(BB&K 2020)
CITY OF ONTA
RIO
CHANGE ORDER
Project: City Wide Storm Drain Repair Project
Contract Date: June 24, 2024
Change Order Number: 2
Change Order Date:
To: GRBCON
, Inc.
Attn: Kristion Grbavac
5114 Elton Street
Baldwin Park, CA 91706
THIS CHANGE
ORDER FORM SHALL BE USED FOR ALL CHANGE ORDERS ASSOCIATED WITH THE WORK.
NO ADDITIONS OR DELETIONS TO THIS FORM SHALL BE ALLOWED, EXCEPT WITH PERMISSION OF THE CITY OF ONTARIO.
The Contract
is changed as follows:
Additional
scope to Bid Item No. 8 for the Mission Boulevard and Bon View Boulevard storm drain repairs and the addition of a dry well drainage system to alleviate flooding at the intersection of Emporia and Plum Streets .
Contractor
agrees to furnish all labor, materials, equipment, and services to perform the Work, modified as described herein, in accordance with the Contract Documents as revised by this Change Order.
NOT VALID UNT
IL SIGNED BY OWNER
In considerati
on of the change(s) described above, the Contract Price is adjusted as follows:
The original Con
tract Price was
Net change by previously authorized Change Orders
The Contract Price prior to this Change Order was
The Contract Price will be changed by this Change Order in the amount of The new Contract Price including this Change Order will be $ 707,191.00
$ 53,040.00
$ 760,231.00
$ 484,870.00
$1,245,101.00
In considerati
on of the change(s) described above, the Contract Time is adjusted as follows:
The Contract
Time will be increased decreased unchanged by 0 Days The Contract Time prior to this Change Order was 160 Days The new Contract Time including this Change Order will be 160 Days 139
46700.00100\33457526.1
(BB&K 2020)
Attachments: Additional Work - Mission and Bon View/Localized Flooding Deep Shaft Emporia and Plum Additional Lining quote from GRBCON, Inc.
Contractor accepts the terms and conditions stated herein as full and final settlement of any and all claims arising from this Change Order . The adjustments to the Contract Price and Contract Time in this Change Order constitutes the entire compensation and/or adjustment thereto due to Contractor, including direct, indirect, consequential, and overhead (field and home office) costs, due to Contractor arising out of or related to the c hange in the Work covered by this Change Order. By signing this Change Order, Contractor agrees to accept the amount of the adjustment to the Contract Price, and the adjustment of the Contract Time, as payment in full for all costs, including direct, indirect, consequential, and overhead (field and home office) costs, related to the change in the Work covered by this Change Order.
Accepted:
(Signature) Kristion Grbavac, President Date
Approved:
(Signature) Tito Haes, Executive Director of Public Works Date Approved:
(Signature) Scott Ochoa, City Manager Date
140
5114 Elton Street, Baldwin Park, CA 91706 | Office: 626-699-2380 | Fax: 626-699-2457
Lic. No. 1012408 A,C-42 | Exp: 3/31/26 | DIR No. 1000038691 | Exp: 6/30/27 | DGS SBE No. 2002710
Attn: Niles Boyer/Casey Cameron
Re: Additional Work – Mission and Bon View/Localized Flooding Deep Shaft Emporia and Plum
Dated: 9/23/2024
Agency: City of Ontario
Proposed Change Order
Gentlemen:
We have prepared a proposal for (2) extra work areas per the City of Ontario’s request. One work area will address flooding issues and deteriorated CMP on Bon View and Mission and one work area will address flooding at Emporia and Plum by way of a deep shaft dry well.
Please see the attached proposal for work on Bid Item #8 –Mission and Bon View. As you are aware, the plans show the incorrect reach to be replaced. The reach on the west side of the street is in a state of disrepair and can be reviewed in the videos provided on 9/12/24. We have provided a proposal for the additional work which is required to construct the new pipeline in the alignment of the existing CMP drain line. This cost is in addition to the bid item total of $157,850.00.
The scope/proposal for Mission and Bon View is outlined below:
Bid
Item #
Description of Extra Work Quantity Unit of
Measure
Unit Price Extended Price
A8. Add 14’ Catch Basin to assist with
capacity and NW Corner of Mission
and BonView (SSPWC 300 -3)
1 EA $25,925.00 $25,925.00
B8. Construct Residential Driveway
Approach at NW Corner of Mission
and BonView
1 EA $15,565.00 $15,565.00
C8. Additional Pipe Difference from
Base Bid
320 LF $535.00 $171,200.00
D8. Remove (4) 6” Outlet Pipes and
Abandon existing parkway culvert
(pour new curb and slot patch)
1 LS $4,000.00 $4,000.00
E8. Pavement Restoration 1 LS $2 2,000.00 $2 2,000.00 F8. Additional Traffic Control and
Pedestrian Management for
Sidewalk Pipe Installation
1 LS $6,000.00 $6,000.00
G8. Remove and Replace Sidewalk
Including CMB Subbase
1635 SF $31.00 $50,685.00
H8. Remove and Replace WheelChair
Ramp SW Corner of Mission and
Bon View
1 EA $18,000.00 $18,000.00
I8. Construct New Parkway Drain
(Maitland)
1 LS $20,800.00 $20,800.00
PROPOSED CHANGE ORDER REQUEST AMOUNT - $334,175.00
141
5114 Elton Street, Baldwin Park, CA 91706 | Office: 626-699-2380 | Fax: 626-699-2457
Lic. No. 1012408 A,C-42 | Exp: 3/31/26 | DIR No. 1000038691 | Exp: 6/30/27 | DGS SBE No. 2002710
Please see the attached proposal for extra work on Emporia and Plum. GRBCON proposes sinking an 80’ deep dry well as a relief line prior to doing the work under the railroad.
GRBCON, in conjunction with Torrent, believes that this will act as a great relief in the area that is prone to heavy flooding. When we complete the work under the railroad we will add an outlet pipe to this drywell structure to get flows back under the railroad crossing.
The scope/proposal for Emporia and Plum is outlined below:
Bid
Item #
Description of Extra Work Quantity Unit of
Measure
Unit Price Extended Price
A. MaxWell Type IV – up to 80’
deep.
1 EA $112,895.00 $112,895.00
B. Traffic Control and Safety 1 EA $5,000.00 $5,000.00 C. Connect Existing U/SDrainage
Pipes to the Newly Constructed
DryWell
2 EA $5,000.00 $10,000.00
D. REHAB U/S Existing 18” CMP
with HDPE Solid Wall Seamless
Pipe
95 LF $240.00 $22,800.00
PROPOSED CHANGE ORDER REQUEST AMOUNT - $150,695.00
Please issue a change order to the contract in the amount of $484,870.00 at your earliest convenience.
If you have any questions, please don’t hesitate to reach out.
Kristion Grbavac 142
Department: Public Works
Prepared By: Philip Marino
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:
A CONSTRUCTION CONTRACT WITH MARINA LANDSCAPE, INC. FOR THE
MISSION BOULEVARD MEDIAN IMPROVEMENT PROJECT
CITY OF ONTARIO
Agenda Report
November
5, 2024
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council take the following actions:
A
.
Authorize the City Manager, or his designee, to execute Construction Contract No. PM 2425- 19 with Marina Landscape, Inc., of Orange, California, for the Mission Landscape and Irrigation Project for a total contract amount of $1,849,000 and authorize a 10% contingency of $184,900 for a total not-to-exceed contract amount of $2,033,900; and B
.
Authorize the City Manager, or his designee, to execute all documents required for the completion of the project including, but not limited to, contracts, agreements, assessments, reductions of retention accounts, and filing a notice of completion at the conclusion of all construction-related activities.
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 recommended Construction Contract with Marina Landscape, Inc. is in the amount of $1,849,000 plus a 10% contingency of $184,900 for a total not-to-exceed contract amount of $2,033,900. The Fiscal Year 2024-25 Adopted Budget includes $2,000,000 in appropriations in the Grant Fund awarded by the California Department of Transportation (Caltrans) for the Mission Boulevard Median Improvements Project and the remaining balance of the contract will be covered by the Public Works Agency Fiscal Year 2024-25 Adopted Operating Budget. As needed, additional appropriations will be requested in the future Budget Update Report to the City Council.
BACKGROUND & ANALYSIS:
On June 7, 2022, the City Council approved a Construction Contract to plant drought tolerant landscaping and install a high-efficiency drip irrigation system on the Mission Boulevard median between Benson Avenue and Mountain Avenue. The Mission Boulevard median between Mountain Avenue and Grove Avenue includes landscape consisting of ornamental turf, 143
shrubs, groundcover, and trees. In 2015, the City implemented Stage 2 water restrictions which prohibited watering ornamental turf on street medians with potable water. To comply with the Stage 2 water restrictions, Staff turned the water off at all the ornamental turf areas on the median, which subsequently led to the turf dying. Shrubs, groundcover, and trees continued to be irrigated using potable water.
Now that the City has moved from Stage 2 water restrictions to a Voluntary Conservation Stage, it is encouraged to use water saving strategies to reduce the amount of potable water being used for various activities. Staff is proposing to plant drought tolerant landscaping and install a high- efficiency drip irrigation system on the Mission Boulevard median between Mountain Avenue and Grove Avenue to conserve potable water. The landscaping will continue the same design from the strip of median running from Benson Avenue to Mountain Avenue. These features will also be compliant with the State Model Water Efficient Landscape Ordinance requirements, which mandates cities adopt ordinances to reduce water usage for landscaping purposes.
On September 4, 2024, the City solicited bids for Bid No. 1843, PM 2425-19 Mission Landscape and Irrigation Renovation Project. Five (5) bids were received, and all of them met the minimum bid criteria and standards necessary to perform the scope of work. A summary of the bid results are as follows:
Vendor
Location
Bid Amount
Marina Landscape, Inc.
Orange, CA
$1,849,000
Conserve Landcare
Thousand Palms, CA
$1,930,000
Southern California Landscape,
Inc.
Rancho Cucamonga, CA
$2,548,900
SGD Enterprises
Van Nuys, CA
$3,128,000
Superb Engineering, Inc.
Banning, CA
$3,165,671
Marina Landscape, Inc., of Orange, California, submitted the lowest responsive bid that met all requirements with a total cost of $1,849,000. Based on their credentials, pricing, and favorable reference checks, Staff recommends awarding the Construction Contract to Marina Landscape, Inc., for the Mission Landscape and Irrigation Renovation Project. 144
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Mission Landscape Renovation PM 2425-19 -1-
SECTION 00500 – CONTRACT FOR CONSTRUCTION
This Contract for Construction (“Contract”), No. ________ is made and entered as of ____________, by and between City of Ontario, with its principal place of business at 303 East “B” S
treet, Ontario, CA 91764, sometimes hereinafter called the “City” and Marina Landscape, 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 W ORK.
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 Documen ts as specified in Article 5, below, for the following Project:
Mission Landscape Renovation PM 2425-19
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 resul t of the Contractor’s failure to
comply with this obligation.
A
RTICLE 2. TIME FO R 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 120 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 One Million Eight Hundred Forty- Nine Thousand Dollars with Zero Cents ($ 1,849,000). 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.
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Mission Landscape Renovation PM 2425-19 -2- SECTION 00500 – CONTRACT FOR
CONSTRUCTION
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 $250 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.
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
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
Approved and fully executed Change Orders
Permits
Any other documents contained in or incorporated into the Contract The C
ontractor shall complete the Work in strict accordance with all of the Contract Documents. 146
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Mission Landscape Renovation PM 2425-19 -3- SECTION 00500 – CONTRACT FOR
CONSTRUCTION
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. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
147
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Mission Landscape Renovation PM 2425-19 -4- 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
ATT
EST:
By:
Sheila Mautz, Cit y Clerk
APPRO
VED AS TO FORM:
By:
Best Best & Krieger LLP
City Attorney
MARINA LANDSCAPE INC.
By:
Its:
Printed Name:
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
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Mission Landscape Renovation PM 2425-19 -5- SECTION 00700 – GENERAL CONDITIONS
SECTION 00700 – GENERAL CONDITIONS
ARTICLE 1 -TERMS; DEFINITIONS
1.1 D efined 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 s
ingular and plural thereof. In addition to terms specifically defined below, terms with i
nitial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms.
1. A ct of God – An earthquake of magnitude of 3.5 or higher on the Richter scale or a tidal wave.
2. A ddenda -- Written or graphic instruments issued prior to the submission of Bids which clarify, correct, or change the Contract Documents.
3. Additional Work -- N ew 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 G uarantee -- 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. B idder -- 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 t he par
ticular duties entrusted to them. Also sometimes referred to as the “ City’s R
epresentative” or “Representative” in the Contract Documents. The terms the City and Owner may be used interchangeably
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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 en tire integrated written agreement between the City and Contractor concerning the Work. “Contract” may be used interchangeably wit h “
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 -- A mount 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- S ite 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 obtaini ng
al
ternate 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.
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Mission Landscape Renovation PM 2425-19 -7- 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 S ubmittals 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 C
ontract is signed and delivered by the last of the two parties to sign and deliver.
8. E ngineer -- 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 t
he 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 the reof 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 am ended f
rom 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
Christmas Day - December 25
Day After Christmas – December 26
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Mission Landscape Renovation PM 2425-19 -8- SECTION 00700 – GENERAL CONDITIONS
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. N
otice of Completion -- The form which may be executed by the City constituting final acceptance of the Project.
14. N otice 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. P
roject -- The total construction of which the Work to be performed under the Contract Documents may be the whole, or a part.
16. R ecord Drawings – The record set of as-builts prepared by the Contractor during the Work in accordance with the requirements of the General Conditions.
17. R ecyclable 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. S
ample -- A physical example furnished by the Contractor to illustrate materials, equipment or workmanship; to establish standards by which the Work will be judged.
19. S chedule 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. S hop 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. S
ite -- 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. S pecifications -- That part of the Contract Documents consisting of written requirements for materials, equipment, systems, standards and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable thereto.
