Amendment to Contract Documents
Enrollment Number
7-36LNNZWOY2
This amendment (“Amendment”) is entered into between the parties identified on the attached program signature form. It amends the Enrollment or Agreement identified above. All terms used but not defined in this Amendment will have the same meanings provided in that Enrollment or Agreement.
Enterprise Enrollment
Invoice for Quoted Price
Amendment ID M97
The price quoted to Enrolled Affiliate is a fixed price based on an estimated order submission date.
Microsoft will invoice Enrolled Affiliate based on this fixed price quote. If this order is submitted later than the estimated order submission date, Enrolled Affiliate will be charged for net new Monthly Subscriptions (including Online Services) for the period during which these services were not provided.
For Indirect models, Pricing to Enrolled Affiliate is agreed between Enrolled Affiliate and Enroll ed Affiliate’s Reseller.
SKU Number SKU Description Existing Quantity Incremental quantities
AAD-34704 M365 G3 Unified FUSL
GCC Sub Per User 950 0
NYH-00001 Teams AC with Dial Out
US/CA GCC Sub Add-on 0 950
Except for changes made by this Amendment, the Enrollment or Agreement identified above remains unchanged and in full force and effect. If there is any conflict between any provision in this Amendment and any provision in the Enrollment or Agreement identified above, this Amendment shall control.
Microsoft Internal Use Only:
(M97)EnrAmend(Ind)(InvoiceforQuotedPrice)(
WW)(ENG)(Jan2023)v2(IU).docx
M97 B
This Amendment must be attached to a signature form to be valid. 183
Enterprise Enrollment Product Selection Form Microsoft | Volume Licensing Proposal ID Enrollment Number
2642836.003
Language: English (United States)
Enrolled Affiliate’s Enterprise Products and Enterprise Online Services summary for the initial order:
Profile Qualified Devices Qualified Users Device / User Ratio CAL Licensing Model Enterprise 950 950 1.0 User Licenses
Products Enterprise Quantity
Microsoft 365 Enterprise
M365 G3 GCC USL Unified 950
Enrolled Affiliate’s Product Quantities:
Price Group 1 2 3 4
Enterprise Products Office Professional Plus + M365 Apps for Enterprise + Office 365 (Plans E3 and E5)
+ Microsoft 365 Enterprise
Client Access License +
Office 365 (Plans E1, E3
and E5) + Microsoft
365 Enterprise
Client Access License +
Windows Intune + EMS
USL + Microsoft 365
Enterprise
Win E3 + Win E5 + Win
VDA + Microsoft 365
Enterprise
Quantity 950 950 950 950
Enrolled Affiliate’s Price Level:
Product Offering / Pool Price Level
Enterprise Products and Enterprise Online Services USLs: Unless otherwise indicated in associated contract documents, Price level set using the highest quantity from Groups 1 through 4. D
Additional Product Application Pool: Unless otherwise indicated in associated contract documents, Price level set using quantity from Group 1.
D
Additional Product Server Pool: Unless otherwise indicated in associated contract documents, Price level set using the highest quantity from Group 2 or 3. D
Additional Product Systems Pool: Unless otherwise indicated in associated contract documents, Price level set using quantity from Group 4.
D
Notes
Unless otherwise indicated in the associated contract documents, the price level for each Product offering / pool is set as described above, based upon the quantity to price level mapping below:
Quantity of Licenses and Software Assurance Price Level EA-EASProdSelForm(WW)(ENG)
MS Quote
184
Enterprise Enrollment Product Selection Form Microsoft | Volume Licensing 2,399 and below A
2,400 to 5,999 B
6,000 to 14,999 C
15,000 and above D
Note 1: Enterprise Online Services may not be available in all locations. Please see the Product List for a list of locations where these may be purchased.
Note 2: If Enrolled Affiliate does not order an Enterprise Product or Enterprise Online Service associated with an applicable Product pool, the price level for Additional Products in the same pool will be price level “A” throughout the term of the Enrollment. Refer to the Qualifying Government Entity Addendum pricing provision for more details on price leveling.
EA-EASProdSelForm(WW)(ENG)
MS Quote
185
1 of 3 3/6/2024
City of Orange
Quotation: 0224-City of Orange_Orange_Renew al-MSEA-SI Insight Team Date: February 8, 2024 Chapman, Catherine
Enrollment: 72612658 503.320.0860
Contract: PSA-0001526/RIVCO-2020-RFQ-0000048
http://www.ins ight.com/azureterms
Customer understands and acknowledges that it is obtaining the software Products directly from Microsoft Corporation and that Insight provides no warranty to Customer covering the Products purchased hereunder. All warranties relating to such Products are granted solely by Microsoft Corporation.
