and sufficient supervisory and working personnel capable of promptly accomplishing all tasks on schedule, to the satisfaction of the Parks and Maintenance Director, or his authorized agent, all work required under this contract during the prescribed hours (6:30 AM to 4:00 pm). Staffing shall be as needed plus any additional workforce to complete the maintenance/construction tasks required on the frequency page. Payment will be based upon completed, acceptable work, Irrigation technician and spray technician to be provided as needed (personnel needs do not address the alternates per bid forms). Incomplete or unacceptable work will result in a delay or reduction of billing payment.

The Contractor shall have a competent supervisor, who is capable of communicate effectively both in written and oral English and discuss matters pertaining to this contract. Supervisor must be able to demonstrate to the satisfaction of the Parks and Maintenance Director, or his authorized agent, that they possess an adequate technical background. Adequate and competent supervision shall be provided for all work done by the Contractor's employees to ensure accomplishment of high-quality work, which will be acceptable to the Parks and Maintenance Director or his authorized agent.

Any order or communication given to the supervisor shall be deemed as delivered to the Contractor. The contractor shall use the free myOntario App. The use of a Smart phone will be required.

The contractor shall provide the minimum staffing requirements to comply with the performance of the landscape maintenance specifications and requirements of the site. Personnel shall be on site ready to work no later than 6:30am.

The Contractor, and their employees, shall always conduct themselves in a proper and efficient manner and shall cause the least possible annoyance to the public. The Parks and Maintenance Director or his authorized agent, may require a Contractor to remove from the work site any employee(s) deemed careless, incompetent, or otherwise objectionable, whose continued employment on the job is considered to be contrary to the best interest of the City of Ontario. 521
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Ex. A - 10 (BB&K 2020)
The Contractor shall require each of his employees to wear basic public works working attire.

These are basically proper shoes, and other gear required by State Safety Regulation, and proper wearing of the clothing. Shirts shall be worn and always buttoned; safety vests "Type II" are required when indicated by the Work Area Traffic Control Handbook, the Parks and Maintenance Director or his authorized agent.

The Contractor shall establish an identification system for personnel assigned to the maintenance/construction site, which clearly indicates to the public the name of the Contractor and individual responsible for the construction/maintenance work. The identification system shall be furnished at the Contractor's expense and may include appropriate attire and name badges.

Contractor shall be responsible for traffic control (where needed) and shall be done per "WATCH" standards. Failure to comply with proper "WATCH" standards shall result in stoppage of all work until the proper traffic control is set up and could result in a fine. 1st violation $500.00, 2nd. Violation $ 1000.00, 3rd. violation and thereafter $ 3000.00 and/or possible cancellation of contract.

Inclement Weather
During inclement weather, (rainstorms, windstorms etc.) the contractor shall be required to contact the City representative prior to 7:00 am to receive clear direction of their assignments for the day. A minimum of two staff members shall be at the disposition of the City.

15. LOCAL OFFICE
A. The Contractor shall maintain an office with a telephone and provide at all times the following:

A responsible person(s), employed by the Contractor, which shall have the ability to take necessary action regarding all inquiries and/or complaints received from the Parks and Maintenance Director, or his authorized agent. This person(s) shall be accessible twenty-four (24) hours per day and seven (7) days per week. An answering service shall be considered an acceptable substitute to full-time coverage, outside of prescribed working hours, provided the Contractor is notified of any communication within one (1) hour after receipt of said communication. The telephone number(s) of the Contractor or responsible person(s) of the Contractor shall be a toll-free number for the City of Ontario. 522
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Ex. A - 11 (BB&K 2020)
B. During normal working hours, the Contractor's supervisors, who are responsible for providing contractual services, shall be available for notification through a landline or cellular telephone communication. This will allow the city to access the contractor at any time during City working hours.

16. STORAGE FACILITIES
The City of Ontario will not be providing storage facilities throughout the duration of this contract.

A. SIGNS
Contractor shall not post signs or advertising matter upon the areas under maintenance or improvements thereon, unless prior written approval is obtained from the Parks and Maintenance Director, or his authorized agent.

Contractor shall, always, remove all unauthorized signs and advertising matter such as, but not limited to, garage sale signs, yard sale signs, campaign signs and personal business signs in the area under maintenance.

17. LOCK AND KEYS
A. Where City of Ontario locks and keys are required as part of this contract, the Contractor shall:

Not duplicate any coded City key furnished by the city.

Surrender all keys furnished by the Parks and Maintenance Director or his authorized agent promptly at the end of the contract period, or at any time-deemed necessary by the Parks and Maintenance Director, or his authorized agent, to prevent loss to the City of Ontario.

Protect the security of City property by keeping controller cabinets and enclosure doors always locked.

Contact the City immediately if a security lock is non-functional and needs repair. Refrain from using premises behind locked doors for storage of materials, supplies or tools except as approved by the Parks and Maintenance Director or his authorized agent. In the event that the contractor staff who has been assigned keys to the facilities resigns from his position, it is the 523
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Ex. A - 12 (BB&K 2020)
sole responsibility of the contractor to retrieve the keys assigned to such staff member and return to the City.

18. UTILITIES
The City of Ontario shall pay for the maintenance related to water and electrical utilities.

When needed, water usage shall not exceed the budgeted amount to comply with the City Water Conservation efforts. A water budget may be provided by the City and shall be reviewed and adhered to by the Contractor. Water budget shall be approved by the Parks and Maintenance Director, or his authorized agent.

The Contractor may be charged for all excessive utility usage (using the current utility rate) due to the contractor's failure to manage and or monitor irrigation system malfunctions or unauthorized increases in water usage. The excess cost will be determined by comparing the current utility usage with historical usage data for the same period.