23. S
top Payment Notice -- A written notice as defined in Civil Code section 8044. 152
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Mission Landscape Renovation PM 2425-19 -9- SECTION 00700 – GENERAL CONDITIONS
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. S ubmittal -- Written and graphic information and physical samples prepared and supplied by the Contractor demonstrating various portions of the Work.
26. S uccessful Bidder -- The responsible Bidder submitting a responsive Bid to whom the City makes an award.
27. S upplier -- 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. U nderground 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. Un
it 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. W arranty -- 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 s tate, whichever is longer.
31. W
ork -- 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 Ter
minology.
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 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.
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3. The words “perform” or “provide,” when used in connec tion 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 W ork 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 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.
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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. S chedule 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. S chedule. Within ten (10) days after the is suance 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.
2.9 P
reconstruction 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 155
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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. i nterpretation of the Plans, Specifications, or other Contract Documents; and
5. Any other areas specifically identified in the Contract Documents or under the law.
C. C ompliance 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 in cluded 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.
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.
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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 Cal- OSHA 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 Cal- OSHA.
11. Full-time presence of Contractor’s superintendent at the job S ite 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 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. A
dditional 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.
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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. C ontractor’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 A pplicable 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 I ntent 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.
3.3 Reference Standards.
A. Standards, Specifications, Codes, Laws, and Regulations.
1. Reference to f ederal 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 Appli cable 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 158
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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 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
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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.
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 o wnership 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
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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), 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 durin g 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. 161
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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 S ubcontractor 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 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. 162
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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’ c ompensation 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 e mployees 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.
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.
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3. All general liability policies shall be written to apply to all bodily injury, including death, property damage, personal injury, owned and non- owned equipment, blanket contractual liability, completed operations liability, explosion, collapse, under-ground excavation, removal of lateral support, and other covered loss, however occasioned, occurring during the policy term, and shall specifically insure the performance by Contractor of that part of the indemnification contained in these General Conditions relating to liability for injury to or death of persons and damage to property.
4. If the coverage contains one or more aggregate limits, a minimum of 50% of any such aggregate limit must remain available at all times; if over 50% of any aggregate limit has been paid or reserved, the City may require additional coverage to be purchased by Contractor to restore the required limits. Contractor may combine primary, umbrella, and as broad as possible excess liability coverage to achieve the total limits indicated above. Any umbrella or excess liability policy shall include the additional insured endorsement described in the Contract Documents.
5. All policies of general liability insurance shall permit and Contractor does hereby waive any right of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss.
E. Automobile Liability Insurance. Contractor shall provide Automobile Liability Insurance at least as broad as ISO CA 00 01 (Any Auto) in the amount of, at least, one million dollars ($1,000,000) per accident for bodily injury and property damage.
Such insurance shall provide coverage w ith respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Contractor or for which Contractor is responsible, in a form and with insurance companies acceptable to the City. All policies of automobile insurance shall permit and Contractor does hereby waive any right of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss.
F. Builder’s Risk [“All Risk”]
1. It is the Contractor’s responsibility to maintain or cause to be maintained Builder’s Risk [“All Risk”] extended coverage insurance on all work, material, equipment, appliances, tools, and structures that are or will become part of the Work and subject to loss or damage by fire, and vandalism and malicious mischief, in an amount to cover 100% of the replacement cost. The City accepts no responsibility for the Work until the Work is formally accepted by the City . The Contractor shall provide a certificate evidencing this coverage before commencing performance of the Work.
2. The named insureds shall be Contractor, all Subcontractors of any tier (excluding those solely responsible for design work), suppliers, and 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. 164
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3. Policy shall be provided for replacement value on an “all risk” basis. There shall be no coinsurance penalty provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, nonconforming work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) transit coverage, including ocean marine coverage (unless insured by the supplier), with sub -limits sufficient to insure the full replacement value of any key equipment item; and (5) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site. Such insurance shall be on a form acceptable to the City to ensure adequacy and sublimit.
4. In addition, the policy shall meet the following requirements:
a. Insurance policies shall be so conditioned as to cover the performance of any extra work performed under the Contract.
b. Coverage shall include all materials stored on site and in transit. c. Coverage shall include Contractor’s tools and equipment. d. Insurance shall include boiler, machinery and material hoist coverage.
G. Contractor’s Pollution Liability Coverage . Contractor shall provide pollution liability insurance in an amount not less than $1,000,000 per occurrence and $2,000,000 aggregate.
H. Contractor shall require all tiers of 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 S ubcontractors 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.
I. 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.
J. 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 self- insured retentions must be declared by the Contractor. At the election of the City the Contractor shall either 1) reduce or eliminate such deductibles or self -insured retentions, or 2) procure a bond which guarantees payment of losses and related 165
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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.
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 166
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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.
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.
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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 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. 168
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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 w hich 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. C ontractor 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 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.
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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 th e 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.
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 (“State Water Board”) Order Number 2009- 0009-DWQ (NPDES Permit No. CAS000002), as amended by Order Numbers 2010- 0014-DWQ, 2012- 0006-DWQ, 2022-0057-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. 170
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C. Contractor shall comply with all conditions of the 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 wit h 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 j urisdiction, 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. A SWPPP must be prepared and Best Management Practices (BMP) must be implemented for the Project Site. A qualified SWPP Developer ( “QSD”) and a Qualified SWPPP Practitioner (“QSP”) for the project is required to prepare and implement the SWPPP for the Project Site, including condition and documenting weekly inspections of the project, pre- and post-storm event inspections and inspections every 24 hours, for annual reporting and proper site management. The Contractor shall retain personnel serving as QSD(s) that shall have an active and current certification. Engineering and/or geology work performed for the site shall be conducted by a California licensed professional.
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.
Before any NOI, PRD, SWPPP, or other Construction G eneral 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 171
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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, officer s, 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 f ederal, 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 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 non- compliance 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 t he 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 pe rformed in a manner to prevent da mage to property. When no longer required, construction roads shall be restored to original contours. Upon completion of the Work, and following re moval 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.
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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 m onitor 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 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.
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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 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. 174
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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
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 one- half 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 175
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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 i nspections before or after this time will be charged to the Contractor as reimbursable inspection time. Inspections on weekends requires two (2) D ays’ 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 S ite, 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
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. 176
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3. Any stop orders issued by the DIR against Contractor or any S ubcontractor 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 li quidated 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 obliterated in s uch 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 177
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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.
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 178
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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 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 S ubcontractor’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. 179
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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 S ubmittal 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.
B. S ubmittal 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.
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g. The City ’s review of S hop 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 S hop 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 S ubmittals 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.
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 S ubmittal will be one that is complete and satisfies the requirements of the Contract Documents.
5.23 S
hop Drawings and Sample Submittal Procedures.
A. Before submitting each Shop Drawing or Sample, Contractor shall have:
1. R eviewed 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. D etermined and verified all field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information with respect thereto;
3. D etermined 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 181
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4. D etermined 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 S ubmittal, 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 e ngineer 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.
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 d rawings 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. Cit y ’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 182
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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 R
ecord (“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 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 R ecord 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.
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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 coordinat e 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. C
ooperation. Contractor shall ascertain to its own satisfaction the scope of the Project and nature of any other contracts that have been or may be awarded by the City in 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 W
ork Site.
A. Limitation of Use of Site and Other Areas . Rights-of-way, easements, or rights-of- entry 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. 184
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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. C leaning. 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 Ut
ility 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 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 W ork 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 185
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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.
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 186
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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.
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 187
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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 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 188
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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.
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 re- notify 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 189
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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 W ork, and shall be removed from the P roject 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.
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.
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3. A statement of the cost implications of the substitution being requested, indicating whether and why the proposed substitution will reduce or increase the amount of the contract.
4. Information detailing the durability and lifecycle costs of the proposed substitution.
F. Failure to submit all the required substantiating data detailed above in a timely manner so that the substitution request can be adequately reviewed may result in rejection of the substitution request. The Engineer is not obligated to review multiple submittals related the same substitution request resulting from the Contractor’s failure to initially submit a complete package.
G. Time limitations within this Article shall be strictly complied with and in no case will an extension of time for completion of the contract be granted because of Contractor’s failure to provide substitution requests at the time and in the manner described herein.
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 B id and must make whatever tests it deems appropriate to determine the condition of the so
7.2 O wnership 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.
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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.
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 192
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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 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 193
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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 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. 194
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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 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 inspect ion 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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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. S chedule. 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 per forming 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. S
chedule 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. S
chedule 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 detailed look-ahead at weekly meetings conducted with the City. The two-week look- ahead schedule shall clearly identify all staffing and other resources which in the 196
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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. R
ecovery 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 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. 197
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8.3 Time for Completion and Liquidated Damages
A. Time for Completion. The time for completion set forth in Article 2 of the C ontract 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. Li
quidated 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. I
nclement 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. E
xtension 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 S uppliers). 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.
E. R
everse 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 198
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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. N
o 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. P
rocedure 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 C
ontractor’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 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. 199
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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.
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 200
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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 d ate 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.
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 201
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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 t he 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 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, 202
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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. Fi
nal 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 W
arranty 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.
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 203
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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 materi als 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.
1. If, instead of requiring correction or removal and replacement of d efective 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) attribut able 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.
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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 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 205
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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 C hange 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 A rticle. Notwithstanding issuance of a work d irective, 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. C ontractor’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 suc h that notice within three (3) Days is not possible or practicable. 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 circum stances 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 w ithin 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):
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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 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. C
ontractor’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
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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 c hange/delay and Change Order R equest, 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 c hanges. 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 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 mark- up added in instances of A dditional 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. Un
it 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.
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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. Ti me 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. Feder
ally 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 W ork 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. A
llowed Costs. Estimates for lump sum quotations and accounting for time -and- material 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 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. M
aterials . 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. 209
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(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.
(ii) For Work performed by the Contractor’s forces the allowed mark -up shall not exceed fifteen (15%) percent of l abor 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 S ubcontractor, 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 C ontractor 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 twenty- five 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.
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(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. E xcluded 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 time - and-materials invoices:
(i) O verhead Cost . Payroll costs and other compensation of Contractor’s officers, executives, principals, general managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, timekeepers, clerks, and other personnel employed by Contractor whether at the Site or in Contractor’s principal office or any branch office, material yard, or shop for general administration of the Work;
(ii) O
ffice 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) N
egligence. 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) S
mall Tools . Cost of small tools valued at less than $1,000 and that remain the property of Contractor;
(vi) A dministrative Costs . Costs associated with the preparation of Change O rders (whether or not ultimately authorized), cost estimates, or the preparation or filing of Claims;
(vii) A nticipated Lost Profits . Expenses of Contractor associated with anticipated lost profits or lost revenues, lost income or earnings, lost interest on earnings, or unpaid retention;
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(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) S pecial 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) Oth
er . 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: s ubmittals, drawings, field drawings, shop drawings, including submissions of drawi ngs; field inspection; general superintendence; computer services; reproduction s ervices; 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) C
ompliance 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.
9.2 P rocedure 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. Cla
ims. 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;
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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 C hange 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.
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 213
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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 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. M ediation. 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.
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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 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. Civ
il 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 215
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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 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 216
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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 U nit 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 o verhead 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.
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 u nit 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 217
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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.
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 218
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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 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 219
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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.
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. 220
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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 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 221
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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.
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. 222
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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, 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. Contractor shall comply, and shall ensure all subcontractors comply, with all applicable requirements of the most current version of the regulations imposed by California Air Resources Board (“CARB”) including, without limitation, all applicable terms of T itle 13, California Code of Regulations Division 3, Chapter 9 and all pending amendments (“Regulation”).
Throughout the Project, and for three (3) years thereafter, Contractor shall make available for inspection and copying any and all documents or information associated with Contractor’s and its subcontractors’ fleets including, without limitation, the Certificates of Reported Compliance (“CRCs”), fuel/refueling records, maintenance records, emissions records, and any other information the Contractor is required to produce, keep or maintain pursuant to the Regulation upon two (2) calendar days’ notice from the City.
Contractor shall be solely liable for any and all costs associated with compliance with the Regulation as well as for any and all penalties, fines, damages, or costs associated with any and all violations, or failures to comply with the Regulation.
Contractor shall defend, indemnify and hold harmless 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 alleged failure to comply with the Regulation
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F. 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
224
Department: Police Department
Prepared By: Mary Salem
Staff Member Presenting: Mike Lorenz, Chief of
Police
Reviewed By: Lizceth Zazueta
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 13
SUBJECT:
AN AMENDMENT TO THE GOODS AND SERVICES AGREEMENT WITH SAFARILAND
LLC FOR LAW ENFORCEMENT SAFETY EQUIPMENT
CITY OF ONTARIO
Agenda Report
November
5, 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 Safariland LLC, with its principal place of business in Jacksonville, Florida, increasing the authorized contract amount for specialized law enforcement safety equipment by $450,000, for a total not-to-exceed amount of $1,250,000.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Maintain the Current High Level of Public Safety
Operate in a Businesslike Manner
FISCAL IMPACT:
Amendment No. 2 to the Goods and Services Agreement with Safariland, LLC increases the authorized contract by $450,000 for a total not-to-exceed contract amount of $1,250,000. If approved by the City Council, appropriations in the General Fund will be requested in the next quarterly budget for Fiscal Year 2024-25 as needed. Appropriations for future fiscal years will be included in the respective fiscal years budgets for the City Council consideration and approval.
BACKGROUND & ANALYSIS:
On December 1, 2023, the City of Ontario entered into Amendment No. 1 with Safariland, LLC adding additional compensation and terms. Amendment No. 2 will add additional compensation to provide and replace specialized law enforcement safety equipment and supplies. Safariland, LLC is a major producer and supplier of law enforcement equipment and protective gear, including body armor, less lethal weapons, leather gear, and forensic supplies.
Certain items, such as protective vests and body armor, expire every five years after their manufacturing date. Hard armor is commonly made of ceramic, steel and/or composite materials.