Enrollment#: 72612658
Confidential. Cover Thank you for the opportunity to quote. 186 3/6/2024 Page 2 of 3
City of Orange
Quotation: 0224-City of Orange_Orange_Renew al-MSEA-SI
Date: February 8, 2024
Enrollment: 72612658
Contract: PSA-0001526/RIVCO-2020-RFQ-0000048
Part Number Item Name Level Purchase Period Pool Product Type Quantity Unit Price Extended Price Additional Products
9GS-00495 CIS Suite Datacenter Core ALng LSA 2L D Added at Signing Servers License/Software Assurance Pack 80 386.03$ 30,882.40$ 9GS-00135 CIS Suite Datacenter Core ALng SA 2L D Added at Signing Servers Software Assurance 64 165.39$ 10,584.96$ 9GA-00313 CIS Suite Standard Core ALng SA 2L D Added at Signing Servers Software Assurance 64 35.42$ 2,266.88$ 076-01912 Project Standard ALng SA D Added at Signing Applications Software Assurance 10 127.55$ 1,275.50$ 7NQ-00292 SQL Server Standard Core ALng SA 2L D Added at Signing Servers Software Assurance 24 641.74$ 15,401.76$ D87-01159 Visio Professional ALng SA D Added at Signing Applications Software Assurance 5 109.41$ 547.05$ QEK-00003 Visual Studio Pro with GitHub ALng SA D Added at Signing Applications Software Assurance 1 305.64$ 305.64$ Annual Total: 61, 264. 19$
Three Year Total: 183, 792. 57$
Conf idential. EA At Signing Thank y ou f or the opportunity to quote. 187
3/6/2024 Page 3 of 3
City of Orange
Quotation: 0224-City of Orange_Orange_Renewal-MSEA-SI Subscription Start Date: 3/1/2024 Date: February 8, 2024 Subscription End Date: 2/29/2027 Enrollment: 72612658
Contract: PSA-0001526/RIVCO-2020-RFQ-0000048
Upf ront: 12 Months 12
Part Number Item Name Level Purchase Period Pool Product Type Quantit y Term Price Extended Price
Enterprise Products
AAD-34704 M365 G3 Unified FUSL GCC Sub Per User D Non-Specific Servers Monthly Subscriptions-VolumeLicense 950 $383.01 363,859.50$ Additional Products
J5U-00001 Azure prepayment - US Gov D Non-Specific Servers Monthly Subscriptions-VolumeLicense 10 $1,209.00 12,090.00$ J5U-00001 Azure prepayment - US Gov D Non-Specific Servers Monthly Subscriptions-VolumeLicense 10 $1,209.00 12,090.00$ 12 Month Total: 388,039.50$
36 Month Total: 1,164,118.50$
Confidential. EA Monthly Subscriptions Thank you for the opportunity to quote. 188
Agenda Item
City Council
Item #: 3.5. 3/12/2024 File #: 24-0133
TO: Honorable Mayor and Members of the City Council
FROM: Tom Kisela, City Manager
1. SUBJECT
Agreement with NaviRetail, Inc. for retail development services.
2. SUMMARY
Agreement with NaviRetail, Inc. for assistance with business attraction efforts.
3. RECOMMENDED ACTION
1. Approve the agreement with NaviRetail, Inc. in the amount of $50,000 for retail development services; and authorize the Mayor and City Clerk to execute on behalf of the City.
2. Authorize the following budget transfer:
From: 952.9810.56020.20247 NW & SW Merged 2003 Taxable Bonds SAORA Capital $50,000
To: 952.9810.51670.00000 NW & SW Merged 2003 Taxable Bonds Other Professional and Consulting Services $50,000
4. FISCAL IMPACT
The estimated expenditure for this agreement is $50,000 and will be funded through:
952.9810.51670.00000 NW & SW Merged 2003 Taxable Bonds Other Professional and Consulting Services $50,000
5. STRATEGIC PLAN GOALS
Goal 2: Be a fiscally healthy community
b: Analyze future fiscal needs and potential revenue opportunities.
6. DISCUSSION AND BACKGROUND
Business attraction is an important component of the City’s Economic Development Strategy.
Business attraction efforts focus on building relationships with property owners, brokers, leasing agents, retailers, and developers to fill vacant commercial properties with new businesses that meet community needs. Efforts also include attending economic development conferences and conventions, marketing Orange as an attractive place to do business, and staying abreast of changes in the retail sector.