The excess cost factor shall be deducted from payments to the Contractor. However, the Contractor will be allowed three (3) working days, upon receiving notice, to explain in written documentation the cause of the increase in utility usage in question. A final determination (after review of Contractor's explanation) of the deduction will be assessed by the Parks and Maintenance Director or his authorized agent.

19. NON-INTERFERENCE
The Contractor shall not interfere with the public use of the premises and shall conduct their operations so as to offer the least possible obstruction and inconvenience to the public, nor disrupt the peace and quiet of the area within which the services are performed.

20. PARKING
A. The Contractor shall park their vehicles and equipment within designated parking areas or in such a location to ensure normal vehicular traffic.

B. The Contractor's vehicles and equipment shall not be parked or set in such a manner that they block pedestrian access or vehicular right-of-way except as required to comply with all safety standards of OSHA or CAL-OSHA. Failure to perform proper traffic control will result in a formal warning (first time), deduction of $500.00 per instance after formal warning has been given and contractor fails to comply.
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Ex. A - 13 (BB&K 2020)

21. EMERGENCY CALLS
A. The Contractor shall have the capability to receive and respond immediately to calls of an emergency nature during normal working hours and outside of normal working hours. Calls of an emergency nature received by the Parks and Maintenance Director or his authorized agent, shall be referred to the worksite Contractor for immediate disposition. If the work site Contractor cannot be reached within two (2) hours, the City will deduct from the monthly billing the cost of City forces, or other sources, used to repair the emergency. The Contractor shall not receive additional compensation for responding to emergencies for work included in these general conditions at contract work sites.

22. EXTRAORDINARY SERVICES
A. The Contractor shall be responsible for providing extraordinary maintenance and/or repairs to existing landscape and new landscape areas outside of their contract areas.

Extraordinary services shall be defined as work not included in these general conditions or work required at a site for which there is no contract. Extraordinary maintenance shall include answering emergency calls as required. Contractors shall respond to an emergency call within two (2) hours. Contractors shall maintain a 24 hours per day, seven days per week, on-call service for emergency calls. The Contractor shall notify the Parks and Maintenance Director, or his authorized agent, by telephone within 24 hours of any emergency extraordinary work that is performed. Non-emergency extraordinary work requires written approval before the work is performed. Submission of an EWA and approval by the Parks and Maintenance Director, or his authorized agent will be necessary. The Contractor shall be compensated for extraordinary work as defined in Section 9.

B. In situations involving emergency repair work after normal work hours, Contractors shall dispatch qualified personnel and equipment to reach the site within two (2) hours. The Contractor's vehicle shall carry sufficient equipment to effect safe control of traffic. When the work site Contractor arrives at the site, the Contractor shall set up traffic warning and control devices, if deemed necessary and proceed to repair on a temporary/permanent basis.

C. If a City Representative is still at the site when the work site contractor arrives, the Contractor shall quickly evaluate the situation and discuss it with the City Representative. If the repair will take only a few minutes, the City Representative may stay to continue to direct traffic while the Contractor makes the repairs. If the repair will take longer than the City Representative 525
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Ex. A - 14 (BB&K 2020)
can wait, the Contractor shall immediately set up temporary traffic control devices and all other necessary warning devices and relieve the City Representative.

D. An emergency may be called by the following individuals or agencies at anytime for extraordinary services involving repair work:

1. City Manager

2. Police Department

3. Fire Department

4. Parks and Maintenance Director
E. The following emergency phone numbers are listed for the convenience of the Contractors:

Fire Department (Dispatch) (909) 983-5911
Fire Department (Emergency) 911
Police Department (Dispatch) (909) 986-6711
Police Department (Emergency) 911
Southern California Edison (800) 655-4555
Southern California Gas (800) 427-2200
Dig Alert (800) 422-4133

23. REPORTING DAMAGE OR MALFUNCTION
Any damage to, or malfunction of, any facility not specifically stated in this Agreement shall be promptly reported to the Parks and Maintenance Director, or his authorized agent.

24. COMPENSATION FOR ROUTINE MAINTENANCE
The City shall compensate Contractors based upon the total dollar amount of a bid or the total dollar amount of a combination of bids, if applicable, in monthly installments beginning 30 days after the commencement of work. Billing adjustments may be made where authorized by this Agreement.
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Ex. A - 15 (BB&K 2020)

25. ADDITION OR DELETION OF LANDSCAPE AREAS
The Contractors shall maintain, at a unit price comparable to other existing landscape areas and subject to the Parks and Maintenance Director approval or his authorized agent's approval, additional landscape areas that the city adds to this contract. If notification is made of a new installation other than at the beginning of a monthly period, the unit cost negotiated and agreed upon by the parties, shall be prorated from the day the Contractor is notified to start maintenance. The City may elect to delete work sites, or portions thereof, within this Agreement at a unit price comparable to the bid price of said work sites.

26. DISCREPANCIES OR OMISSIONS
Should a bidder find discrepancies or omissions in the specifications or other documents, or be in doubt as to their true meaning, he may request a written interpretation from the Parks and Maintenance Director, or his authorized agent. Any interpretation, or change in the proposed documents, will be made only by addendum issued to each person to whom bid forms have been issued and shall become a part of the bid.

27. MINOR MODIFICATION
The Parks and Maintenance Director, or his authorized agent, may modify these specifications with the joint approval of the Contractor.

28. CONTRACTOR NON-COMPLIANCE
If the Parks and Maintenance Director, or his authorized agent, determines that there are deficiencies in the performance of this Agreement, the Parks and Maintenance Director, or his authorized agent, will provide a written inspection notice to the Contractor stating the deficiencies and specifying a time frame to correct the specified deficiencies. This time frame shall be reasonable, as determined by the Parks and Maintenance Director, or his authorized agent, to correct the specified deficiencies but not to exceed five 5 working days from the day of the inspection punch list. If the site(s) show obvious signs of non-performance, the Parks and Maintenance Director, or his authorized agent shall have the ability to immediately enforce partial or full deduction for the site in question. Should the Contractor fail to correct all deficiencies within the stated time frame, the Parks and Maintenance Director, or his authorized agent, may exercise the following measures:
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Ex. A - 16 (BB&K 2020)
A. Deduct from the Contractor's payment the amount necessary to correct the deficiency, including City overhead and impose a deficiency deduction.