Just a small chip or hairline crack can affect the plate’s integrity and its ability to stop incoming projectiles. Every piece of armor will eventually have to be replaced as it is not a one-time purchase.
Using a worn-down plate carrier or ballistic helmet, or one that is past its expiration date, may result in serious physical injuries. It is best practice to adhere to the manufacturer’s guidelines regarding replacing equipment.
225
The City Council approval of Amendment No. 2 with Safariland, LLC ensures that the Police Department personnel have the equipment and supplies necessary to perform their job duties safely and efficiently. Based on the satisfactory services and quality equipment provided to maintain the current high level of Public Safety, City Staff recommends entering into Amendment No. 2 with Safariland, LLC.
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46700.00100\33287662.1
BB&K 2020
SHEILA MAUTZ
CITY CLERK
JAMES R. MILHISER
TREASURER
SCOTT OCHOA
CITY MANAGER
PAUL S. LEON
MAYOR
DEBRA PORADA
MAYOR PRO TEM
ALAN D. WAPNER
JIM W. BOWMAN
RUBEN VALENCIA
COUNCIL MEMBERS
AMENDMENT NO. 2 TO THE GOODS AND SERVICES
AGREEMENT
BETWEEN THE CITY OF ONTARIO AND
SAFARILAND, LLC
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 Safariland, LLC , a Limited Liability Corporation (LLC) . City and Safariland, LLC (“Vendor”) are sometimes individually referred to as “Party” and collectively as “Parties.”
2. Recitals.
2.1 Agreement. T he City and Safariland, LLC have entered into an agreement entitled Goods and Services Agreement for Law Enforcement Safety Equipment dated June 16th, 2020 (“Agreement”).
2.2 Amendment Purpose. The City and Vendor desire to amend the Agreement to include additional compensation.
2.3 Amendment Authority . This Amendment No. 2 is authorized pursuant to Section
12.9 of the Agreement.
3. Terms.
3.1 Amendment. Section 3.1 of the Agreement is hereby amended in its entirety to read as follows:
3.1 Compensation. Vendor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C” attached in the original agreement and incorporated herein by reference. The total compensation shall not exceed One Million Two Hundred Fifty Thousand Dollars and Zero Cents ($1,250,000.00) 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 rates and manner set forth in this Agreement.
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BB&K 2020
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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46700.00100\33287662.1
BB&K 2020
SIGNATURE PAGE FOR AMENDMENT NO. 2 TO THE GOODS AND SERVICES
AGREEMENT BETWEEN THE CITY OF ONTARIO
AND SAFARILAND, LLC
IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 2 as of the day and year first above written.
CITY OF ONTARIO SAFARILAND, LLC
If Corporation, Two Signatures, President Or Vice President And Secretary Or Treasurer Required
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
229
Department: Financial Services
Prepared By: Stephanie Castro
Department:
Prepared By: Stephanie Castro
Staff Member Presenting: Armen Harkalyan,
Executive Director of Finance
Reviewed By: Claudia Hernandez, Matthew
Hernandez
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 14
SUBJECT:
A PUBLIC HEARING TO CONSIDER A RESOLUTION REGARDING THE FORMATION OF THE CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 72 (LOMA CREEK LOGISTICS CENTER SERVICES); AND INTRODUCTION OF AN ORDINANCE
LEVYING SPECIAL TAXES
CITY OF ONTARIO
Agenda Report
November
5, 2024
SECTION:
PUBLIC HEARINGS
RECOMMENDATION:
That the City Council consider and:
A
.
Adopt a Resolution of Formation of Community Facilities District No. 72 (Loma Creek Logistics Center Services), proposing that the community facilities district be authorized to levy a special tax and proposing that an appropriations limit of the community facilities district be established;
B
.
Adopt a Resolution calling a special election for City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services);
C
.
Adopt a Resolution declaring the results of the special election and directing the recording of a Notice of Special Tax Lien; and
D
.
Introduce and waive further reading of an ordinance levying special taxes within City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services).
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT:
The use of Mello-Roos financing in the Loma Creek Logistics Center development is projected to generate approximately
$133,848
annually, at buildout, to fund administrative fees
and municipal services. Approval from the City Council will be required in future years to process annual special tax levies.
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BACKGROUND & ANALYSIS:
The Mello-Roos Community Facilities Act of 1982 provides local government, with the consent from a majority of the property owners, the authority to establish community facilities districts for the purpose of levying special taxes to finance municipal services.
Municipal services that may be funded by a community facilities district include: police protection services, fire protection and suppression services, ambulance and paramedic services, maintenance and lighting of parks, parkways, streets, roads and open space, flood and storm protection services, maintenance and operation of fiber optic telecommunication, wireless communication and public safety camera systems and maintenance and operation of any real property or other tangible property with an estimated useful life of five or more years that is owned by the City. Under the Mello-Roos Act, the initial steps in the formation of a community facilities district to finance municipal services are to adopt resolutions decla
ring the intention to establish a community
facilities district and authorize the levy of special taxes. Accordingly, on September 17, 2024,
the
City Council approved Resolution
No. 2024-162,
a Resolution of Intention to establish City of
Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services) and authorize the levy of special taxes within the district.
The Resolution of Intention set the public hearing date for the regularly scheduled City Council meeting on November 5, 2024, to consider formation matters.
The Loma Creek Logistics Center project addresses the development of 23.87 gross acres located south of Chino Avenue, north of Ontario Ranch Road, west of Mill Creek Avenue, and east of Haven Avenue. At build out, the project is expected to include 535,168 square feet of industrial space.
Included, as part of the Resolution of Formation is the proposed Rate and Method of Apportionment of Special Tax for the District. The term and structure of the Rate and Method of Apportionment of Special Tax for the Loma Creek Logistics Center Services project is consistent with those of previously adopted Rates and Methods of Apportionment for the Ontario Ranch community facilities districts. This ensures that the special tax rates levied on all residential property owners in the Ontario Ranch community facilities districts are developed in a consistent and equivalent manner. In addition, under the provisions of the Mello-Roos Act, to ensure that home buyers are making an informed decision, all residential builders in the Ontario Ranch districts will be required to disclose the maximum annual special tax amount to each homeowner before entering into a sales contract.
Attached are three Resolutions and an Ordinance. The first attached Resolution establishes the community facilities district, with the rate and method of apportionment of special taxes and authorizes the levy of special taxes within the district. The second attached Resolution calls for a special landowner election to be held on November 5, 2024. The third attached Resolution declares the results of the election, including a statement from the City Clerk as to the canvass of ballots, and directs the recording of the Notice of Special Tax Lien. The attached Ordinance authorizes the levying of special taxes.
231
RESOLUTION NO. ________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,
CALIFORNIA, OF FORMATION OF CITY OF ONTARIO COMMUNITY
FACILITIES DISTRICT NO. 72 (LOMA CREEK LOGISTICS CENTER
SERVICES), PROPOSING THAT THE COMMUNITY FACILITIES
DISTRICT BE AUTHORIZED TO LEVY A SPECIAL TAX AND
PROPOSING THAT AN APPROPRIATIONS LIMIT OF THE COMMUNITY
FACILITIES DISTRICT BE ESTABLISHED
WHEREAS, on September 17, 2024, the City Council (the “City Council”) of the City of Ontario (the “City”), pursuant to the Mello-Roos Community Facilities Act of 1982 (the “Act”), adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, of Intention to Establish a Community Facilities District Proposed to be Named City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services) and to Authorize the Levy of a Special Tax Therein” (the “Resolution of Intention”), stating its intention to establish City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services) (the “Community Facilities District”), to authorize the Community Facilities District to levy a special tax within the Community Facilities District for the purpose of financing certain services and setting the date for a public hearing to be held on the establishment of the Community Facilities District; and
WHEREAS, pursuant to the Resolution of Intention, notice of said public hearing was published in the Inland Valley Daily Bulletin , a newspaper of general circulation published in the area of the Community Facilities District, in accordance with the Act; and
WHEREAS, on this date, the City Council opened, conducted and closed said public hearing; and
WHEREAS, pursuant to the Resolution of Intention, each officer of the City who is or will be responsible for providing one or more of the proposed types of services to be financed by the Community Facilities District was directed to study, or cause to be studied, the proposed Community Facilities District and, at or before said public hearing, file a report with the City Council containing a brief description of the services by type that will in his or her opinion be required to adequately meet the needs of the Community Facilities District, and his or her estimate of the cost of providing such services; such officers were also directed to estimate the fair and reasonable cost of the incidental expenses proposed to be paid; and
WHEREAS, said report was so filed with the City Council and made a part of the record of said public hearing; and
WHEREAS, at the hearing, the testimony of all persons for or against the establishment of the Community Facilities District, the extent of the Community Facilities District and the furnishing of the specified types of services was heard; and 232
WHEREAS, written protests against the establishment of the Community Facilities District, the furnishing of any specified type or types of services within the Community Facilities District or the levying of a specified special tax were not made or filed at or before said hearing by 50% or more of the registered voters, or six registered voters, whichever is more, residing within the territory proposed to be included in the Community Facilities District, or the owners of one-half or more of the area of land in the territory proposed to be included in the Community Facilities District and not exempt from the special tax; and
WHEREAS, there has been filed with the City Clerk of the City a letter from the Registrar of Voters of the County of San Bernardino indicating that no persons were registered to vote within the territory of the proposed Community Facilities District as of September 24, 2024, which demonstrates that 12 or more persons have not been registered to vote within the territory of the proposed Community Facilities District for each of the 90 days preceding the close of said public hearing; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario as follows:
SECTION 1. The foregoing recitals are true and correct, and the City Council so finds and determines.
SECTION 2. The Community Facilities District is hereby established.
SECTION 3. The name for the Community Facilities District is “City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services).” SECTION 4. The services (the “Services”) proposed to be financed by the Community Facilities District pursuant to the Act are described under the caption “Services” on Exhibit A hereto. The incidental expenses proposed to be incurred are identified under the caption “Incidental Expenses” on Exhibit A hereto. No facilities are proposed to be financed by the Community Facilities District.
SECTION 5. The proposed special tax to be levied within the Community Facilities District has not been precluded by majority protest pursuant to Section 53324 of the Act.
SECTION 6. The City Council proposes that, except where funds are otherwise available, the Community Facilities District be authorized to annually levy within the Community Facilities District a special tax (the “Special Tax”) sufficient to pay for all Services, secured by recordation of a continuing lien against all nonexempt real property in the Community Facilities District. The rate, method of apportionment and manner of collection of the Special Tax, in sufficient detail to allow each landowner or resident within the proposed Community Facilities District to estimate the maximum amount that he or she will have to pay, is specified in the Rate and Method of Apportionment of Special Tax (the “Rate and Method”) attached hereto as Exhibit B, which is by this reference incorporated herein. The obligation to pay the Special Tax 233
may not be prepaid and permanently satisfied. The Special Tax will be collected in the same manner as ordinary ad valorem property taxes or in such other manner as the City Council shall determine, including direct billing of the affected property owners.
SECTION 7. The Special Tax may only finance the Services to the extent that they are in addition to those provided in the territory of the Community Facilities District before the date the Community Facilities District is created. The Services may not supplant services already available within that territory when the Community Facilities District is created.
SECTION 8. The name, address and telephone number of the office, department or bureau that will be responsible for preparing annually a current roll of Special Tax levy obligations by assessor’s parcel number and that will be responsible for estimating further Special Tax levies pursuant to Section 53340.2 of the Act are as follows: City of Ontario, Financial Services Agency, 303 East B Street, Ontario, California 91764, (909) 395-2015 or email [email protected].
SECTION 9. Upon recordation of a notice of special tax lien pursuant to Section 3114.5 of the California Streets and Highways Code, a continuing lien to secure each levy of the Special Tax shall attach to all nonexempt real property in the Community Facilities District and this lien shall continue in force and effect until the Special Tax obligation is canceled in accordance with law or until the Special Tax ceases to be levied and a notice of cessation of the Special Tax is recorded in accordance with Section 53330.5 of the Act.
SECTION 10. The boundary map of the Community Facilities District has been recorded in San Bernardino County in Book 91 at Page 91 of Maps of Assessments and Community Facilities Districts in the San Bernardino County Recorder’s Office (Document No. 2024-0224532).
SECTION 11. The City Council proposes that the annual appropriations limit, as defined by subdivision (h) of Section 8 of Article XIII B of the California Constitution, of the Community Facilities District be established at $6,800,000.
SECTION 12. Pursuant to the provisions of the Act, the propositions to authorize the Community Facilities District to levy the Special Tax and to establish the appropriations limit of the Community Facilities District specified above shall be subject to the approval of the qualified electors of the Community Facilities District at a special election. The City Council hereby finds and determines that no persons were registered to vote within the territory of the proposed Community Facilities District as of September 24, 2024, and that 12 or more persons have not been registered to vote within the territory of the Community Facilities District for each of the 90 days preceding the close of the public hearing held by the City Council on the establishment of the Community Facilities District. Accordingly, pursuant to Section 53326 of the Act, the vote shall be by the landowners of the Community Facilities District and each person who is the owner of land as of the close of said public hearing, or the authorized representative thereof, shall have one vote for each acre or portion of an acre that he or she owns within the 234
Community Facilities District not exempt from the Special Tax. The voting procedure shall be by mailed or hand-delivered ballot.
SECTION 13. The City Council hereby finds and determines that all proceedings up to and including the adoption of this Resolution were valid and in conformity with the requirements of the Act. In accordance with Section 53325.1 of the Act, such finding shall be final and conclusive.
SECTION 14. All actions heretofore taken by the officers, employees and agents of the City with respect to the establishment of the Community Facilities District, or in connection with or related to any of the matters referred to herein, are hereby approved, confirmed and ratified.
SECTION 15. The officers, employees and agents of the City are hereby authorized and directed to take all actions and do all things that they, or any of them, may deem necessary or desirable to accomplish the purposes of this Resolution and not inconsistent with the provisions hereof.
SECTION 16. This Resolution shall take effect immediately upon its adoption.