The proposed agreement with NaviRetail, Inc. (NaviRetail) would augment limited staff resources with professional services from a firm that is dedicated to retail development and business attraction City of Orange Printed on 3/7/2024Page 1 of 2
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Item #: 3.5. 3/12/2024 File #: 24-0133
efforts. The agreement would be for one year and include the following services:
· Data gathering and collection
· Market analysis and mobility assessment
· Summary of market findings
· Community forum and recruitment workshop
· Retailer matching and targeting strategies
· Site matching and inventory assessment
· Business recruitment and retention efforts
City staff would work with NaviRetail to identify key vacant properties in the City and then implement a plan to attract targeted retailers to fill the vacant properties with desirable businesses.
City staff met with multiple retail development firms and are recommending NaviRetail based on their experience in working with municipalities as well as their strong relationships with retailers.
7. ATTACHMENT
· Agreement with NaviRetail, Inc.
City of Orange Printed on 3/7/2024Page 2 of 2
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Agenda Item
City Council
Item #: 3.5. 3/12/2024 File #: 24-0133
TO: Honorable Mayor and Members of the City Council
FROM: Tom Kisela, City Manager
1. SUBJECT
Agreement with NaviRetail, Inc. for retail development services.
2. SUMMARY
Agreement with NaviRetail, Inc. for assistance with business attraction efforts.
3. RECOMMENDED ACTION
1. Approve the agreement with NaviRetail, Inc. in the amount of $50,000 for retail development services; and authorize the Mayor and City Clerk to execute on behalf of the City.
2. Authorize the following budget transfer:
From: 952.9810.56020.20247 NW & SW Merged 2003 Taxable Bonds SAORA Capital $50,000
To: 952.9810.51670.00000 NW & SW Merged 2003 Taxable Bonds Other Professional and Consulting Services $50,000
4. FISCAL IMPACT
The estimated expenditure for this agreement is $50,000 and will be funded through:
952.9810.51670.00000 NW & SW Merged 2003 Taxable Bonds Other Professional and Consulting Services $50,000
5. STRATEGIC PLAN GOALS
Goal 2: Be a fiscally healthy community
b: Analyze future fiscal needs and potential revenue opportunities.
6. DISCUSSION AND BACKGROUND
Business attraction is an important component of the City’s Economic Development Strategy.
Business attraction efforts focus on building relationships with property owners, brokers, leasing agents, retailers, and developers to fill vacant commercial properties with new businesses that meet community needs. Efforts also include attending economic development conferences and conventions, marketing Orange as an attractive place to do business, and staying abreast of changes in the retail sector.
The proposed agreement with NaviRetail, Inc. (NaviRetail) would augment limited staff resources with professional services from a firm that is dedicated to retail development and business attraction City of Orange Printed on 3/7/2024Page 1 of 2
powered by Legistar™
191
Item #: 3.5. 3/12/2024 File #: 24-0133
efforts. The agreement would be for one year and include the following services:
· Data gathering and collection
· Market analysis and mobility assessment
· Summary of market findings
· Community forum and recruitment workshop
· Retailer matching and targeting strategies
· Site matching and inventory assessment
· Business recruitment and retention efforts
City staff would work with NaviRetail to identify key vacant properties in the City and then implement a plan to attract targeted retailers to fill the vacant properties with desirable businesses.
City staff met with multiple retail development firms and are recommending NaviRetail based on their experience in working with municipalities as well as their strong relationships with retailers.
7. ATTACHMENT
· Agreement with NaviRetail, Inc.
City of Orange Printed on 3/7/2024Page 2 of 2
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PROFESSIONAL SERVICES AGREEMENT
[Retail Development Services]
THIS PROFESSIONAL SERVICES AGREEMENT (the “Agreement”) is made at Orange, California, on thi s _____ day of _____ _____________, 2024 (the “Effective Date”) by and between the CITY OF ORANGE, a municipal corporation (“City”), and NAVIRETAIL INC., a Mississippi corporation (“Contractor”), who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Contractor shall provide to the reasonable satisfaction of City the services set forth in Exhibit “A,” which is attached hereto and incorporated herein by reference. As a material inducement to City to enter into this Agreement, Contractor represents and warrants that it has thoroughly investigated and considered the scope of services and fully understands the difficulties and restrictions in performing the work. The services which are th e subject of this Agreement are not in the usual course of City’s business and City relies on Contractor’s representation that it is independently engaged in the busi ness of providing such services and is experienced in performing the work.