B. Withhold the entire or partial payment.

C. Utilize City forces, or an alternate source, to correct the deficiency and deduct from the Contractor's payment the total cost, including City overhead. The Parks and Maintenance Director, or his authorized agent, shall decide all questions which arise as to the manner of performance and completion per schedule, acceptable fulfillment of the contract by the Contractor, interpretation of the specifications, and compensation to include completion of work by alternate sources. In addition to the provisions of Section 3.3, Contract Documents and Section 28 (B), in event of a failure to correct a deficiency, or for any other breach of this Agreement by the Contractor, the City of Ontario may immediately terminate this Agreement. If the contractor requires extra time to complete the deficiency list due to materials/parts shortage, the contractor shall request in writing only the time needed to be added and the reasons why.

The City representative will review the request and shall respond to the contractor in writing of the decision made. Contractor shall present the request for extension within the first five (5) working days of the deficiency list.

29. PAYMENTS WITHHELD
The city may withhold entire or partial payment for reasons as follows:

A. Work required in the specifications, which is defective, incomplete, or not performed. Claims filed or reasonable evidence indicating probable filing of claims.

B. Failure of the Contractor to make payments properly to subcontractors, or for materials and/or labor. A reasonable doubt that the contract cannot be completed for the remaining balance.

C. Reports, logs, or other contractual written documentation required of the Contractor to be delivered to the Parks and Maintenance Director, or his authorized agent, which is/are incomplete or not performed.

30. WITHHELD CONTRACT FUNDS
The Contractors may, at his sole cost and expense, substitute securities equivalent to any monies withheld by the City to insure performance under the contract. Such securities shall be deposited with the City or with a State or Federally Chartered Bank as escrow agent who shall pay such monies to the Contractors upon satisfactory completion of the contract. The Contractor 528
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Ex. A - 17 (BB&K 2020)
shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon. Securities eligible for investment under this section shall include those listed in Public Contract Code Section 22300. One definition of just cause for immediate contract termination is, if in the opinion of the Parks and Maintenance Director, or his authorized agent, the contract cannot or will not be completed by the Contractor in its entirety. In the event of such termination, the bonds required shall remain in effect for six (6) months after the date of termination to provide surety that any remedial work required at the time of termination will be completed.

If the Contractor fails to meet the specifications of this contract for any fifteen (15) consecutive or non-consecutive days, the Parks and Maintenance Director, or his authorized agent, may at his option terminate the balance of this contract by written notice of termination to the Contractor. Notice of such termination shall take effect three (3) days after such notice is mailed.

31. COMPLAINTS FROM CITY
The Contractor shall maintain an on-the-job a written log of all complaints which includes the date and time received and the action taken or the reason for non-action. The on-the-job log of complaints shall be available upon request from the City Representative. All complaints shall be abated as soon as possible after notification; but in all cases within 24 hours, to the satisfaction of the Parks and Maintenance Director, or his authorized agent. If any complaint is not abated within 24 hours, the Parks and Maintenance Director, or his authorized agent, shall be notified immediately of the reason for not abating the complaint, followed by a written report to the Parks and Maintenance Director or his authorized agent, within four (4) City working days.

If the complaints are not abated within the time specified, or to the satisfaction of the Parks and Maintenance Director or his authorized agent, the Parks and Maintenance Director, or his authorized agent, may correct the specific complaint and the total cost incurred by the City of Ontario shall be deducted and forfeited from the payments owing to the Contractor from the City of Ontario.

32. CONTRACTOR IS AN INDEPENDENT CONTRACTOR, INDEMNIFICATION Contractor shall act under the contract as an Independent Contractor thorough the City of Ontario and will not be an agent, or employee of the City. Contractor shall not represent or otherwise hold out itself, or any of its subcontractors, directors, officers, partners, employees, or 529
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Ex. A - 18 (BB&K 2020)
agents, to be an agent or employee of the City. Contractors shall indemnify and otherwise hold harmless the City, its officials, officers, directors, employees, agents and other representatives, from all liability, loss, or damage, including reasonable attorney's fees and other costs of defense resulting from damage or injury to persons or property caused, or claimed to have been caused, by acts or omissions of the Contractor, or of any of its subcontractors, directors, officers, partners, employees, or agents in the course of, or in connection with the Contractor's performance under the contract. The Parties agree to cooperate fully in the resolution of any claims for such liability, loss, or damage.

33. SUBCONTRACTOR/ASSIGNMENT OF CONTRACT
Reference is hereby made to the provisions of The Subletting and Subcontracting Fair Practices Act (Government Code Sections 4100, et. seq.), which are incorporated herein and made a part hereof by this reference.

A copy of each subcontract, if in writing, or if not in writing, then a written statement signed by the Contractor, giving the name of the subcontractor, and the terms and conditions of such subcontract, shall be filed with the City before the subcontractor begins work. Each subcontract shall contain a reference to this agreement between the City and the Contractor, and the terms of that agreement between the City and the Contractor and all parts thereof shall be made a part of such subcontract insofar as applicable to the work covered thereby. Each subcontractor shall provide for its annulment by the Contractor at the order of the City, if, in the City's opinion, the subcontractor fails to comply with the requirements of the principal contract insofar as the same may be applicable to his work. Nothing herein contained shall create any contractual relation between any subcontractor and the City or relieve the Contractor of any liability or obligation hereunder.