The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 5th day of November, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________
SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
235
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2024- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held November 5, 2024 by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2024- duly passed and adopted by the Ontario City Council at their regular meeting held November 5, 2024. _____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
236
EXHIBIT A
SERVICES AND INCIDENTAL EXPENSES
Services
The types of City services to be financed by the Community Facilities District are police protection services, fire protection and suppression services, ambulance and paramedic services, maintenance and lighting of parks, parkways, streets, roads and open space, flood and storm protection services, maintenance and operation of fiber optic telecommunication, wireless communication and public safety camera systems and maintenance and operation of any real property or other tangible property with an estimated useful life of five or more years that is owned by the City.
Incidental Expenses
The incidental expenses proposed to be incurred include the costs associated with the creation of the Community Facilities District, determination of the amount of taxes, collection of taxes, payment of taxes, or costs otherwise incurred in order to carry out the authorized purposes of the Community Facilities District. 237
EXHIBIT B
RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
238
City of Ontario CFD No. 72 1 August 19, 2024
CITY OF ONTARIO
COMMUNITY FACILITIES DISTRICT NO. 72
(LOMA CREEK LOGISTICS CENTER SERVICES)
RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
A Special Tax shall be levied on all Assessor’s Parcels in the City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services) (“CFD No. 72”) and collected each Fiscal Year commencing in Fiscal Year 2025-26, in an amount determined by the City Council of the City of Ontario through the application of the Rate and Method of Apportionment, as described below.
All of the real property in CFD No. 72, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent, and in the manner herein provided.
A. DEFINITIONS
The terms as may hereinafter be set forth have the following meanings:
“Act” means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter
2.5 of Part 1 of Division 2 of Title 5 of the California Government Code.
“Administrative Expenses” means the following actual or reasonably estimated costs directly related to the administration of CFD No. 72: the costs of computing the Special Taxes and preparing the annual Special Tax co llection schedules (whether by the City or CFD No. 72 or both); the costs of collecting the Special Taxes (whether by the County or otherwise); the costs associated with prepar ing Special Tax disclo sure statements and responding to public inquiries regarding the Special Taxes; the costs of the City or CFD No. 72 related to an appeal of the Special Tax; the City’s administration fees and third party expenses; the costs of City staff time and reasonable overhead related to CFD No. 72; and amounts estimated or advanced by the City or CFD No. 72 for any other administrative purposes of CFD No. 72, including attorney’s fees and other costs related to commencing and pursuing to completion any foreclosure of delinquent Special Taxes.
“Assessor’s Parcel” means a lot or parcel shown on an Assessor’s Parcel Map with an assigned Assessor’s Parcel Number.
“Assessor’s Parcel Map” means an official map of the Assessor of the County designating parcels by Assessor’s Parcel Number.
“Assessor’s Parcel Number” means, with respect to an Assessor’s Parcel, that number assigned to such Assessor’s Parcel by the County for purposes of identification.
“CFD Administrator” means an official of the City responsible for determining the Special Tax Requirement, providing for the levy and collection of the Special Tax, and performing the other duties provided for herein.
239
City of Ontario CFD No. 72 2 August 19, 2024
“CFD No. 72” means City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services).
“City” means the City of Ontario, California.
“City Council” means the City Council of the City, acting as the legislative body of CFD No. 72.
“County” means the County of San Bernardino.
“Fiscal Year” means the period starting July 1 and ending on the following June 30.
“Gated Community Attached Dwelling Unit” means a Unit within any residential building containing two or more dwelling units (i ncluding attached c ondominiums, townhouses, duplexes, triplexes, and apartments) within a gated community that, within such community, is primarily served by private interior streets.
“Land Use Class” means any of the classes listed in Table 1 below.
“Lower Income Household Welfare Exemption Property” means, for each Fiscal Year, an Assessor’s Parcel within the boundaries of CFD No. 72 that is subject to a welfare exemption under subdivision (g) of Section 214 of the California Revenue and Taxation Code (or any successor statute), as indicated in the most recent County assessor’s roll finalized prior to such Fiscal Year.
“Maximum Special Tax” means, with respect to an Assessor’s Parcel of Taxable Property, the maximum Special Tax determined in accordance with Section C below that can be levied in any Fiscal Year on such Assessor’s Parcel of Taxable Property.
“Multiple Family Dwelling Unit” means a Unit within any residential building containing two or more dwelling units, including at tached condominiums, townhomes, duplexes, triplexes, and apartments, but excluding Gated Community Attached Dwelling Units.
“Non-Residential” means any buildings that are for commercial lodging use, commercial retail use, institutional use (e.g., churches, private schools), commercial restaurant use, office use, or industrial use.
“Non-Residential Property” means, for each Fiscal Year, an Assessor’s Parcel for which a building permit for new construction was issued after January 1, 2023, and before May 1 of the prior Fiscal Year, for a Non-Residential use.
“Property Owner Association Property” means, for each Fiscal Year, property within the boundaries of CFD No. 72 that was owned by a property owner association, including any master or sub-association, as of January 1 of the prior Fiscal Year.
240
City of Ontario CFD No. 72 3 August 19, 2024
“Proportionately” means that the ratio of the actual Special Tax levy to the Maximum Special Tax is equal for all Assessor's Parcels of Taxable Property.
“Public Property” means, for each Fiscal Year, property within the boundaries of CFD No. 72 that is (a) owned by, irrevocably offered to, or dedicated to the federal government, the State, the County, the City, or any local go vernment or other public agency or (b) encumbered by an easement for purposes of public or utility right-of-way that makes impractical its use for any purpose other than that set forth in such easement, provided that any property leased by a public agency to a private entity and subject to taxation under Section 53340.1 of the Act shall be taxed and classified according to its use.
“Rate and Method of Apportionment” means this Rate and Method of Apportionment of Special Tax.
“Residential Property” means, for each Fiscal Year, an Assessor’s Parcel for which a building permit for new construction of one or more Units was issued after January 1, 2023, and before May 1 of the prior Fiscal Year.
“Services” means the services authorized to be financed, in whole or in part, by CFD No. 72, including: police protection services; fire protection and suppression services; ambulance and paramedic services; maintenance and lighting of parks, parkways, streets, roads, and open space; flood and storm protection services; maintenance and operation of fiber optic telecommunication, wireless communication, and public safety camera systems; and maintenance and operation of any real pr operty or other tangible property with an estimated useful life of five or more years that is owned by the City.
“Single Family Detached Dwelling Unit” means any residential building containing only one Unit on one legal lot, including single fa mily residences and single family detached residential condominium units.
“Special Tax” means the special tax authorized by the qualified electors of CFD No. 72 to be levied within the boundaries of CFD No. 72.
“Special Tax Requirement” means the amount necessary in any Fiscal Year to pay the cost of the Services, Administrative Expenses, and an amount equal to Special Tax delinquencies based on the historical delinque ncy rate for Special Taxes, as determined by the CFD Administrator.
“Square Footage” or “Sq. Ft.” means, with respect to a building of Non-Residential Property, the gross floor area square footage reflected on the original construction building permit, or as set forth in other official records maintained by the City’s Building Department or other appropriate means se lected by CFD No. 72, for such building, plus any square footage subsequently added to a building of Non-Residential Property after issuance of a building permit for expansion or renovation of such building.
“State” means the State of California.
241
City of Ontario CFD No. 72 4 August 19, 2024
“Taxable Property” means, for each Fiscal Year, a ll Assessor’s Parcels of Residential Property and Non-Residential Property within the boundaries of CFD No. 72 which are not exempt from the Special Tax pursuant to law or Section E below.
“Unit” means an individual single -family detached or attached home, townhome, condominium, apartment unit, or other reside ntial dwelling unit, including each separate living area within a half-plex, duplex, triplex, fourplex, or other residential structure.
B. ASSIGNMENT TO LAND USE CATEGORIES
Each Fiscal Year, beginning with Fiscal Year 2025-26, all Taxable Property within CFD No. 72 shall be classified as Residential Prope rty (Single Family Detached Dwelling Unit, Multiple Family Dwelling Unit, or Gated Co mmunity Attached Dwelling Unit) or Non- Residential Property and shall be subject to Special Taxes in accordance with the Rate and Method of Apportionment as determined pursuant to Sections C and D below.
C. MAXIMUM SPECIAL TAX
The Maximum Special Tax for each Assessor’s Parcel classified as Taxable Property shall be determined by reference to Table 1 below.
TABLE 1
MAXIMUM SPECIAL TAX
Land Use Class Maximum Special Tax
Fiscal Year 2025-26
Residential Property:
Single Family Detached Dwelling Unit $1,426.38 per Unit Multiple Family Dwelling Unit $1,236.46 per Unit
Gated Community Attached Dwelling Unit $1,036.38 per Unit Non-Residential Property $0.260110 per Sq. Ft.
On January 1 of each Fiscal Year, commencing January 1, 2026, the Maximum Special Tax to be applied in the next Fiscal Year shall be subject to an automatic increase at a rate equal to 4.0% of the amount in effect for the prior Fiscal Year.
In some instances an Assessor’s Parcel of Taxable Property may contain more than one Land Use Class. The Maximum Special Tax levied on such Assessor’s Parcel shall be the sum of the Maximum Special Tax for all Units of Residential Property and Square Footage of Non- Residential Property (based on the applicable building permits, final subdivision map, parcel map, condominium plan, or other recorded County map) located on that Assessor’s Parcel. 242
City of Ontario CFD No. 72 5 August 19, 2024
D. METHOD OF APPORTIONM ENT OF THE SPECIAL TAX
Each Fiscal Year, beginning with Fiscal Year 2025-26, the CFD Administrator shall determine the Special Tax Requirement. The Special Tax shall then be levied Proportionately on each Assessor’s Parcel of Taxable Property up to 100% of the applicable Maximum Special Tax for such Assessor’s Parc el, until the Special Tax Requirement is satisfied. However, the Special Tax levied in any Fiscal Year shall not increase by more than 4.0% of the amount of the Special Tax levied in the prior Fiscal Year.
E. EXEMPTIONS
Notwithstanding anything in this Rate and Method of Apportionment to the contrary, no Special Tax shall be levied on Public Property or Property Owner Association Property.
No Special Tax shall be levied on Lower Income Household Welfare Exemption Property; provided, however, that if, in any Fiscal Year, applicable law does not require that Lower Income Household Welfare Exemption Property be exempt from some portion, or all, of the Special Tax, such portion, or all, of the Speci al Tax shall be levied on such property in accordance with this Rate and Method of A pportionment based on the Land Use Class to which the Assessor’s Parcel is assigned.
F. APPEALS
Any property owner may file a written appeal of the Special Tax with CFD No. 72 claiming that the amount or application of the Special Tax is not correct. The appeal must be filed not later than one calendar year af ter having paid the Special Ta x that is disputed, and the appellant must be current in all payments of Special Taxes. In addition, during the term of the appeal process, all Special Taxes levied must be paid on or before the payment date established when the levy was made.
The appeal must specify the reasons why the appe llant claims the Special Tax is in error.
The CFD Administrator shall review the app eal, meet with the appellant if the CFD Administrator deems necessary, and advise the appellant of its determination.
If the property owner disagrees with the CFD Administrator’s decision relative to the appeal, the owner may then file a written appeal with the City Council, whose subsequent decision shall be final and binding on all interested parties. If the decision of the CFD Administrator or subsequent decision by the City Council requ ires the Special Tax to be modified or changed in favor of the prope rty owner, then the CFD Administrator shall determine if sufficient Special Tax revenue is available to make cash refund. If a cash refund cannot be made, then an adjustment shall be made to credit future Special Tax levy(ies).
This procedure shall be exclusive and its exhaustion by any propert y owner shall be a condition precedent to filing any legal action by such owner.
243
City of Ontario CFD No. 72 6 August 19, 2024
G. MANNER OF COLLECTION
The Special Taxes shall be collected in the same manner and at the same time as ordinary ad valorem property taxes; provided, however, that the Special Taxes may be collected in such other manner as the City C ouncil shall determine, includi ng direct billing of affected property owners.
H. TERM OF SPECIAL TAX
The Special Tax shall continue to be levied indefinitely on an annual basis on all Taxable Property in CFD No. 72.
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RESOLUTION NO. ________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ONTARIO, CALIFORNIA, CALLING SPECIAL ELECTION
FOR CITY OF ONTARIO COMMUNITY FACILITIES
DISTRICT NO. 72 (LOMA CREEK LOGISTICS CENTER
SERVICES)
WHEREAS, on this date, the City Council (the “City Council”) of the City of Ontario (the “City”), pursuant to the Mello-Roos Community Facilities Act of 1982 (the “Act”), adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, of Formation of City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services), Proposing that the Community Facilities District be Authorized to Levy a Special Tax and Proposing that an Appropriations Limit of the Community Facilities District Be Established” (the “Resolution of Formation”), establishing City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services) (the “Community Facilities District”), proposing that the Community Facilities District be authorized to levy a special tax (the “Special Tax”) within the Community Facilities District for the purpose of financing certain services and proposing that an appropriations limit of the Community Facilities District be established at $6,800,000; and WHEREAS, pursuant to the provisions of the Act and the Resolution of Formation, the propositions to authorize the Community Facilities District to levy the Special Tax and to establish such appropriations limit of the Community Facilities District are to be submitted to the qualified electors of the Community Facilities District at a special election; and
WHEREAS, the City Council desires to designate the City Clerk of the City (the “City Clerk”) as the election official for such special election; and WHEREAS, there has been filed with the City Clerk a letter from the Registrar of Voters of the County of San Bernardino indicating that no persons were registered to vote within the territory of the Community Facilities District as of September 24, 2024, which demonstrates that 12 or more persons have not been registered to vote within the territory of the Community Facilities District for each of the 90 days preceding the close of the public hearings on the establishment of the Community Facilities District; and WHEREAS, there has been filed with the City Clerk consents and waivers of all of the landowners of record in the Community Facilities District consenting to the waiver of, and waiving, any time limit specified by Section 53326 of the Act and any requirement pertaining to the conduct of said special election, consenting to the holding of said special election on November 5, 2024 and consenting to the waiver of, and waiving, any impartial analysis, arguments or rebuttals, as set forth in Sections 53326 and 53327 of the Act; and WHEREAS, the City Clerk has concurred in said waivers and has concurred in holding said special election on November 5, 2024;
245
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario as follows:
SECTION 1. The foregoing recitals are true and correct, and the City Council so finds and determines.