Contractor shall perform all services in a manner reasonably satisfactory to City and in a manner in conformance with the standards of quality normally observed by an entity provid ing such services to a municipal agency. All services provided shall conform to all federal, state and local laws, rules and regulations and to the best professional standards and practices. The terms and conditions set forth in this Agreement shall control over any terms and conditions in Exhibit "A" to the contrary.
2. Compensation and Fees.
a. Contractor's total compensation for all services performed under this Agreement, shall not exceed FIFTY THOUSAND DOLLARS and 00/100 ($50,000.00) without the prior written authorization of City.
b. The above compensation shall include all costs, including, but not limited to, all clerical, administrative, overhead, insurance, reproduction, telephone, travel, auto rental, subsistence and all related expenses.
3. Payment.
a. As scheduled services are completed, Contractor shall submit to City an invoice for the services completed, authorized expenses and authorized extra work actually performed or incurred.
b. All such invoices shall state the basis for the amount invoiced, including services completed, the number of hours spent and any extra work performed.
c. Payment shall constitute payment in full for all services, authorized costs and authorized extra work covered by that invoice.
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2 4. Change Orders. No payment for extra services caused by a change in the scope or complexity of work, or for any other reason, shall be made unless and until such extra services and a price therefor have been previously authorized in writing and approved by City as an amendment to this Agreement. City’s Project Manager is authorized to approve a reduction in the services to be performed and compensation therefor. All amendments shall set forth the changes of work, extension of time, and/or adjustment of the compensation to be paid by City to Contractor and shall be signed by the City’s Project Manager, City Manager or City Council, as applicable.
5. Licenses. Contractor represents that it and any subcontractors it may engage, possess any and all licenses which are required under state or federal law to perform the work contemplated by this Agreement and that Contractor and its subcontractors shall maintain all appropriate licenses, including a City of Orange business license, at its cost, during the performance of this Agreement.
6. Independent Contractor . At all times during the term of this Agreement, Contractor shall be an independent contractor and not an employee of City. City shall have the right to control Contractor only insofar as the result of Contractor's services rendered pursuant to this Agreement. City shall not have the right to control the means by which Contractor accomplishes services rendered pursuant to this Agreement. Contractor shall, at its sole cost and expense, furnish all facilities, materials and equi pment which may be required for furnishing services pursuant to this Agreement. Contractor shall be solely responsible for, and shall indemnify, defend and save City harmless from all matters relating to the payment of its subcontractors, agents and employees, including compliance with social security withholding and all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever.
Contractor acknowledges that it and any subcontractors, agents or employees employed by Contractor shall not, under any circumstances, be considered employees of City, and that they shall not be entitled to any of the benefits or rights afforded employees of City, including, but not limited to, sick leave, vacation leave, holiday pay, Public Employees Retirement System benefits, or health, life, dental, long-term disability or workers' compensation insurance benefits.
7. Contractor Not Agent. Except as City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor shall have no authority, express or implied, to bind City to any obligation whatsoever.
8. Designated Persons. Only those qualified persons authorized by City’s Project Manager, or as designated in Exhibit “A,” shall perform work provided for under this Agreement.
It is understood by the parties that clerical and other nonprofessional work may be performed by persons other than those designated.
9. Assignment or Subcontracting. No assignment or subcontracting by Contractor of any part of this Agreement or of funds to be received under this Agreement shall be of any force or effect unless the assignment has the prior written approval of City. City may terminate this Agreement rather than accept any proposed assignment or subcontracting. Such assignment or subcontracting may be approved by the City Manager or his/her designee.
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3 10. Time of Completion . Except as otherwise specified in Exhibit “A,” Contractor shall commence the work provided for in this Agreement within five (5) days of the Effective Date of this Agreement and diligently prosecute completion of the work.
11. Time Is of the Essence. Time is of the essence in this Agreement. Contractor shall do all things necessary and incidental to the prosecution of Contractor's work.
12. Reserved.
13. Delays and Extensions of Time . Contractor's sole remedy for delays outside its control, other than those delays caused by City, shall be an extension of time. No matter what the cause of the delay, Contractor must document any delay and request an extension of time in writing at the time of the delay to the satisfaction of City. Any extensions granted shall be limited to the length of the delay outside Contractor’s control. If Contractor believes that delays caused by City will cause it to incur additional costs, it must specify, in w riting, why the delay has caused additional costs to be incurred and the exact amount of such cost at the time the delay occurs. No additional costs can be paid that exceed the not to exceed amount stated in Section 2.a, above, absent a written amendment to this Agreement.