Contractor shall not assign, transfer, convey or otherwise dispose of this contract, or of his rights of interests in or to the same or any part hereof, without the previous consent in writing of the Parks and Maintenance Director, or his authorized agent. If the Contractor, without such previous written consent assigns, transfers, conveys, or otherwise disposes of the contract, or of his rights or interests therein, the contract may, at the option of the City, be terminated and revoked, and the City shall there upon be relieved and discharged from all liability and obligations arising out of the same to the Contractor, and to his assignee or transferee. No right under the contract, nor any right to any money to become due hereunder, shall be asserted against the City in law or equity by reason of any so-called assignment of the contract, or any 530
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Ex. A - 19 (BB&K 2020)
part thereof unless authorized by the written consent of the Parks and Maintenance Director, or his authorized agent.

34. COMPLIANCE WITH THE LAW
Contractor agrees that their performance under this contract shall comply with all applicable laws of the United States of America, the State of California, the county of San Bernardino, the City of Ontario and any other political entity having jurisdiction over the activities of the Contractors. The Contractor State License Board for the State of California has administratively determined in writing that a C-27 Contractor License is required to provide the service as set forth in the contract and specifications. Therefore, each bidder will be required to hold a valid C27 Contractor License.

35. PAYROLL
Section 1776, Chapter 1 of Division 2, from the California Labor Code requires that each Contractor and Subcontractor keep an accurate payroll record, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and each week, and the actual per diem wages paid each journeyman, apprentice or worker employed by him.

The employee's own payroll records shall be available for inspection, and a copy shall be made available to the employee or his authorized representative, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standard.

Pursuant to Labor Code Section 1778.8, the Contractor agrees to pay travel and subsistence payments to each workman needed to execute the work in accordance with the applicable collective bargaining agreements filed with the Department of Industrial Relations.

36. LABOR STRIKE
It shall be the responsibility of each contractor to provide continuous contractual services, without any interruption.

In case of any labor strikes, the Contractor shall provide other means, as its own cost, to provide a comparable continuous contractual service as if there were no strike.

Failing to do so will cause the Parks and Maintenance Director, or his authorized agent, to take whatever action is deemed necessary to provide such service and the cost will be borne by the Contractor.
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Ex. A - 20 (BB&K 2020)

37. DEBRIS DISPOSAL
Blowing and disposing of any debris into the Storm Drain system and/or streets shall not be permitted. If found, Contractor will face liquidating damages as follows; 1st violation $ 500.00, 2nd. violation $1000.00, 3rd. violation and thereafter $3000.00 and/or possible cancellation of contracts.

38. TREE CARE
A. Tree Trimming
The Contractor shall be responsible for all tree under-trimmings, including the removal of palm fronds and flower stalks (if present). All trees are to be under-trimmed to ensure public and vehicle safety or as directed by the Parks and Maintenance Director, or his authorized agent.

Contractor shall have a Certified Arborist on staff to meet the following criteria:

Contractor shall prune palm trees at no extra cost to the City (dead fronds and flower stalks) annually, removal of fruit (dates) if present shall be done twice per year as designated by the Parks and Maintenance Director or his authorized agent.

All trees in the work site shall be maintained in their natural shapes. This work shall be accomplished in a manner which will ensure that each individual tree is under-trimmed carefully to promote the tree's health and appearance.

All work shall be of the highest quality and performed in accordance with City approved tree trimming standards.

All trees shall be continually maintained free of all dead, diseased and damaged branches back to the point of breaking. In cases where the dead, diseased or damaged branches are beyond the reach of a tree pruning pole saw being operated from ground level, the Contractor is to notify the City within 24 hours. Cuts must be made flush with the collar to promote proper healing. Pruning tools shall be adequately sharpened to provide clean cuts and shall be properly sterilized to reduce spread of disease.

All sucker growth is to be removed from trees as it occurs.

The Contractor shall maintain all branches which encroach on or over sidewalks at a minimum height of ten feet (10') clearance. The Contractor shall notify the city within 24 hours of any 532
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Ex. A - 21 (BB&K 2020)
branches encroaching beyond the curb line into the street that cannot be reached with a pole saw.

All branches which encroach over private property, shall be removed as directed.

The Contractor shall not remove or disturb any tree central leader without prior written approval from the Parks and Maintenance Director, or his authorized agent.

39. WEED CONTROL
Weeds are defined in the dictionary as:
“A wild plant growing where it is not wanted and in competition with cultivated plants." When classified by their gross morphological features, weeds are broken down into three major categories: grasses, sedges, and broadleaf weeds.

Full control of these 3 categories of weeds will be achieved with a combination of selective and non-selective herbicides as well as mechanical removal. Weeds should not be visible.

All areas within the specified maintenance area, including but not limited to, turf grass, shrub and ground cover areas, planters, tree wells, landscape areas, and softball/baseball infields shall be kept free of weeds at all times. At no time shall any weed be over 4” tall.

Weed removal shall consist of complete removal of all weeds, including top growth and roots.

Weed control shall be performed as needed.

Weeds shall be controlled either by hand, mechanical or chemical methods; however, the Parks and Maintenance Director, or his authorized agent, may restrict the use of chemical weed control in certain areas.

40. USE OF CHEMICALS
The Contractor shall submit a list of all chemical herbicides, pesticides, and rodenticides proposed for use under this contract for approval by the Parks and Maintenance Director or his authorized agent with the signed contract. Materials included on this list shall be limited to chemicals approved by the State of California Department of Food and Agriculture, and shall include the exact brand name and generic formulation. The use of any chemical on the list shall be based on the recommendations of a California State Licensed Pest Control Advisor where required by law.