SECTION 2. Pursuant to Sections 53326 and 53325.7 of the Act, the propositions to authorize the Community Facilities District to levy the Special Tax and to establish the appropriations limit of the Community Facilities District shall be submitted to the qualified electors of the Community Facilities District at an election called therefor as provided below.
SECTION 3. The City Clerk is hereby designated as the official to conduct said election.
SECTION 4. As authorized by Section 53353.5 of the Act, the propositions to authorize the Community Facilities District to levy the Special Tax and to establish such appropriations limit of the Community Facilities District shall be combined into one ballot proposition.
SECTION 5. The City Council hereby finds and determines that no persons were registered to vote within the territory of the Community Facilities District as of September 24, 2024, and that 12 or more persons have not been registered to vote within the territory of the Community Facilities District for each of the 90 days preceding the close of the public hearings heretofore held by the City Council on the establishment of the Community Facilities District. Accordingly, pursuant to Section 53326 of the Act, the vote shall be by the landowners of the Community Facilities District and each person who is the owner of land as of the close of said public hearings, or the authorized representative thereof, shall have one vote for each acre or portion of an acre that he or she owns within the Community Facilities District not exempt from the Special Tax.
SECTION 6. The City Council hereby finds and determines that the qualified electors of the Community Facilities District have (a) unanimously consented to the waiver of, and have waived, any time limit specified by Section 53326 of the Act and any requirement pertaining to the conduct of said election, (b) unanimously consented to the holding of said election on November 5, 2024, and (c) unanimously consented to the waiver of, and have waived, any impartial analysis, arguments or rebuttals, as set forth in Sections 53326 and 53327 of the Act. The City Council hereby finds and determines that the City Clerk has concurred in said waivers and has concurred in holding said election on November 5, 2024.
SECTION 7. The City Council hereby calls a special election to submit to the qualified electors of the Community Facilities District the combined ballot proposition to authorize the Community Facilities to levy the Special Tax and to establish the appropriations limit of the Community Facilities District at $6,800,000, which election shall be held at 303 East B Street, Ontario, California, on November 5, 2024. The City 246
Council has caused to be provided to the City Clerk, as the official to conduct the election, the Resolution of Formation, a certified map of sufficient scale and clarity to show the boundaries of the Community Facilities District and a sufficient description to allow the City Clerk to determine the boundaries of the Community Facilities District.
The voted ballots shall be returned to the City Clerk not later than 7:30 p.m. on November 5, 2024; provided, however, that if all of the qualified electors have voted prior to such time, the election may be closed with the concurrence of the City Clerk.
SECTION 8. Pursuant to Section 53326 of the Act, the election shall be conducted by mail or hand-delivered ballot pursuant to Section 4000 et. seq. of the California Elections Code. Except as otherwise provided in the Act, the provisions of law regulating elections of the City, insofar as they may be applicable, shall govern the election.
SECTION 9. The form of the ballot for the election, which sets forth the measure to be submitted to the voters, is attached hereto as Exhibit A and by this reference incorporated herein, and such form of ballot is hereby approved. The City Clerk shall cause to be delivered to each of the qualified electors of the Community Facilities District a ballot in said form, together with all supplies and written instructions necessary for the use and return of the ballot. The number of votes to be voted by a particular landowner shall be specified on the ballot provided to that landowner.
The identification envelope for return of a ballot shall be enclosed with such ballot, shall have the return postage prepaid, and shall contain: (a) the name and address of the landowner, (b) a declaration, under penalty of perjury, stating that the voter is the owner of record or the authorized representative of the landowner entitled to vote and is the person whose name appears on the identification envelope, (c) the printed name and signature of the voter, (d) the date of signing and place of execution of the declaration described in clause (b) above, and (e) a notice that the envelope contains an official ballot and is to be opened only by the canvassing board.
Analysis and arguments with respect to the measure submitted to the voters are hereby waived, as provided in Section 53327 of the Act.
SECTION 10. The City Clerk shall accept the ballots of the qualified electors in the office of the City Clerk at 303 East B Street, Ontario, California, to and including 7:30 p.m. on November 5, 2024, whether said ballots be personally delivered or received by mail. The City Clerk shall have available ballots that may be marked at said location on the election day by said qualified electors.
SECTION 11. The City Council hereby determines that the services financed by the Community Facilities District are necessary to meet increased demands placed upon local agencies as a result of development occurring in the Community Facilities District.
247
SECTION 12. All actions heretofore taken by the officers, employees and agents of the City with respect to the special election called pursuant hereto, or in connection with or related to any of the matters referred to herein, are hereby approved, confirmed and ratified.
SECTION 13. The officers, employees and agents of the City are hereby authorized and directed to take all actions and do all things that they, or any of them, may deem necessary or desirable to accomplish the purposes of this Resolution and not inconsistent with the provisions hereof.
SECTION 14. This Resolution shall take effect immediately upon its adoption.
The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 5th day of November, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________
SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
248
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2024- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held November 5, 2024 by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2024- duly passed and adopted by the Ontario City Council at their regular meeting held November 5, 2024. _____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
249
EXHIBIT A
OFFICIAL BALLOT
CITY OF ONTARIO
November 5, 2024
SPECIAL ELECTION
This ballot is for a special, landowner election. The number of votes to be voted pursuant to this ballot is ____.
INSTRUCTIONS TO VOTERS:
To vote on the measure, mark a cross (+ or X) in the voting square after the word “YES” or after the word “NO”. All distinguishing marks or erasures are forbidden and make the ballot void. If you wrongly mark, tear or deface this ballot, return it to the City Clerk of the City of Ontario and obtain another.
CITY OF ONTARIO
COMMUNITY FACILITIES DISTRICT NO. 72
(LOMA CREEK LOGISTICS CENTER SERVICES)
MEASURE: Shall the measure to authorize City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services) (the “Community Facilities District”) to levy a special tax in order to finance certain services and to establish the annual appropriations limit of the Community Facilities District at $6,800,000, as specified in the resolution adopted by the City Council of the City of Ontario on November 5, 2024 entitled “A Resolution of the City Council of the City of Ontario, California, of Formation of City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services), Proposing that the Community Facilities District be Authorized to Levy a Special Tax and Proposing that an Appropriations Limit of the Community Facilities District Be Established,” be adopted?
Yes:
No:
250
RESOLUTION NO. ________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,
CALIFORNIA, DECLARING RESULTS OF SPECIAL ELECTION AND
DIRECTING RECORDING OF NOTICE OF SPECIAL TAX LIEN
WHEREAS, on November 5, 2024, the City Council (the “City Council”) of the City of Ontario (the “City”), pursuant to the Mello-Roos Community Facilities Act of 1982 (the “Act”), adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, Calling Special Election for City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services)” (the “Resolution Calling Election”), calling a special election to submit to the qualified electors of City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services) (the “Community Facilities District”) the combined ballot proposition to authorize the Community Facilities District to levy a special tax and to establish the appropriations limit of the Community Facilities District; and
WHEREAS, pursuant to the terms of the Resolution Calling Election and the provisions of the Act, the special election was held on November 5, 2024; and WHEREAS, the City Clerk of the City (the “City Clerk”) has certified the canvass of the returns of the election and has filed a Canvass and Statement of Results of Election (the “Canvass”), a copy of which is attached hereto as Exhibit A; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario as follows:
SECTION 1. The foregoing recitals are true and correct, and the City Council so finds and determines.
SECTION 2. The City Council has received, reviewed and hereby accepts the Canvass.
SECTION 3. The City Council hereby finds and declares that the ballot proposition submitted to the qualified electors of the Community Facilities District pursuant to the Resolution Calling Election has been passed and approved by such electors in accordance with Section 53328 and Section 53325.7 of the Act.
SECTION 4. The City Clerk is hereby directed to execute and cause to be recorded in the office of the County Recorder of the County of San Bernardino a notice of special tax lien in the form required by the Act, said recording to occur no later than 15 days following adoption by the City Council of this Resolution.
SECTION 5. All actions heretofore taken by the officers, employees and agents of the City with respect to the special election, or in connection with or related to any of the matters referred to herein, are hereby approved, confirmed and ratified. 251
SECTION 6. The officers, employees and agents of the City are hereby authorized and directed to take all actions and do all things that they, or any of them, may deem necessary or desirable to accomplish the purposes of this Resolution and not inconsistent with the provisions hereof.
SECTION 7. This Resolution shall take effect immediately upon its adoption.
The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 5th day of November, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________
SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
252
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2024- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held November 5, 2024 by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2024- duly passed and adopted by the Ontario City Council at their regular meeting held November 5, 2024. _____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
253
EXHIBIT A
[See attached]
254
CITY OF ONTARIO
COMMUNITY FACILITIES DISTRICT NO. 72
(LOMA CREEK LOGISTICS CENTER SERVICES)
CANVASS AND STATEMENT OF RESULTS OF ELECTION
I hereby certify that on November 5, 2024, I canvassed the returns of the special election for City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services) held on November 5, 2024, that the total number of ballots cast in said Community Facilities District and the total number of votes cast for and against the combined ballot proposition submitted to the qualified electors of the Community Facilities District are as follows and that the totals as shown for and against such proposition are true and correct:
Qualified
Landowner
Votes
Votes
Cast YES NO
City of Ontario Community Facilities
District No. 72 (Loma Creek Logistics
Center Services) Special Election,
November 5, 2024
24 ___ ___ ___
MEASURE: Shall the measure to authorize City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services) (the “Community Facilities District”) to levy a special tax in order to finance certain services and to establish the annual appropriations limit of the Community Facilities District at $6,800,000, as specified in the resolution adopted by the City Council of the City of Ontario on November 5, 2024 entitled “A Resolution of the City Council of the City of Ontario, California, of Formation of City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services), Proposing that the Community Facilities District be Authorized to Levy a Special Tax and Proposing that an Appropriations Limit of the Community Facilities District Be Established,” be adopted?
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND this 5th day of November, 2024.
By:
SHEILA MAUTZ, CITY CLERK
255
ORDINANCE NO. ________
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO,
CALIFORNIA, LEVYING A SPECIAL TAX WITHIN CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 72 (LOMA CREEK LOGISTICS
CENTER SERVICES)
WHEREAS, on September 17, 2024, the City Council (the “City Council”) of the City of Ontario (the “City”), pursuant to the Mello-Roos Community Facilities Act of 1982 (the “Act”), adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, of Intention to Establish a Community Facilities District Proposed to be Named City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services) and to Authorize the Levy of a Special Tax Therein” stating its intention to establish City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services) (the “Community Facilities District”) and to authorize the Community Facilities District to levy a special tax (the “Special Tax”) within the Community Facilities District for the purpose of financing certain services (the “Services”); and
WHEREAS, on November 5, 2024, the City Council held a noticed public hearing on the establishment of the Community Facilities District, as required by the Act; and WHEREAS, subsequent to the close of said hearing, the City Council adopted resolutions entitled “A Resolution of the City Council of the City of Ontario, California, of Formation of City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services), Proposing that the Community Facilities District be Authorized to Levy a Special Tax and Proposing that an Appropriations Limit of the Community Facilities District Be Established” (the “Resolution of Formation”) and “A Resolution of the City Council of the City of Ontario, California, Calling Special Election for City of Ontario Community Facilities District No. 72 (Loma Creek Logistics Center Services),” which resolutions established the Community Facilities District, proposed that the Community Facilities District be authorized to levy the Special Tax within the Community Facilities District, proposed that an appropriations limit of the Community Facilities District be established and called a special election to submit to the qualified electors of the Community Facilities District the combined ballot proposition to authorize the Community Facilities District to levy the Special Tax and to establish the appropriations limit of the Community Facilities District; and
WHEREAS, on November 5, 2024, an election was held in which the qualified electors of the Community Facilities District approved said proposition by more than the two-thirds vote required by the Act; and
WHEREAS, the City Council is the legislative body of the Community Facilities District;
256
THE CITY COUNCIL OF THE CITY OF ONTARIO DOES ORDAIN AS
FOLLOWS:
SECTION 1. The City Council hereby authorizes and levies the Special Tax within the Community Facilities District pursuant to Sections 53328 and 53340 of the Act, at the rate and in accordance with the method of apportionment set forth in Exhibit B to the Resolution of Formation (the “Rate and Method”). The Special Tax is hereby levied commencing in fiscal year 2025-26 and in each fiscal year thereafter until the last fiscal year in which the Special Tax is authorized to be levied pursuant to the Rate and Method.
SECTION 2. The City Council may, pursuant to subdivision (b) of Section 53340 of the Act, provide, by resolution, for the levy of the Special Tax in the current tax year or in future tax years at the same rate or at a lower rate than the rate provided by this Ordinance. In no event shall the Special Tax be levied on any parcel within the Community Facilities District in excess of the maximum tax specified therefor in the Rate and Method.
SECTION 3. The Special Tax shall be levied on all of the parcels in the Community Facilities District, unless exempted by law or by the Rate and Method.
SECTION 4. The proceeds of the Special Tax shall only be used to pay, in whole or in part, the cost of providing the Services and incidental expenses pursuant to the Act.
SECTION 5. The Special Tax shall be collected in the same manner as ordinary ad valorem property taxes are collected and shall be subject to the same penalties and the same procedure, sale and lien priority in the case of delinquency as is provided for ad valorem taxes or in such other manner as the City Council shall determine, including direct billing of the affected property owners.