14. Products of Contractor. The documents, studies, evaluations, asses sments, reports, plans, citations, materials, manuals, technical data, logs, files, designs and other products produced or provided by Contractor for this Agreement shall become the property of City upon receipt. Contractor shall deliver all such products to City prior to payment for same. City may use, reuse or otherwise utilize such products without restriction.
15. Equal Employment Opportunity . During the performance of this Agreement, Contractor agrees as follows:
a. Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law. Contractor shall ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law.
Such actions shall include, but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. Contractor agrees to post in conspicuous places, available to employees and applicants for employment, a notice setting forth provisions of this non-discrimination clause.
b. Contractor shall, in all solicitations and advertisements for employees placed by, or on behalf of Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law.
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4 c. Contractor shall cause the foregoing paragraphs (a) and (b) to be inserted in all subcontracts for any work covered by this Agreement, provided that the foregoing provisions shall not apply to subcontracts for standard commercial supplies or raw materials.
16. Conflicts of Interest. Contractor agrees that it shall not make, participate in the making, or in any way attempt to use its position as a consultant to influence any decision of City in which Contractor knows or has reason to know that Contractor, its officers, partners, or employees have a financial interest as defined in Section 8710 3 of the Government Code.
Contractor further agrees that it shall not be eligible to work as the design/build firm for the project that is the subject of this Agreement.
17. Indemnity.
a. To the fullest extent permitted by law , Contractor agrees to indemnify, defend and hold City, its City Council and each member thereof, and the officers, officials, agents and employees of City (collectively the “Indemnitees”) entirely harmless from all liability arising out of:
(1) Any and all claims under workers’ compensation acts and other employee benefit acts with respect to Contractor’s employees or Contractor’s subcontractor’s employees arising out of Contractor’s work under this Agreement, including any and all claims under any law pertaining to Contractor or its employees’ status as an independent contractor and any and all claims under Labor Code section 1720 related to the payment of prevailing wages for public works projects; and
(2) Any claim, loss, injury to or death of persons or damage to property caused by any act, neglect, default, or omission other than a professional act or omission of Contractor, or person, firm or corporation employed by Contractor, either directly or by independent contract, including all damages due to loss or theft sustained by any person, firm or corporation including the Indemnitees, or any of them, arising out of, or in any way connected with the work or services which are the subject of this Agreeme nt, including injury or damage either on or off City’s property; but not for any loss, injury, death or damage caused by the active negligence or willful misconduct of City. Contractor, at its own expense, cost and risk, shall indemnify any and all claims, actions, suits or other proceedings that may be brought or instituted against the Indemnitees on any such claim or liability covered by this subparagraph, and shall pay or satisfy any judgmen t that may be rendered against the Indemnitees, or any of them, in any action, suit or other proceedings as a result of coverage under this subparagraph.
b. To the fullest extent permitted by law, and as limited by California Civil Code 2782.8, Contractor agrees to indemnify and hold Indemnitees harmless from all liability arising out of any claim, loss, injury to or death of persons or damage to property to the extent caused by its negligent professional act or omission in the performance of professional services pursuant to this Agreement.
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5 c. Except for the Indemnitees, the indemnifications provided in this Agreement shall not be construed to extend any third party indemnification rights of any kind to any person or entity which is not a signatory to this Agreement.
d. The indemniti es set forth in this section shall survive any closing, rescission, or termination of this Agreement, and shall continue to be binding and in full force for a period not to exceed four (4) years.
18. Insurance.
a. Contractor shall carry workers ’ compensation insurance as required by law for the protection of its employees during the progress of the work. Contractor understands that it is an independent contractor and not entitled to any worker s’ compensation benefits under any City program.
b. Contractor shall maintain during the life of this Agreement the following minimum amount of comprehensive general liability insurance or commercial general liability insurance: the greater of (1) One Million Dollars ( $1,000,000) per occurrence ; or (2) all the insurance coverage and/or limits carried by or available to Contractor. Said insurance shall cover bodily injury, death and property damage and be written on an occurrence basis.
c. Contractor shall maintain during the life of this Agreement, the following minimum amount of automotive liability insurance: the greater of (1) a combined single limit of One Million Dollars (1,000,000); or (2) all the insurance coverage and/or limits carried by or available to Contractor. Said insurance shall cover bodily injury, death and property damage for all owned, non-owned and hired vehicles and be written on an occurrence basis.
d. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits which are applicable to a given loss shall be available to City. No representation is made that the minimum insurance requirements of this Agreement are sufficient to cover the obligations of Contractor under this Agreement.