The use of chemicals shall conform to the current San Bernardino County Agriculture Commissioner regulations. No chemical herbicide, rodenticide or pesticide shall be applied until 533
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Ex. A - 22 (BB&K 2020)
its use is approved, in writing, by the Parks and Maintenance Director, or his authorized agent as appropriate for the purpose and area proposed.

Required spray equipment will consist of at least one (1) medium spray rig of 100-gallon (minimum) capacity or more and backpack sprayers provided for each crew performing chemical landscape maintenance.

41. LITTER
All areas in the work sites shall be kept free of, but not limited to, the following items: bottles, glass, broken glass, cans, paper, cardboard, metallic items, feces, leaves, tumbleweeds and other debris on a daily basis.

The Contractor shall promptly remove from the work area, all debris generated by their performance and dispose of the debris in a legal manner. The City does not allow any dumping of debris generated by your daily work in City facilities. Illegal dumping picked up by contractors shall be brought up to the City yard for proper disposal. Excessive dumping (above and beyond reasonable) after long holiday weekends and special events shall be reported immediately to the City Representative.

Hazardous waste as well as homeless belongings shall not be picked up. Contractor shall contact City Representative to arrange proper disposal by City forces. A myOntario App service request shall be created to report the hazardous conditions.

42. GENERAL
A. Trash Removal
Remove all trash and accumulated debris from the work sites daily. In addition, any type of feces is also to be removed from the walkways, turf or ground cover areas and dumpster areas.

B. Policing of Areas
All maintained areas shall be policed based on frequencies.

C. Curb and Gutter Maintenance
The Contractor is responsible for removal of all weeds and grass growing in and around the curb and gutter area monthly. The Contractor is responsible for insuring the roadway is cleared 534
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Ex. A - 23 (BB&K 2020)
of all dirt and debris within four (4) feet of the curb and gutter in all areas adjacent to maintenance responsibilities.

D. Walkway Maintenance
Walkways shall be cleaned immediately following mowing and edging and cleaned by use of power sweeping or blower equipment. All walkway cracks and expansion joints shall be maintained weed and grass free at all times.

E. Drain Maintenance
All drains and catch basins shall be kept free of siltation and debris at all times. All V-ditches and drainage areas shall be kept clean and edged weekly by the Contractor. Cleaning of drain basins shall be done monthly, Contractor shall inspect weekly to make sure that grates are secured, if missing, Contractor shall replace at City's expense. Damaged grates due to Contractor's operations shall be replaced at Contractors expense.

F. Removal of Leaves
Accumulation of leaves shall be removed from all designated landscape areas on a monthly basis and under trees once per month or more as needed.

G. Hardscape Power Wash
All concrete areas shall be cleaned using a power washer (hot steam cleaning washer) to remove soda spills, gum and other stains that might be present. The City Representative will make the final determination if the service is needed.

The use of a biodegradable cleaner (soap) is required and permitted. Containment of contaminated soapy water shall be the responsibility of the Contractor.

43. REPAIR AND SERVICE OF WALKWAYS AND MISCELLANEOUS IMPROVEMENTS Walkways and Service Roads - All walkways and service roads, if any, shall be maintained by the Contractor so as to keep the integrity of the walking or driving surface in a safe, unimpaired condition.
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Ex. A - 24 (BB&K 2020)
The Contractor will not be responsible for total replacement of roadways or walkways as a result of normal deterioration but will be required to replace all improvements damaged by his negligence.

It will be the responsibility of the Contractor to repair or replace miscellaneous improvements such as signs and mowing strips, or any other structural improvements within the work sites, unless otherwise specified. The Contractor shall be entitled to additional compensation for these services as stated. The contractor shall communicate any improvements needed prior to repairs to the Parks and Maintenance Director or his authorized agent for proper approvals.

44. CITY OF ONTARIO myOntario App (FREE)
Contractor shall download the free myOntario App for the purpose of tracking completed specialty tasks (mulching, vandalism, vehicular damage, rose trimming, fertilizations, chemical applications, illegal dumping, hazardous waste, pruning shrubs, downed branches and rodent control, restroom issues). All specialty tasks shall be recorded as a service request using the app order system and shall be reported to the city representative when completed. City staff will close the service request.

NOTICES
Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person, shall be in writing and either served personally, sent by prepaid, first-class mail, or by email followed by mailing of said notice. 536
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Ex. A - 25 (BB&K 2020)
Ontario Ranch Weed Abatement Sites

MAINTENANCE FREQUENCIES
TREES
Staking/Guying As needed
Under Trimming (ISA standards) As needed
Raking Leaves As needed
Under Trimming As needed

MISCELLANEOUS
Weed Removal As needed
Weed Control 24 x per year
Curb and Gutter service As needed
Trash/Litter 364 x per year
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BB&K (2023) Exhibit B-1 MAINTENANCE SERVICES AGREEMENT
EXHIBIT “B”

SCHEDULE OF SERVICES

SEE ATTACHMENT
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(BB&K 2020)

LANDSCAPE MAINTENANCE SERVICES FOR ONTARIO RANCH WEED ABATEMENT BID SCHEDULE NO. 1
LANDSCAPE MAINTENANCE CONTRACT PM 2425-18
FISCAL YEAR 2024/2025 to 2026/2027 3 YEAR CONTRACT
No. Description Monthly Annual
Cost Cost

1. Ontario Ranch Weed Abatement $12,750.00 $153,000.00
TOTAL $12,750.00 $153,000.00
Additional cost for a complete individual tree trimming up to 30’ $120.00 (per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at $60.00 DBH (diameter at breast height) stumps to
be ground to a depth of 18” minimum
Cost for complete tree removal per inch at $45.00
DBH (diameter at breast height) (flush cut 3” from ground)

FUTURE CONTRACT ADDITIONS
Landscape maintenance areas cost per sq. ft. $.037
Hardscape maintenance areas cost per sq. ft. $.027
Weed Abatement areas cost per sq. ft. $.06
Exhibit B-2
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(BB&K 2020)