SECTION 6. If for any reason any portion of this Ordinance is found to be invalid, or if the Special Tax is found inapplicable to any particular parcel within the Community Facilities District by a court of competent jurisdiction, the balance of this Ordinance and the application of the Special Tax to the remaining parcels within the Community Facilities District shall not be affected.
SECTION 7. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within fifteen (15) days of the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.
257
PASSED, APPROVED, AND ADOPTED this ________ day of _________ 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________
SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
258
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. _______ was duly introduced at a regular meeting of the City Council of the City of Ontario held _____________ and adopted at the regular meeting held ___________, 2024 by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
_________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
I hereby certify that the foregoing is the original of Ordinance No. _______ duly passed and adopted by the Ontario City Council at their regular meeting held ____________ and that Summaries of the Ordinance were published on ___________ and _____________, in the Inland Valley Daily Bulletin newspaper. __________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
259
Department: Financial Services
Prepared By: Jennifer Schaefer
Staff Member Presenting: Armen Harkalyan,
Executive Director of Finance
Reviewed By: Doreen Nunes
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 15
SUBJECT:
A PUBLIC HEARING REGARDING AN ECONOMIC DEVELOPMENT SUBSIDY REPORT
AND LOAN AGREEMENT BETWEEN THE CITY OF ONTARIO AND CORE HOTEL
VENTURE, LLC AND CONSIDERATION OF RESOLUTION
CITY OF ONTARIO
Agenda Report
November
5, 2024
SECTION:
PUBLIC HEARINGS
RECOMMENDATION:
That the City Council take the following actions:
A
.
Consider and adopt a Resolution authorizing the execution of a Loan Agreement and other related documents in connection with providing a loan to CORE Hotel Venture, LLC and accepting the Economic Development Subsidy Report prepared pursuant to Government Code Section 53083.
B
.
Direct City Staff to file a Notice of Exemption based upon the City Council's finding that there is no possibility that the approval of this Loan Agreement will have a significant effect on the environment and therefore, no environmental analysis is required.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
FISCAL IMPACT:
The City will issue a loan to CORE Hotel Venture, LLC in an amount not-to-exceed $20,000,000 with an annual interest rate of 5.02% on the first $15,000,000 borrowed and an annual interest rate of 7.02% on additional amounts borrowed up to $5,000,000. The loan will be funded from the available fund balance of the City's Leave Liability Fund and will be repaid within three years from the initial draw. The budget will be included in the next quarterly budget update for Fiscal Year 2024-25.
BACKGROUND & ANALYSIS:
The City of Ontario (the "City") operates a convention center and airport adjacent to the Ontario Airport Hotel and Conference Center property, located at 700 N.
Haven Avenue, Ontario, CA 91764 (the "Property"). The prior owner and operator of the Property filed a voluntary petition in Bankruptcy under Chapter 11. CORE Hotel Venture, LLC ("CORE") has purchased the Property from the debtor under the bankruptcy and is planning the rehabilitation and reopening of the Property. CORE has requested a short-term loan from the City to provide 260
temporary funding for the rehabilitation and reopening of the property. The City has established criteria for the City to provide such loans (the "Program"). The criteria includes that the loan must be reasonably related to a legitimate governmental purpose and expenditures must be for a public purpose. An analysis of financial feasibility and community necessity to proceed must be prepared.
The City must receive consideration in the transaction and interest shall be payable on the loan. The loan shall not cause an undue burden on the operations and finances of the City. CORE has met all required Program qualifications to enter into a Loan Agreement with the City.
The City finds and determines that the allocation of funds to CORE pursuant to the Loan Agreement is reasonably related to a legitimate governmental purpose in that CORE's ownership and rehabilitation of the Property will provide numerous public benefits to the City. The benefits include the retention of jobs, the creation of new employment opportunities, increased ad valorem taxes, increased transient occupancy taxes and contributions to the tourism marketing district. In accordance with Government Code Section 53083, the City has prepared an Economic Development Subsidy Report in regard to the Loan Agreement. The report will remain available to the public and posted on the City's website until the end of the economic development subsidy.
261
RESOLUTION NO. __________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,
CALIFORNIA, AUTHORIZING THE EXECUTION AND DELIVERY OF A
LOAN AGREEMENT BY AND BETWEEN THE CITY OF ONTARIO AND
CORE HOTEL VENTURE LLC AND ACCEPTING THE ECONOMIC
DEVELOPMENT SUBSIDY REPORT PREPARED PURSUANT TO
GOVERNMENT CODE SECTION 53083.
WHEREAS, the City of Ontario ("City") operates a convention center and airport adjacent to the Ontario Airport Hotel and Conference Center property, located at 700 N.
Haven Avenue, Ontario, California 91764 (the “Property”); and WHEREAS, the prior owner and operator of the Property filed a voluntary petition in Bankruptcy under Chapter 11 thereof; and
WHEREAS, CORE Hotel Venture, LLC, a California limited liability company (“CORE”) has purchased the Property from the debtor at auction conducted under bankruptcy court and is planning the rehabilitation and reopening of business at the Property (“Project”); and
WHEREAS, the City wishes to provide a short-term loan (“Loan Agreement”) to CORE for the rehabilitation and reopening of the Property, and has established criteria for the City to provide such loans (“Program”) which include:
Such loan shall be reasonably related to a legitimate governmental purpose; Such loan shall have a reasonable tendency to promote public health, morals, safety or general welfare;
Expenditure must be for a public purpose;
The City must receive consideration in the transaction; Provisions of Section 53083 through 53085 of the California Government Code shall be complied with;
There shall have been an analysis of financial feasibility and community necessity to proceed prepared;
Interest shall be payable on the loan;
Such other usual, customary and reasonable requirements of the City shall be met; and
WHEREAS, based on information provided by City staff, and other such written and oral evidence, as presented to the City, the City finds and determines that the allocation of funds to CORE pursuant to the Loan Agreement is reasonably related to a 262
legitimate governmental purpose in that CORE’s ownership and rehabilitation of the Property will provide numerous public benefits to the City including:
Provide employment for the continued operations of the Property; Creation of employment opportunities for skilled workers during the renovation of the Property;
Expanded employment at stabilization of the operations of the Property; Increased Transient Occupancy Taxes and contributions to the Tourism Marketing District;
Increased ad valorem taxes on the Property;
Will not cause an undue burden on the operations and finances of the City; Enhancement of the Ontario International Airport’s profile and support of the Airport, Sports Arena and Convention Center; and
WHEREAS, CORE has met all qualifications for the Program as determined in the City’s discretion and has reviewed and is willing to enter into a Loan Agreement with the City to borrow up to Twenty Million Dollars ($20,000,000) (“Loan”); and WHEREAS, in accordance with Government Code Section 53083, the City provided certain information in written form to the public and on its website, a copy of which is attached hereto as Exhibit A and incorporated herein by this reference, and held a noticed public hearing on November 5, 2024, to consider all written and oral comments on the Economic Development Subsidy Report; and
WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario as follows:
SECTION 1. Incorporation of Recitals. The foregoing recitals are true and correct and are incorporated herein and made an operative part of this Resolution.
SECTION 2. Findings. The City Council additionally finds and determines that (a) there are identifiable public purposes fulfilled by the Project, as set forth in the Recitals, that outweigh the benefit to private persons; and (b) the findings set forth in this Resolution are based upon substantial written and oral evidence presented to the City Council.
SECTION 3. Approval of Financing Documents. The City Council hereby approves the Loan Agreement and Promissory Note, secured by a Deed of Trust, attached thereto in the respective forms on file with the City Clerk, together with such additions thereto and changes therein as Special Counsel shall deem necessary, desirable, or 263
appropriate, the execution by which the Mayor, City Manager or Executive Director of Finance shall be conclusive evidence of the approval of any such additions or changes.
The Mayor, City Manager or Executive Director of Finance are hereby authorized and directed to execute, and the City Clerk is hereby authorized and directed to attest to the final form of each of the foregoing documents and agreements for and in the name and on behalf of the City. The City Council hereby authorizes the delivery and performance of the documents and agreements.
SECTION 4. Financing Terms: The City shall advance to CORE a total amount not to exceed Twenty Million Dollars ($20,000,000). The initial disbursement of the Loan shall be in the amount not to exceed Five Million Dollars ($5,000,000). Additional disbursements of the Loan shall be in minimum amounts of One Million Dollars ($1,000,000) and maximum amounts of Five Million Dollars ($5,000,000), and each draw request shall be at least 90 days after the previous draw request. The interest rate on the first Fifteen Million Dollars ($15,000,000) shall be equal to the California Asset Management Program (“CAMP”) rate on the date of approval by the City Council. Interest on the remaining authorized amount of the Loan, up to Five Million Dollars ($5,000,000), shall be equal to the CAMP rate on the date of such draw plus 200 basis points. CORE shall make semi-annual payments; provided however CORE may defer the payment of interest on the Loan for a period of twelve (12) months from the date of the initial draw. The entire principal amount of the Loan plus accrued but unpaid and capitalized interest shall be payable in full within three (3) years from the date of the initial draw.
SECTION 5. Acceptance of Economic Development Subsidy Report. The City Council finds and determines that this Economic Development Subsidy Report is in compliance with applicable law and specifically Government Code Section 53083.
SECTION 6. CEQA. The City Council hereby finds that pursuant to the California Environmental Quality Act ("CEQA") (Pub. Res. Code, § 21000 et seq.) and the State CEQA Guidelines (Cal. Code Regs, tit. 14 § 15000 et seq.), approval of the Loan Agreement and acceptance of the Economic Development Subsidy Report is not a "project" for purposes of CEQA and therefore is not subject to CEQA review. The Loan Agreement and acceptance of the Economic Development Subsidy Report is not a project pursuant to State CEQA Guidelines section 15378(b)(4), which states that government fiscal activities which do not involve any commitment to any specific project which may result in a potentially significant environmental impact are not subject to CEQA. Further, the Loan Agreement and acceptance of the Economic Development Subsidy Report is not a project under State CEQA Guidelines section 15061(b)(3), which states that CEQA does not apply where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.
In addition, the City Council will direct staff to file a categorical exemption with the County of San Bernardino for this location upon adoption of this Resolution.
SECTION 7. Severability. If any provision of this Resolution is held invalid, the remainder of this Resolution shall not be affected by such invalidity, and the provisions of this Resolution are severable.
264
Effective Date. This Resolution shall become effective immediately upon its adoption.
The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 5th day of November, 2024. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________
SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________
BEST BEST & KRIEGER LLP
CITY ATTORNEY
265
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2024- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held November 5, 2024 by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2024- duly passed and adopted by the Ontario City Council at their regular meeting held November 5, 2024. _____________________________________
SHEILA MAUTZ, CITY CLERK
(SEAL)
266
EXHIBIT A
ECONOMIC DEVELOPMENT SUBSIDY REPORT
[Attached behind this cover page]
267
LOAN AGREEMENT
This LOAN AGREEMENT (“Agreement”) is made effective as of November ___, 2024, by and between CORE HOTEL VENTURE, LLC, a California limited liability company (“Borrower”), and the CITY OF ONTARIO, a California municipal corporation (“Lender” or “City”).
RECITALS
A. City operates a convention center and airport adjacent to the Ontario Airport Hotel and Conference Center property, located at 700 N. Haven Avenue, Ontario California, 91764 (the “Property”).
B. The prior owner and operator of the Property filed a voluntary petition in Bankruptcy under Chapter 11 thereof.
C. Borrower has purchased the Property from the debtor at auction conducted under the bankruptcy court and is planning the rehabilitation and reopening of business at the Property (the “Business”).
D. City wishes to provide a short-term loan for the rehabilitation and reopening of the Property (the “Program”), and has established criteria for the City to provide such loans which include:
1. Such loan shall be reasonably related to a legitimate purpose; and
2. Such loan shall have a reasonable tendency to promote public heath, morals, safety or general welfare.
To that end:
a) the expenditure must be for a public purpose;
b) the City must receive consideration in the transaction; c) the provisions of Section 53083 through 53085 of the California Government Code shall be complied with;
d) there shall have been prepared an analysis of financial feasibility and community necessity to proceed;
e) interest shall be payable on the loan; and
f) such other usual, customary and reasonable requirements of the City shall be met.
E. It is anticipated that Borrower’s ownership and rehabilitation of the Property will provide the following public benefits to the City:
1. Provide employment for the continued operations of the Property; 268
46700.17001\42586137.7
2 2. Creation of employment opportunities for skilled workers during the renovation of the Property;
3. Expanded employment at stabilization of the operations of the Property;
4. Increased Transient Occupancy Taxes and contributions to the Tourism Marketing District;
5. Increased ad valorem taxes on the Property; and
6. Enhancement of the Ontario International Airport’s profile and support of the Airport, Sports Arena and Convention Center.
F. Borrower has met all qualifications for the Program as determined in Lender’s reasonable discretion and has reviewed and is willing to enter this Agreement with Lender.
G. Lender desires to provide, and Borrower desires to borrow up to $20,000,000 with draws in a minimum amount of $1,000,000, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, conditions, and promises set forth herein, the parties hereto agree as follows:
1. TERMS
1.1 Terms of Loan.
(a) Loan Amount. Subject to the fulfillment of Lender’s funding contingencies as set forth in Section 1.3, Lender shall advance to Borrower a total amount not to exceed Twenty Million Dollars ($20,000,000) (the “Loan”) in draw amounts as set forth in (b) below, as evidenced by a promissory note, secured by a deed of trust, the forms of which are attached hereto as Exhibit A (the “Note”) and Exhibit B (the “Deed of Trust”) and incorporated herein by reference.
(b) D isbursement . The initial disbursement of the Loan shall be in the amount of not to exceed $5,000,000, and shall be utilized by Borrower as set forth in Section 1.2.4 hereof.
Additional disbursement of the Loan funds may be in such periodic disbursements upon a written request of Borrower to Lender and shall be in minimum amounts of $1,000,000 and maximum amounts of $5,000,000, and each draw request shall be at least 90 days after the previous draw request, and Lender shall fund such additional disbursement to Borrower within five (5) business days after receipt of such draw request. The final draw amount shall be no later than sixty (60) days before the Maturity Date, and all amounts drawn shall be due on the Maturity Date described in paragraph (d) below.