e. Each policy of general liability and automotive liability shall provide that City, its officers, officials, agents, and employees are declared to be additional insureds under the terms of the policy, but only with respect to the work performed by Contractor under this Agreement. A policy endorsement to that effect shall be provided to City along with the certificate of insurance. In lieu of an endorsement, City will accept a copy of the policy(ies) which evidences that City is an additional insured as a contracting party. The minimum coverage required by Subsection 18.b and c, above, shall apply to City as an additional insured. Any umbrella liability insurance that is provided as part of the general or automobile liability minimums set forth herein shall be maintained for the duration of the Agreement.
f. Contractor shall maintain during the life of this Agreement professional liability insurance covering errors and omissions arising out of the performance of this Agreement with a minimum limit of One Million Dollars ($1,000,000) per claim. Contractor agrees to keep 197
6 such policy in force and effect for at least five (5) years from the date of completion of this Agreement.
g. The insurance policies maintained by Contractor shall be primary insurance and no insurance held or owned by City shall be called upon to cover any loss under the policy.
Contractor will determine its own needs in procurement of insurance to cover liabilities other than as stated above.
h. Before Contractor performs any work or prepares or delivers any materials, Contractor shall furnish certificates of insurance and endorsements, as required by City, evidencing the aforementioned minimum insurance coverages on forms acceptable to City, which shall provide that the insurance in force will not be canceled or allowed to lapse without at least ten (10) days’ prior written notice to City.
i. Except for professional liability insurance coverage that may be required by this Agreement, all insurance maintained by Contractor shall be issued by companies admitted to conduct the pertinent line of insurance business in California and having a rating of Grade A or better and Class VII or better by the latest edition of Best Key Rating Guide. In the case of professional liability insurance coverage, such coverage shall be issued by companies either licensed or admitted to conduct business in Califo rnia so long as such insurer pos sesses the aforementioned Best rating.
j Contractor shall immediately notify City if any required insurance lapses or is otherwise modified and cease performance of this Agreement unless otherwise directed by City.
In such a case, City may procure insurance or self-insure the risk and charge Contractor for such costs and any and all damages resulting therefrom, by way of set -off from any sums owed Contractor.
k. Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide insurance, Contractor shall look solely to its insurance for recovery.
Contractor hereby grants to City, on behalf of any insurer providing insurance to either Contractor or City with respect to the services of Contractor herein, a waiver of any right to subrogation which any such insurer may acquire against City by virtue of the payment of any loss under such insurance.
l. Contractor shall include all subcontractors, if any, as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor to City for review and approval. All coverages for subcontractors shall be subject to all of the requirements stated herein.
19. Termination. City may for any reason terminate this Agreement by giving Contractor not less than five (5) days’ written notice of intent to terminate. Upon receipt of such notice, Contractor shall immediately cease work, unless the notice from City provides otherwise.
Upon the termination of this Agreement, City shall pay Contractor for services satisfactorily provided and all allowable reimbursements incurred to the date of termination in compliance with 198
7 this Agreement, unless termination by City shall be for cause, in which event City may withhold any disputed compensation. City shall not be liable for any claim of lost profits.
20. Maintenance and Inspection of Records. In accordance with generally accepted accounting principles, Contractor and its subcontractors shall maintain reasonably full and complete books, documents, papers, accounting records, and other information (collectively, the “records”) pertaining to the costs of and completion of services performed under this Agreement.
City and its authorized representatives shall have access to and the right to audit and reproduce any of Contractor's records regarding the services provided under this Agreement. Contractor shall maintain all such records for a period of at least three (3) years after termination or completion of this Agreement. Contractor agrees to make available all such records for inspection or audit at its offices during normal business hours and upon three (3) days’ notice from City, and copies thereof shall be furnished if requested.
21. Compliance with all Laws/Immigration Laws.
a. Contractor shall be knowledgeable of and comply with all local, state and federal laws which may apply to the performance of this Agreement.
b. If the work provided for in this Agreement constitutes a “public works,” as that term is defined in Section 1720 of the California Labor Code, for which prevailing wages must be paid, to the extent Contractor’s employees will perform any work that falls within any of the classifications for which the Department of Labor Relations of the State of California promulgates prevailing wage determinations, Contractor hereby agrees that it, and any subcontractor under it, shall pay not less than the specified prevailing ra tes of wages to all such workers . The general prevailing wage determinations for c rafts can be located on the web site of the Department of Industrial Relations (www.dir.ca.gov/DLSR). Additionally, to perform work under this Contract, Contractor must meet all State registration requirements and criteria, including project compliance monitoring.