LANDSCAPE MAINTENANCE SERVICES FOR ONTARIO RANCH WEED ABATEMENT BID SCHEDULE NO. 2
LANDSCAPE MAINTENANCE CONTRACT PM 2425-18
FISCAL YEAR 2027/2028 4th YEAR CONTRACT (OPTIONAL)
No. Description Monthly Annual
Cost Cost

1. Ontario Ranch Weed Abatement $13,135.50 $157,626.00
TOTAL $13,135.50 $157,626.00
Additional cost for a complete individual tree trimming up to 30’ $120.00 (per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at $60.00 DBH (diameter at breast height) stumps to
be ground to a depth of 18” minimum
Cost for complete tree removal per inch at $45.00
DBH (diameter at breast height) (flush cut 3” from ground)

LANDSCAPE MAINTENANCE SERVICES FOR ONTARIO RANCH WEED ABATEMENT BID SCHEDULE NO. 3
LANDSCAPE MAINTENANCE CONTRACT PM 2425-18
FISCAL YEAR 2028/2029 5th YEAR CONTRACT (OPTIONAL)
No. Description Monthly Annual
Cost Cost

1. Ontario Ranch Weed Abatement $13,530.00 $162,360.00
TOTAL $13,530.00 $162,360.00
Additional cost for a complete individual tree trimming up to 30’ $120.00 (per individual tree/required trimming to be +/- 35% of growth per ISA) Cost for complete tree (individual) removal per inch at $60.00 DBH (diameter at breast height) stumps to
be ground to a depth of 18” minimum
Cost for complete tree removal per inch at $45.00
DBH (diameter at breast height) (flush cut 3” from ground)

PERFORMANCE/PAYMENT BONDS ON THE NEXT PAGE
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BB&K (2024) Exhibit C-2 MAINTENANCE SERVICES AGREEMENT

PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:

THAT WHEREAS, the City of Ontario (hereinafter referred to as “City”) has awarded to ____________________, (hereinafter referred to as the “Contractor”) _______________________ an agreement for ______________________________ (hereinafter referred to as the “Project”).

NOW, THEREFORE, we, _______________, the undersigned Contractor and _____________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of ___________________________ DOLLARS, ($____________), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one-year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officers and agents, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.

As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship, Surety shall undertake and faithfully fulfill all such obligations. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.

Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option:
543
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BB&K (2024) Exhibit C-3 MAINTENANCE SERVICES AGREEMENT
(1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
(2) Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
(3) Permit the City to complete the Project in any manner consistent with local, California and federal law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.

Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code.
544
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BB&K (2024) Exhibit C-4 MAINTENANCE SERVICES AGREEMENT
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__).
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal)
Surety
By
Attorney-in-Fact
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)

THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)
(Name and Address of Agent or
Representative for service of
process in California, if different
from above)
(Telephone number of Surety
and Agent or Representative for
service of process in California)
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
545
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BB&K (2024) Exhibit C-5 MAINTENANCE SERVICES AGREEMENT
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally
appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature of Notary Public

OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
546
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BB&K (2024) Exhibit C-6 MAINTENANCE SERVICES AGREEMENT

PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Ontario (hereinafter designated as the “City”), has awarded to ________________ hereinafter designated as the “Principal,” a contract for the work described as follows:
_____________________________________________________ (the “Project”); and WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated __________________ (“Contract Documents”), the terms and conditions of which are expressly incorporated by reference; and WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.

THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified.

This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond.

It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or 547
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BB&K (2024) Exhibit C-7 MAINTENANCE SERVICES AGREEMENT
attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of sections 2819 and 2845 of the California Civil Code.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal) Surety
By
Attorney-in-Fact
Title
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached. A Power-of-Attorney authorizing the person signing on behalf of the Surety to do so much be attached hereto.

NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
548
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BB&K (2024) Exhibit C-8 MAINTENANCE SERVICES AGREEMENT
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally
appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature of Notary Public

OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
549
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BB&K (2024) - 1 - MAINTENANCE SERVICES AGREEMENT

CITY OF ONTARIO

MAINTENANCE SERVICES AGREEMENT

1. PARTIES AND DATE.

City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. RECITALS.

2.1 Contractor.

Contractor desires to perform and assume responsibility for the provision of certain maintenance services required by the City on the terms and conditions set forth in this Agreement.

Contractor represents that it is experienced in providing Landscape Maintenance Services for Quiet Home Weed Abatement services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the Services in the State of California, and that is familiar with the plans of City.

2.2 Project.

City desires to engage Contractor to render such services for the Landscape Maintenance Services for Quiet Home Weed Abatement PM 2425-17 project (“Project”) as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Term.

3.1.2 Term. The term of this Agreement shall be from September 1, 2024 to June 30, 2027 unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two (2) additional one-year terms. Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.

3.2 Compensation.

3.2.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Three Hundred Eighty-Seven Thousand Dollars with Zero Cents ($387,000) without written approval of City’s City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

3.2.4 Reimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless authorized in writing by City.

Contractor shall not perform, nor be compensated for, Extra Work without written authorization from City’s Representative.

3.3 Responsibilities of Contractor.

Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other 551
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BB&K (2024) - 3 - MAINTENANCE SERVICES AGREEMENT
amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

3.3.3 Conformance to Applicable Requirements. All work prepared by Contractor shall be subject to the approval of City.

3.3.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor’s failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub-contractors who is determined by the City to be uncooperative, incompetent, 552
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BB&K (2024) - 4 - MAINTENANCE SERVICES AGREEMENT
a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.