(c) P
ayment s and Rates. (i) Interest. Interest on the outstanding principal of the Loan shall be calculated on the basis of a 360-day year of twelve (12) 30-day months. Interest on the first $15,000,000, shall be initially equal to the California Asset Management Program (“CAMP”) rate on the date of approval by the City Council of the City (being ____% per 269
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3 annum) to the Maturity Date, defined below, or prepayment date. Interest on the remaining authorized amount of the Loan of up to $5,000,000 shall be equal to the CAMP rate on the date of such draw plus 200 basis points (being ____% per annum) to the Maturity Date or prepayment date. So long as no Event of Default occurs and is continuing, Borrower shall pay periodic payments of interest on the outstanding principal amount of the Note semi-annually on _______ 1 and ______ 1, commencing _______, 1, 20__ (a n “Interest Payment Date”); provided however, that Borrower may defer the payment of interest on the Loan for a period of not more than twelve (12) months from the date of the initial draw. Deferred interest shall compound annually from the date of delivery thereof to the first payment thereof increasing in equal daily amounts on the basis of a 360-day year consisting of twelve 30-day months on the basis of a constant interest rate compounded semi-annually (with straight line interpolations between Interest Payment Dates). The first payment of interest on all deferred amounts shall be on the date which is twelve (12) months from the date of the original deferral. (ii) Principal. Upon each disbursement of Loan proceeds under Section 1.1(b) hereof, Lender shall provide Borrower with a schedule of principal payments. Such schedule of principal payments shall be adjusted upon the deferral of accrued and compounded interest pursuant to 1.1(c) above and increased according to the terms thereof.
Principal shall be paid on each Interest Payment Date until the Maturity Date, at which time all amounts drawn hereunder shall become due and payable. (d) Maturity. The entire principal amount of the Loan, plus accrued but unpaid and capitalized interest thereon, shall be payable in full on ____, 2027 (the “Maturity Date”) which is three (3) years from the date of the initial draw. (e) P repayment . All or any portion of the Notes and this Loan may be prepaid on any business day prior to the Maturity Date without penalty in minimum multiples of not less than $1,000,000 together with interest accrued thereon to the date of such prepayment.
Borrower shall provide notice of such prepayment to Lender at least five (5) days prior to the payment thereof.
(f) I nterest on Event of Default. Upon an event described in Section 1.4 hereof, (an “Event of Default”) Lender may, at Lender’s option, declare the Note and the entire remaining indebtedness thereby evidenced to be immediately due and payable, regardless of the Maturity Date. Upon the occurrence of an Event of Default and subject to Section 1.7, the entire remaining indebtedness shall accrue interest at a rate of ten percent (10.00%) per annum.
1.2 C
ovenants of Borrower.
1.2.1 Borrower shall, at Borrower’s own cost and expense, execute and deliver such further documents and instruments in the possession of or readily obtainable by Borrower and take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of this Agreement, including, without limitation, cooperating in good faith and to the extent permitted by applicable law and executing any documents to which Borrower is a party to transfer any property interests, licenses, or any other items to any third party that Lender approves of to succeed to Borrower’s interest upon the occurrence of an Event of Default. 270
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4 1.2.2 The Loan and the lien on the Property secured by the Deed of Trust represents a first lien and pledge of the revenues and assets of Borrower relating to the Property.
In addition to the Deed of Trust, Lender shall file a UCC-1 Financing Statement to further secure repayment of the Loan.
1.2.3 As a condition to funding of the Loan, and during the Term, Borrower shall obtain and keep in force policies of insurance for casualty loss from fire or other damage to the Property in the amount equal to the full replacement value of the Property, together with a commercial general liability policy of insurance reasonably acceptable to Lender and protecting Borrower and Lender, as an additional insured, against claims for bodily injury, personal injury and property damage based upon or arising out of the operation of the Business. Such insurance shall be on an occurrence basis providing single limit cover age in an amount not less than $1,000,000 per occurrence with an annual aggregate of not less than $2,000,000. Borrower acknowledges and agrees that the failure to obtain and keep such insurance coverage shall be an Event of Default under the Note.
1.2.4 Borrower shall provide an officer’s certificate or certificates showing the eligible expenditures for which Borrower is making to rehabilitate/improve the Property prior to each draw request. Additionally, up to $5,000,000 may be used from the initial draw to consolidate Borrower’s acquisition position from the Chapter 11 Bankruptcy proceeding of the prior owner/operator. Eligible expenditures are r eal estate acquisition for commercial, retail and industrial land and buildings, site demolition, asbestos removal, site preparation and site improvements, including grading, foundation work, and utility installation, new construction, including building c onstruction, trenching and site work for new construction, creating parking areas, installing hardscape, installing landscaping, lighting and signage, “g reen” energy efficient improvements, machinery/tools used for industrial manufacturing subject to City approval, external and internal improvements to existing buildings, substantial rehabilitation of existing buildings, including roof replacement, fire construction upgrades, electrical upgrades, fixtures, furniture and equipment, commercial kitchen rehabilitation and ADA compliance , deferred maintenance items set forth in Exhibit C (the “List of Pre-approved Deferred Maintenance Items”) attached hereto and made a part of this Loan Agreement, or any other expenditures related to or in connection with the foregoing.
1.2.5 Borrower agrees that no portion of the Loan shall be used for the following ineligible expenditures: improvements commenced prior the City’s approval of the Loan, the cost of any and all City of Ontario permits and fees, overhead costs by the Borrower, debt repayment and payment of personal obligations (such as credit cards ), working capital, inventory and supplies, r eal estate mortgage or lease payments , s elf-performed work , f inancial assistance to automobile dealerships on land not previously developed for urban use , development on a parcel of land of five or more acres which has not previously been developed for urban use that will generate sales or use tax, unless the principal permitted use is office, hot el, manufacturing or industrial, developments or businesses used for gambling or gaming, a big box retailer or vehicle dealer, or a business that sells or leases land to big box retailers or vehicle dealers, relocating from another community within the same market area (“Big box retailer” means a store of greater than 75,000 square feet of gross buildable area that will generate sales or use tax pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law (Part 1.5 (commencing with Section 7200) 271
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5 of Division 2 of the Revenue and Taxation Code)), and other items as de emed inappropriate by the City.
1.2.6 Borrower shall provide such periodic expenditure reports as the City may reasonably request but in no event more frequently than semi-annually (except as may be required in connection with any draw request), which detail the sources and uses of funds to rehabilitate the Property.
1.2.7 Borrower shall comply in all material respects with all applicable building code, land use and planning laws, design guidelines and rules and regulations of the City.
Additionally, Borrower will carry out construction of the Project in conformity in all material respects with all local, state and federal laws, rules and regulations, including but not limited to all applicable California labor standards. Borrower assumes any and all responsibility and shall be solely responsible for determining whether or not laborers employed relative to the eligible project must be paid the prevailing per diem wage rate as determined by the state, pursuant to Labor Code Sections 1720, et seq.
1.2.8 The Property shall be maintained in good repair and in a neat and orderly condition in accordance with generally accepted industry standards, subject to normal wear and tear and damage by casualty. Any damage to the Property is to be promptly repaired by Borrower so that the Property remains in good condition. This includes the removal of graffiti, as defined in California Government Code Section 38772, that has been applied to any exterior surface of a structure or improvement on the Property that is visible from any public right-of-way adjacent or contiguous to the Property, shall be removed by Borrower by either painting over the evidence of such vandalism with a paint that has been color -matched to the surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water, as appropriate. If any such graffiti is no t removed within ten (10) business days following the time of the discovery of the graffiti, the City shall have the right to enter the Property and remove the graffiti, without notice.
1.2.9 The City or its designated representative may inspect the Property on an annual basis or, during the continuance of an Event of Default, more frequently as reasonably necessary to ensure compliance with the Loan. If the Property is found to be inadequately maintained, Borrower shall exercise commercially reasonable efforts to commence repair of the Property and diligently proceed to complete the repair of the Property within thirty (30) days of receipt of written notice from the City.
1.3 Funding Contingencies. Lender’s obligation to fund the Loan shall be contingent upon the fulfillment of the following contingencies, all to Lender’s sole and absolute satisfaction:
(a) Borrower shall have delivered to Lender an original executed copy of the Note and Deed of Trust; and
(b) Borrower shall have delivered to Lender a copy of the vesting deed or other documents demonstrating ownership of the Property on which Borrower operates its Business; 272
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6 (c) Borrower shall deliver an appraisal of the Property which illustrates that the loan to value ratio of the Note to the Property shall not be in excess of seventy-five percent (75%); and
(d) Borrower shall have delivered to Lender evidence of insurance coverage, as described under Section 1.2.2 hereof.
1.4 Default.
1.4.1 Events of Default. The following shall be deemed an Event of Default:
(a) Borrower fails to pay any amounts due under this Loan Agreement, the Note and the Deed of Trust;
(b) Borrower materially breaches any of the covenants of the Note, the Deed of Trust, or this Loan Agreement, including the breach of any covenant contained in Section 1.2 of this Loan Agreement; and such breach continues uncured for more than thirty (30) days after Borrower’s receipt of written notice thereof from Lender, provided, however, if the nature of such material breach is such that it cannot be reasonably cured within such 30-day period, then Borrower shall have up to one hundred twenty (120) days to cure such breach so long as Borrower commenced such cure within the initial 30-day period and continues to diligently pursue such cure to completion; or
(c) Borrower (i) becomes insolvent or unable to pay Borrower’s debts generally as they mature, (ii) makes a general assignment for the benefit of creditors, (iii) admits in writing Borrower’s inability to pay Borrower’s debts generally as they mature, (iv) files or has filed against it a petition in bankruptcy or a petition or answer seeking a reorganization, arrangement with creditors or other similar relief under the Federal bankruptcy laws or under any other applicable law of the United States of America or any state thereof and such petition is not dismissed within ninety (90) days after the date of filing, or (v) consents to the appointment of a trustee or receiver for it or for a substantial part of Borrower’s property; or (d) Any order, judgment or decree is entered appointing, without Borrower’s consent, a trustee or receiver for it or for a substantial part of Borrower’s property that is not removed within ninety (90) days from such entry; or
(e) Borrower voluntarily or involuntarily transfers, in any way, the Property or any portion thereof without the Lender’s prior written consent.
1.4.2 Remedies. Upon the occurrence of an Event of Default, Lender may, at Lender’s option, exercise one or more of the following remedies, in addition to any other remedies provided herein, in the Note, or by law:
(a) Declare the Note and the entire remaining indebtedness thereby evidenced to be immediately due and payable, regardless of the Maturity Date; 273
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7 (b) Exercise any collection procedures allowed by State law or by the City of Ontario Municipal Code; and/or
(c) Pursue any legal remedy available to secure payment of any and all monies owed by Borrower.
1.4.3 The remedies provided by this Section 1.4.2 are cumulative and in addition to and independent of any other remedies available to Lender by law. Any and all costs of collection shall be added to the balance owed, including but not limited to collection agency charges and reasonable attorneys’ fees.
1.5 Compliance with Laws; Prevailing Wage Requirement.
1.5.1 Borrower shall obtain and comply with all necessary land use entitlements and conditions therein for the operation of the Business.
1.5.2 Borrower shall cause any work performed in connection with any improvements to the Property made by Borrower in connection with the opening or operating of the Business completed after the effective date of this Agreement (“Improvements”) to be performed in compliance in all material respects with (i) all applicable federal, state and local laws, ordinances, rules and regulations; (ii) applicable state prevailing wage requirements pursuant to Labor Code Sections 1720 et seq. and 1770 et seq., and the regulations pursuant thereto, as further set forth below (“Prevailing Wage Laws”); and (iii) all applicable directions, rules and regulations of any fire marshal, health officer, building inspector, or other officer of any governmental agency with jurisdiction over the Business.
1.5.3 Borrower has been alerted to the requirements of Prevailing Wage Laws. If applicable, Borrower shall pay (and shall cause any contractor and subcontractors to pay) prevailing wages and shall comply (and shall cause any contractor and subcontractors to comply) with all applicable Prevailing Wage Laws in connection with the construction of any Improvements, including the obligation to keep and retain such records as are necessary to determine if prevailing wages have been paid. Borrower shall provide copies of such records to Lender upon Lender’s request therefor.
1.5.4 Borrower shall operate the Business, at all times, in compliance in all material respects with all applicable federal, state and local laws, ordinances, rules and regulations.
1.6 Indemnification. To the extent permitted by applicable law, Borrower agrees to defend, indemnify and hold Lender and its officials, officers, employees and agents, free and harmless from and against any and all claims, liabilities, penalties, damages, judgments, costs, expenses, fees and interest arising from or related to any act or omission of Borrower in performing its obligations hereunder and under the Prevailing Wage Laws, or in operating its Business.
Borrower assumes all risk of liability arising fr om any decision not to comply with Prevailing Wage Laws.
1.7 A
ssignment . Borrower may assign all of its rights, interests, and obligations in and under this Agreement and the Note after obtaining the prior written approval of Lender. Any 274
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8 assignment of this Agreement or the Note without Lender’s prior written approval shall be null and void. Upon assignment of this Agreement and the Note, any interest accruing on the remaining indebtedness as a result of an Event of Default shall cease to accrue.
1.8 Severability. The unenforceability or invalidity of any provision or provisions of this Agreement as to any persons or circumstances shall not render that provision or those provisions unenforceable or invalid as to any other persons or circumstances, and all provisions hereof, in all other respects, shall remain valid and enforceable.
1.9 B inding Effect; Inurement. This Agreement shall bind Borrower and its successors and assigns and the benefits hereof shall inure to Lender and Lender’s successors and assigns.
1.10 G overning Law; Jurisdiction. This Agreement shall be governed by and construed exclusively in accordance with the internal substantive laws of the State of California. The parties hereto consent to the exclusive jurisdiction of the state courts sitting in the County of San Bernardino, California, for any action or proceeding arising under this Agreement or the Loan.