c. Contractor represents and warrants that it:
(1) Has complied and shall at all times during the term of this Agreement comply, in all respects, with all immigration laws, regulations, statutes, rules, codes, and orders, including, without limitation, the Immigration Reform and Control Act of 1986 (IRCA); and
(2) Has not and will not knowingly employ any individual to perform services under this Agreement who is ineligible to work in the United States or under the terms of this Agreement; and
(3) Has properly maintained, and shall at all times during the term of this Agreement properly maintain, all related employment documentation records including, without limitation, the completion and maintenance of the Form I -9 for each of Contractor’s employees; and
199
8 (4) Has responded, and shall at all times during the term of this Agreement respond, in a timely fashion to any government inspection requests relating to immigration law compliance and/or Form I -9 compliance and/or worksite enforcement by the Department of Homeland Security, the Department of Labor, or the Social Security Administration.
d. Contractor shall require all subcontractors or subconsultants to make the same representations and warranties as set forth in Subsection 21.c.
e. Contractor shall, upon request of City, provide a list of all employees working under this Agreement and shall provide, to the reasonable satisfaction of City, verification that all such employees are eligible to work in the United States. All costs associated with such verification shall be borne by Contractor. Once such request has been made, Contractor may not change employees working under this Agreement without written notice to City, accompanied by the verification required herein for such employees.
f. Contractor shall require all subcontractors or sub-consultants to make the same verification as set forth in Subsection 21.e.
g. If Contractor or subcontractor knowingly employs an employee providing work under this Agreement who is not authorized to work in the United States, and/or fails to follow federal laws to determine the status of such employee, that shall constitute a material breach of this Agreement and may be cause for immediate termination of this Agreement by City.
h. Contractor agrees to indemnify and hold City, its officers, officials, agents and employees harmless for, of and from any loss, including but not limited to fines, penalties and corrective measures City may sustain by reason of Contractor's failure to comply with said laws, rules and regulations in connection with the performance of this Agreement.
22. Governing Law and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California and Contractor agrees to submit to the jurisdiction of California courts. Venue for any dispute arising under this Agreement shall be in Orange County, California.
23. Integration. This Agreement constitutes the entire agreement of the parties. No other agreement, oral or written, pertaining to the work to be performed under this Agreement shall be of any force or effect unless it is in writing and signed by both parties. Any wo rk performed which is inconsistent with or in violation of the provisions of this Agree ment shall not be compensated.
24. Notice. Except as otherwise provided herein, all notices required under this Agreement shall be in writing and delivered personally , by e -mail, or by first class U.S. mail, postage prepaid, to each party at the address listed below. Either party may change the notice address by notifying the other party in writing. Notices shall be deemed received upon receipt of same or within three (3) days of deposit in the U.S. Mail, whichever is earlier. Notices sent by e- mail shall be deemed received on the date of the e-mail transmission. 200
9 “CONTRACTOR” “CITY”
NaviRetail Inc. City of Orange
201 Main Street, Suite 600 300 E. Chapman Avenue
Fort Worth, TX 76102 Orange, CA 92866-1591
Attn.: Casey Kidd Attn.: City Manager
Telephone: (901) 654-0790 Telephone: (714) 744-2222 E-Mail: [email protected] E-Mail: [email protected]
25. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures transmitted via facsimile and electronic mail shall have the same effect as original signatures.
[Remainder of page intentionally left blank; signatures on next page]
201
10 IN WITNESS of this Agreement, the parties have entered into this Agreement as of the year and day first above written.
“CONTRACTOR” “CITY”
NAVIRETAIL INC., a Mississippi corporation CITY OF ORANGE, a municipal corporation
*By: By:
Printed Name: Casey Kidd Daniel R. Slater, Mayor Title: CEO
*By: ATTEST:
Printed Name:
Title:
Pamela Coleman, City Clerk
APPROVED AS TO FORM:
Nathalie Adourian
Senior Assistant City Attorney
*NOTE: City requires the following signature(s) on behalf of the Contractor:
-- (1) the Chairman of the Board, the President or a Vice-President, AND (2) the Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or an Assistant Treasurer. If only one corporate officer exists or one corporate officer holds more than one corporate office, please so indicate. OR -- The corporate officer named in a corporate resolution as authorized to enter into this Agreement. A copy of the corporate resolution, certified by the Secretary close in time to the execution of the Agreement, must be provided to City.
202
EXHIBIT “A”
SCOPE OF SERVICES
[Beneath this sheet.]