3.3.8 Period of Performance

3.3.8.1 Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Contractor shall perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be provided separately in writing to the Contractor. Contractor agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such completion schedule or Project milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum of One Hundred Seventy-Seven Dollars with Zero Cents ($177) per day for each and every calendar day of delay beyond the Performance Time or beyond any completion schedule or Project milestones established pursuant to this Agreement.

Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.

3.3.10 Laws and Regulations; Employee/Labor Certifications.

3.3.10.4 Employment Eligibility; Failure to Comply. Each person executing this Agreement on behalf of Contractor verifies that they are a duly authorized officer of Contractor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Contractor or its subcontractors, sub-subcontractors or consultants to meet any of the requirements provided for in Sections 3.3.10.1 or 3.3.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including 554
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BB&K (2024) - 6 - MAINTENANCE SERVICES AGREEMENT
in those verifications provided to the Contractor under Section 3.3.10.2); or (3) failure to immediately remove from the Project any person found not to be in compliance with such requirements.

3.3.10.7 Water Quality.
(A) To the extent applicable, Contractor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the Colorado River Regional Water Quality Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State. (B) Liability for Non-Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Contractor or City to penalties, fines, or additional regulatory requirements. Contractor shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Contractor’s non-compliance with the laws, regulations and policies described in this Section, unless such non-compliance is the result of the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. (C) Training. In addition to any other standard of care requirements set forth in this Agreement, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Contractor further warrants that it, its employees and subcontractors will receive 555
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BB&K (2024) - 7 - MAINTENANCE SERVICES AGREEMENT
adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Contractor with a list of training programs that meet the requirements of this paragraph.

3.3.11 Insurance.

Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another. (B) Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits.
(C) Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be 556
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BB&K (2024) - 8 - MAINTENANCE SERVICES AGREEMENT
promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Agreement. (D) Additional Insured. The City, its directors, officials, officers, employees, agents, and volunteers shall be named as additional insureds on Contractor’s and its subcontractors’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.

The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents, and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Contractor. 557
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BB&K (2024) - 9 - MAINTENANCE SERVICES AGREEMENT
(D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents, and volunteers.

3.3.11.8 Verification of Coverage. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 558
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BB&K (2024) - 10 - MAINTENANCE SERVICES AGREEMENT

3.3.13 Bonds.

3.3.13.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, shall be accepted. The 559
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surety must be a California-admitted surety with a current A.M. Best’s rating no less than A:VIII and satisfactory to the City. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.

3.3.14 Work Site.

3.3.16 Warranty. Contractor warrants all Services under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Services or non-conformance of the Services to the Contract, commence and prosecute with due diligence all Services necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by its defective Services or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been 560
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transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.

3.4 Labor Code Requirements.

3.4.3 Registration/DIR Compliance. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Services, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor. 561
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3.5 Termination of Agreement.

3.6 Indemnification.

3.6.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such 562
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claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and volunteers.

3.7 General Provisions.

3.7.2 Independent Contractors and Subcontracting.

Contractor:

Merchants Landscape Services, Inc.
1510 S. Lyon St.

Santa Ana, CA 92705
Attn: Mark Brower, President
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City:

3.7.4 Governing Law; Government Code Claim Compliance. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.

3.7.6 Time of Essence. Time is of the essence for each and every provision of this Agreement.

3.7.7 City’s Right to Employ Other Contractors. City reserves right to employ other contractors in connection with this Project.

3.7.8 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.

3.7.10 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease 564
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of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.

3.7.11 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

3.7.13 No Third Party Beneficiaries. Except to the extent expressly provided for in Section 3.5.7, there are no intended third party beneficiaries of any right or obligation assumed by the Parties.

3.7.18 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

3.7.19 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
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SIGNATURES NEXT PAGE
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SIGNATURE PAGE FOR MAINTENANCE SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO
AND MERCHANTS LANDSCAPE SERVICES, INC.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

CITY OF ONTARIO Merchants Landscape Services, Inc.

By:

Its:

Printed Name:

By:

Its:

Printed Name:
____________________________________
Contractor’s License Number and
Classification
____________________________________
DIR Registration Number
Approved By:

Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:

City Clerk
[If Corporation, TWO SIGNATURES,
President OR Vice President AND
Secretary OR Treasurer REQUIRED]
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Ex. A - 1 (BB&K 2020)

SCOPE OF SERVICES

1. SCOPE OF WORK
A. The intent of this Agreement is to secure a contractor(s) who shall provide Landscape Maintenance Services for Quite Home Weed Abatement PM 2425-17.

B. The Contractor shall furnish all labor, tools, materials, and equipment to provide the landscape maintenance and repairs as set forth in this Agreement.

E. The Contractor shall perform a weekly maintenance inspection, during daylight hours, of all areas. Such inspection shall be both visual and operational. It shall include, but not be limited 568
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Ex. A - 2 (BB&K 2020)
to, the operation of all irrigation and/or other mechanical systems to check for proper condition and reliability.

2. WORK SITE
Work sites may include parks, medians, trails, weed abatement areas, and parkways.

Compensation shall be based on a-per unit cost (bid schedule form submitted) of work completed.

3. LENGTH OF CONTRACT
This PRIMARY contract shall begin September 1, 2024 and shall terminate on June 30, 2027.

All optional extensions of the contract are subject to approval by the City Manager, or his authorized agent and are contingent upon funding and performance by the Contractor.

4. DEFINITIONS
Where "as directed", "as required", "as permitted", "approved", "acceptance", or words of similar importance are used, it shall be understood that the direction, requirement, permission, approval or acceptance of the Parks and Maintenance Director, or his authorized agent, is intended unless otherwise stated.
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Ex. A - 3 (BB&K 2020)
The use of the word "Contractor" shall be held to mean the Contractor and/or any person employed by the City of Ontario, Parks and Maintenance Director, or his/her authorized agent and working under this contract.

The use of the words "shall" and "may" shall be held to mean "mandatory" and "permissive" respectively.