1.11 A
ttorneys’ Fees . Borrower agrees to pay the following costs, expenses, and attorneys’ fees paid or incurred by Lender or adjudged by a Court: (i) reasonable costs of collection, costs, expenses, and attorneys’ fees paid or incurred in connection with the collection or enforcement of the Loan, whether or not suit is filed; and (ii) costs of such sum as the Court may adjudge as attorneys’ fees in an action to enforce payment of this Agreement or any part of it. In the event either party brings an action under this Agreement, the prevailing party shall be entitled to its reasonable attorney’s fees and costs.
[Signatures on Following Page]
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9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
BORROWER:
CORE HOTEL VENTURE, LLC, a California
limited liability company
By:
Robert Diaz
Manager
LENDER:
CITY OF ONTARIO, a California municipal
corporation
By:
City Manager
ATTEST:
City Clerk
APPROVED AS TO LEGAL FORM:
BEST BEST & KRIEGER LLP
City Attorney
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A-1
EXHIBIT A
Promissory Note
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B-1
EXHIBIT B
Deed of Trust
278
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C-1
EXHIBIT C
List of Pre-Approved Deferred Maintenance Items
Description
1. Fire Pump
2. Boiler Replacement at Cabana Wing
3. Elevators (qty 3)
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LOAN AGREEMENT
PROMISSORY NOTE SECURED BY A DEED OF TRUST
Ontario, California
Principal Amount:__________________________ Date of Loan:________________ ______________ FOR VALUE RECEIVED, the undersigned CORE HOTEL VENTURE, LLC, a California limited liability company (“Maker”) promises to pay to the City of Ontario, a California municipal corporation (“City ”) at 303 East “B” Street, Ontario, California 91764, or at such place as the City may, from time to time, designate b y written notice to the Maker, the principal sum of [TWENTY MILLION DOLLARS ($20,000,000)] that is due and payable upon the Maturity Date (defined below) or upon an Event of Default (defined below).
1. P
urpose of Loan. This Promissory Note is made and given pursuant to the Loan Agreement by and between the City of Ontario and CORE HOTEL VENTURE, LLC, a California limited liability company dated ___________, 2024, which is incorporated herein by reference (“Loan Agreement”). All initially capitalized terms used but not defined herein shall have the meanings given to them in the Loan Agreement.
2. Secured Obligation. This Promissory Note is made to evidence the Maker’s obligation to repay a loan made by City to Maker for economic assistance under the Loan Agreement for the purpose of facilitating Maker’s commercial development of the property (“Project”) located at 700 N. Haven Avenue, Ontario California, 91764, City of Ontario, County of San Bernardino, State of California (Ass essor Parcel No. 0210-211-33-0-000) (the “Property”), which is encumbered by that deed of trust dated [***INSERT DATE FROM DEED OF TRUST***] , with Maker as Trustor, [***INSERT TITLE COMPANY***] as Trustee and the City as Beneficiary (the “Deed of Trust”) to secure the principal amount of this Promissory Note upon an Event of Default.
3. Term of Loan, Payment of Principal and Interest and Right of Agreement, Prepayment.
3.1. Maturity Date. Unless due at an earlier time by virtue of the acceleration of the balance hereof in accordance with Section 6 hereof, the entire principal amount of the Loan, plus accrued but unpaid and capitalized interest thereon, shall be payable in full on _________, 2027 (“ the Maturity Date”) which is three years from the date of the initial draw.
3.2. (a) Interest Prior to Event of Default or Maturity Date . So long as no Event of Default occurs prior to the Maturity Date, Maker shall pay periodic payments of interest on the original principal amount of this Promissory Note semi-annually on each _____ 1 and ______1, commencing ____, 1, 20__, prior to the Maturity Date, provided however, that Maker may defer the payment of interest on the Note for a period of not more than twelve (12) months from the date of the initial draw. Deferred interest shall compound annually from the date of delivery thereof to the first payment thereof increasing in equal daily amounts on the basis of a 360- day year consisting of twelve 30- day months on the basis of a constant interest rate compounded semi-annually (with straight line interpolations between Interest Payment Dates).
The first payment of interest on all deferred amounts shall be on the date which is twelve (12) months from the date of the original deferral..
(b
) Pr
incipal. Upon each disbursement of proceeds under Section 1.1(b) of the Loa n Agreement, City shall provide Maker with a schedule of principal payments. Such schedule of principal payments shall be adjusted upon the deferral of accrued and compounded interest pursuant to 1.1(c) of the Loan Agreement and increased according to the terms thereof. Principal shall be paid on each Interest 280
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Payment Date until the Maturity Date, at which time all amounts drawn hereunder shall become due and payable.
3.3. Prepayment. All or any portion of this Promissory Note and the Loan Agreement may be prepaid on any business day prior to the Maturity Date without penalty in minimum multiples of not less than $1,000,000 together with interest accrued thereon to the date of such prepayment. Maker shall provide notice of such prepayment to City at least five (5) days’ prior to the payment thereof.
4. Repayment of Note . Principal and interest shall be payable in lawful money of the United States of America.
5. Payment of Interest. Upon an Event of Default, Maker shall be obligated to pay interest, computed using the exact interest method, on the principal amount of this Promissory Note that has accrued from the date hereunder until the Event of Default.
5.1. Amount of Interest . Interest on the first $15,000,000, shall be initially equal to the California Asset Management Program (“CAMP”) rate on the date of approval by the City Council of the City (being ____% per annum) to the Maturity Date, defined above , or prepayment date. Interest on the remaining authorized amount of this Promissory Note of up to $5,000,000 shall be equal to the CAMP rate on the date of such draw plus 200 basis points (being ____% per annum) to the Maturity Date or prepayment date. Upon an event described in Section 1.4 of the Loan Agreement (an “Event of Default”), City may, at City’s option, declare the Note and the entire remaining indebtedness thereby evidenced to be immediately due and payable, regardless of the Maturity Date.
5.2. Calculation of Interest. Interest on the outstanding principal of this Promissory Note shall be calculated on the basis of a 360-day year of twelve (12) 30-day months.
6. Acceleration Upon Event of Default.
6.1. The entire unpaid principal balance and accrued interest, if any, of this Promissory Note together with any charges set forth herein, shall at the City ’s option be immediately due and payable prior to the Maturity Date upon any of the following events of default (“Event of Default”):
6.1.1. Maker fails to pay any amounts due under this Promissory Note;
6.1.2. Maker materially breaches any of the covenants of this Promissory Note, the Deed of Trust, or the Loan Agreement, including the breach of any covenant contained in Section 1.2 of the Loan Agreement; and such breach continues uncured for more than thirty (30) days after Maker’s receipt of written notice thereof from City, provided, however, if the nature of such material breach is such that it cannot be reasonably cured within such 30-day period, then Maker shall have up to one hundred twenty (120) days to cure such breach so long as Maker commenced such cure within the initial 30-day period and continues to diligently pursue such cure to completion; or
6.1.3. Maker (i) becomes insolvent or unable to pay Maker’s debts generally as they mature, (ii) makes a general assignment for the benefit of creditors, (iii) admits in writing Maker’s inability to pay Maker’s debts generally as they mature, (iv) files or has filed against it a petition in bankruptcy or a petition or answer seeking a reorganization, arrangement with creditors or other similar relief under the Federal bankruptcy laws or under any other applicable law of the United States of America or any state thereof and such petition is not dismissed within ninety (90) days after the date of filing, or (v) consents to the appointment of a trustee or receiver for it or for a substantial part of Maker’s property; or 281
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6.1.4. Any order, judgment or decree is entered appointing, without Maker’s consent, a trustee or receiver for it or for a substantial part of Maker’s property that is not removed within ninety (90) days from such entry; or
6.1.5. Maker voluntarily or involuntarily transfers, in any way, the Property or any portion thereof without the City’s prior written consent.
6.2. Notwithstanding the above, in the event of an actual or deemed entry of an order for relief with respect to Maker under the Federal Bankruptcy Code, this Promissory Note and all interest and other amounts due hereon shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by Maker. The City may exercise City’s option to accelerate upon the occurrence of any Event of Default, regardless of any prior forbearance.
7. Default Rate. Upon the occurrence of an Event of Default and subject to Section 1.7 of the Loa n
Agreement, the entire remaining indebtedness shall accrue interest at a rate of 10.00% per annum (the “Default Rate”). The parties hereto agree that the Default Rate represents a reasonable sum considering all of the circumstances existing on the date of this Promissory Note and represents a fair and reasonable estimate of the costs and damages that City will incur by reason of the late payment or Event of Defau lt .
T
he parties hereto further agree that proof of actual damages would be costly or inconvenient. Acceptance of the Default Rate shall not constitute a waiver of the default with respect to the overdue amount, and shall not prevent City from exercising any of the other rights and remedies available to City. The foregoing shall not be construed as obligating the City to accept any payment after its due date.
8. Removal of Liens. City shall only remove, or cause to be removed, the Loan Agreement and the Deed of Trust as liens against the Property after Maker has fully complied with the terms of this Promissory Note, the Loan Agreement and the Deed of Trust.
9. Notice of Default. Maker shall provide notice to City of any notice of default sent by any lender with a security interest in the Property within three (3) days of the date of Maker’s receipt of such notice.
10. Costs Paid by Owner. Maker agrees to pay the following costs, expenses and attorneys’ fees paid or incurred by the City, or as adjudged by a court of competent jurisdiction: (a) reasonable costs of collection, costs and expenses and attorneys’ fees paid or incurred in connection with the collection or enforcement of this Promissory Note, whether or not suit is filed; and (b) costs of suit in such sum as the court may adjudge reasonable as attorneys’ fees in any action to enforce payment of this instrument.
11. Waiver. Maker hereby waives diligence, presentment, protest and demand, notice of protest, dishonor and nonpayment of this instrument, and expressly agrees that, without in any way affecting the liability of Maker hereunder, the City may extend any maturity date or the time for payment of any installment due hereunder, accept additional security, release any party liable hereunder or release any security now or hereafter securing this Promissory Note. Maker hereby waives, to the fullest extent permitted b y law, the right to plead any and all statutes of limitations as a defense to any demand on this instrument or any deed of trust, security agreement, guarantee or other agreement now or hereafter securing this Promissory Note.
12. Disclaimer of Personal Liability . Despite anything to the contrary in the Promissory Note or in the Deed of Trust securing this Promissory Note, but without in any way affecting the validity of this Promissory Note or of the lien of the Deed of Trust, in the event of any Event of Default under this Promissory Note or the Deed of Trust, City 's sole recourse for any and all such defaults shall be by judicial foreclosure or by exercise of the trustee's power of sale, and the undersigned Maker(s) shall not b e pe
rsonally liable for the payment of this Promissory Note or for any other default under the Deed of Trust 282
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or for the payment of any deficiency established after judicial foreclosure or after a trustee's sale under the Deed of Trust. Despite the foregoing, Maker(s) shall be personally liable and shall indemnify, defend, protect and hold the City harmless from and against any and all loss, damage, liability, action, cause of action, cost or expense, including, without limitation, reasonable attorneys' fees and expenses incurred by the City, arising as a result of any (i) fraud or material misrepresentation by the Maker under or in connection with the Agreement; (ii) intentional bad faith waste of the real property encumbered by the Deed of Trust which secures this Promissory Note; and (iii) losses resulting from Maker’s failure to maintain insurance as required under the provisions of the Deed of Trust securing this Promissory Note. Maker’s obligation to indemnify the City as aforesaid shall be a recourse obligation of the Maker, and in the event of any breach of such obligations, the City shall have the right to proceed directly against the Maker to recover any and all losses, damages, liability, costs and expenses (including without limitation, reasonable attorneys' fees and expenses) and may bring any action and institute any proceeding to obtain a deficiency judgment in or following foreclosure for any and all such losses, damages, liabilities, costs and expenses resulting from such breach.
13. Severability. If any provision of this Promissory Note is determined by a court of competent jurisdiction to be void or unenforceable, such determination shall not affect any other provision of this instrument, and all other provisions hereof shall remain valid and in full force and effect.
14. Non-Waiver. No delay in demanding or failure to demand performance hereunder shall constitut e a
waiver by the City of its right to subsequently demand such performance or to exercise any remedies for any default hereunder. Further, in order to be effective, any waiver of any of the City’s rights and remedies hereunder shall be expressed in a writing signed by a duly appointed representative of the City. Further, waiver by the City of any right hereunder shall not constitute a waiver of any other right, including, but not limited to, the right to exercise any and all remedies for a different or subsequent event of default hereunder.
15. Successors and Assigns. This Promissory Note shall bind Maker and Maker’s successors and assigns and the benefit hereof shall inure to City and City’s successors and assigns.
16. Intentionally Omitted.
17. Other Encumbrances.
17.1. Maker shall not further encumber, mortgage, or subject the Property or any interest therein to a deed of trust without the prior written consent of the City.
17.2. Unless the City shall expressly agree otherwise in writing, any subsequent mortgage and deed of trust documents affecting the Property shall provide that in the event of any default or breach by the Maker under any mortgage or deed of trust other than the Deed of Trust entitling any party thereunder to accelerate the indebtedness secured thereby and foreclose upon the Property the City shall have the right (but not the obligation) to (a) cure the default prior to the completion of any foreclosure and reinst ate the mortgage or deed of trust, or (b) pay the total unpaid indebtedness secured by such mortgage or deed of trust, in which event, such mortgage or deed of trust shall be released. Amounts expended by the City under this paragraph shall be reimbursed by Maker upon demand of the Maker therefore, and, in any event, shall bear interest at the Default Rate from the date advanced by the City until paid in full. All such amounts shall be added to the principal of this Promissory Note. The approval by Maker of any mortgage or deed of trust documents, and the placing of a security interest therefore on the Property or any portion thereof, not containing the provisions required by this section shall constitute a default under this Promissory Note. 283
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