The use of the words "his" or "him" shall be construed to mean either gender, as appropriate.

The use of the words " Parks and Maintenance Director " shall be construed to mean either the Parks and Maintenance Director or his authorized agent(s).

The words "City working day" refers to Monday-Friday, 6:30 a.m. to 4:00 p.m.

The use of red "Danger" tape shall be used when an area is unsafe for the public by the end of workday.

The repairs shall be made within 24 hours of receiving a notice to proceed by text or email. At no time shall damage by unknown sources remain unrepaired for a period exceeding 72 hours.

Additional compensation will be provided only for costs that are directly related to the theft and/or vandalism.

The following conditions shall be met prior to the Contractor being reimbursed for "Damage by Unknown Circumstances".
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Ex. A - 4 (BB&K 2020)

6. VANDALISM/THEFT/DAMAGE BIDS
Contractor shall submit an itemized EWA (Extra Work Authorization) within 24 hours to the . Contractor shall secure written authorization for the repairs by the Parks and Maintenance Director, or his authorized agent within twenty-four (24) hours by e- mail or text. For emergencies regarding public safety, a verbal or text approval by the Parks and Maintenance Director, or his authorized agents, may be obtained.

7. COMPLETION OF PROPOSED VANDALISM/THEFT/DAMAGE WORK
A. Work is to commence within twenty-four (24) hours after receiving City approval.

B. The work shall be inspected and released as complete by the City representative, and then invoiced as specified in section (8). ·

B. Prior to the Contractor performing any additional work, the Contractor shall prepare and submit a written description of why the additional work is required, what type of work is proposed, and a cost estimate for the additional work as stated. No work shall commence 571
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Ex. A - 5 (BB&K 2020)
without written authorization from the Parks and Maintenance Director, or his authorized agent.

C. The cost estimate for additional work shall consist of the following elements:

Base cost of labor plus fifteen percent (15%) for overhead and profit.

Actual cost of materials plus fifteen percent (15%) for overhead and profit (invoice from vendor shall be attached to each invoice turned in for payment).

City reserves the right to ask for payroll records. Materials may be provided by the City of Ontario.

F. Upon completion of the additional work, the Parks and Maintenance Director, or his authorized agent, shall be notified so that the work may be verified.

Deductions shall be made from the Contractor's payments in the amount necessary to compensate the City for such repairs in the event such repair work is done by City forces, or another source.

C. Irrigation damage shall be repaired or replaced within the following time limits: Irrigation entities such as, but not limited to, (risers, heads, backflow device and cages, controllers, basket strainers, pressure regulators, irrigation wires and valves, valve boxes, irrigation pumps, ET gagues, rain buckets, antennas, flow sensors, and landscape lighting equipment) that are damaged during regular routine maintenance and become non- functional or non-efficient shall be replaced immediately. Mainline irrigation breaks shall be repaired within two (2) hours of being notified. All other irrigation repair and/or replacement shall be completed within 24 hours of being notified. (In the event that the mainline repairs require specialized parts and or materials, the contractor shall be responsible to request from the City additional time to complete the repair/s)
D. All damage to turf grass, groundcover, shrubs or trees, shall be repaired or replaced within three (3) working days of being notified. Damage to turf shall be repaired by replacement with the appropriate variety of bermudagrass sod or seeded with warm season seed and topper added. Damage to groundcover shall be repaired by replacement with the appropriate variety of plant material. Size and spacing shall be determined by the Parks and Maintenance Director, or his authorized agent. Damage to shrubs may be corrected by appropriate pruning; however, if in the opinion of the Parks and Maintenance Director, or his authorized agent, the damage is severe, the shrub (in its entirety) shall be removed and replaced with a similar variety and size. 573
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Ex. A - 7 (BB&K 2020)
E. Damage to trees shall be repaired in the following manner:

The Contractor shall be responsible for making minor corrections including, but not limited to, filling holes in landscaped areas, diverting water sheet flow, using barricades, danger tape or traffic cones to alert persons of the existence of hazards and replacing valve box covers so as to protect all persons from injury.
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Ex. A - 8 (BB&K 2020)
The Contractor shall inspect all work sites for hazards, or potential hazards in the contractual areas daily.

Any order or communication given to the supervisor shall be deemed as delivered to the Contractor. The contractor shall use the free myOntario App. The use of a Smart phone will be required.

The Contractor, and their employees, shall always conduct themselves in a proper and efficient manner and shall cause the least possible annoyance to the public. The Parks and Maintenance Director or his authorized agent, may require a Contractor to remove from the work site any employee(s) deemed careless, incompetent, or otherwise objectionable, whose continued employment on the job is considered to be contrary to the best interest of the City of Ontario. 576
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Ex. A - 10 (BB&K 2020)
The Contractor shall require each of his employees to wear basic public works working attire.

15. LOCAL OFFICE
A. The Contractor shall maintain an office with a telephone and provide at all times the following:

A responsible person(s), employed by the Contractor, which shall have the ability to take necessary action regarding all inquiries and/or complaints received from the Parks and Maintenance Director, or his authorized agent. This person(s) shall be accessible twenty-four (24) hours per day and seven (7) days per week. An answering service shall be considered an acceptable substitute to full-time coverage, outside of prescribed working hours, provided the Contractor is notified of any communication within one (1) hour after receipt of said communication. The telephone number(s) of the Contractor or responsible person(s) of the Contractor shall be a toll-free number for the City of Ontario. 577
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Ex. A - 11 (BB&K 2020)
B. During normal working hours, the Contractor's supervisors, who are responsible for providing contractual services, shall be available for notification through a landline or cellular telephone communication. This will allow the city to access the contractor at any time during City working hours.

Ontario City CouncilAugust 20, 2024

Ontario City Council
August 20, 2024