203
Memphis Office
5100 Poplar Avenue
Suite 2700
Memphis, Tennessee 38137
Fort Worth Office
201 Main Street
Suite 600
Fort Worth, Texas 76102
PROPOSED
SCOPE OF WORK
Market Analysis and Retail Development Services
Orange, California February 2023
We are the retail experts.
VALID FOR 60 DAYS
204
Casey Kidd, CEO
NaviRetail Inc.
201 Main Street
Suite 600
Fort Worth, Texas 76102
February 14, 2024
Aaron Schulze, Economic Development Manager
City of Orange
300 East Chapman Avenue
Orange, California 92866
Re: Market Analysis and Retail Development Services
Aaron:
I want to take this opportunity to thank you for reviewing our Scope of Work and considering us. NaviRetail has long-awaited the chance to work with Orange.
As we've discussed in the past, we do things very differently, and I truly believe this approach is exactly what the city needs in order to accomplish its many development goals.
As a company, we take great pride in ensuring that every detail of a project is not only recognized, but also, addressed in a very intentional manner. Our approach to every project prioritizes the following:
1. Quality over quantity
2. Cutting-edge creativity
3. Commitment and perseverance
We believe that every project should begin with a well-defined plan; however, I can't emphasize enough the need for economic responsibility and sustainability when crafting this plan. We are full-fledged supporters of new business development while also maintaining economic sustainability amongst current businesses in Orange.
With your help, I believe that we can not only accomplish the goals of the city, but exceed them in every way. I am confident we will have success, and I can't wait to see Orange thrive like we all know it should.
Please review the following Scope of Work; and if you should have any questions, feel free to contact me directly via phone at (662) 419-8098 or e-mail at [email protected].
Sincerely,
Casey Kidd, CEO
We are the retail experts.
205
EXECUTIVE
SUMMARY
206
4 EXECUTIVE SUMMARY
You might be asking yourself: Why is ___________ not here? or How come we don’t have a ___________? The answers to these questions vary from scenario to scenario, but one thing remains true for all: If they could be there, they would be. Our goal is to find out what is keeping them from being there and mitigate any issues that might stand in the way of them locating.
Year 1
Phase 1: Critical Path Method & Project Kickoff
We will meet with the economic development staff to organize efforts and determine the CPM for future development in Orange. This step ensures our process remains both efficient and pragmatic.
Phase 2: Data Gathering & Collection
We will start by gathering all the necessary data and facts about the area. This data focuses primarily on those who frequently shop and eat in the area, not just those who live within the Orange city limits.
Phase 3: Market Analysis & Mobility Assessment
We will use market insights to study the patterns and trends concerning Orange's consumers. With this information, we can better affect recruitment. This helps us to "zero-in" on prospective business targets.
Phase 4: Combine Reports & Market Findings
We will create comprehensive reports to better convey what this information means. What good is all of this useful information if presented in a way that is hard to digest or understand? Simple is better and that's exactly our approach.
Phase 5: Community Forum & Recruitment Workshop
We will host two separate seminars in Orange where local stakeholders, developers, and businesses all have a chance to network as well as receive relevant market data. Community buy-in is imperative.
Phase 6: Retailer Matching & Targeting Strategies
We will match the city's data to businesses that are a fit for Orange. Effective targeting is crucial to the success of our recruitment efforts. This is why possessing in-depth data about the city's consumers proves to be so important.
Phase 7: Site Matching & Inventory Assessment
We will match targeted businesses with sites that would best suit them. Matching retailers with sites that fit their consumer's psychographic profile and spending trend is paramount when courting a business prospect.
Phase 8: Hotel Market Analysis & Feasibility Study (Optional +$10,000) We will prepare a hotel feasibility study for a proposed hotel property in Orange so that NaviRetail has adequate and necessary marketing collateral while attracting prospective hotel developers to the city.
Phase 9: Action Items & Recommendations
We will identify and address any issues that might be hindering the city's development goals. We will submit relevant recommendations that serve to mitigate obstacles that would slow down the development process.
Phase 10: Business Recruitment & Retention
We will begin contacting targeted retailers and developers on the city's behalf. This is where our vast network of industry connections with both retailers and developers is such a value to Orange. Having a "foot in the door" speeds up this process tremendously.
207
COMPANY BACKGROUND &
EXPERIENCE
208
6 ABOUT US
Founded in 2016, NaviRetail quickly became the industry leader in economic development consulting and new business recruitment. The tenure of several employees at other companies provided a new perspective on the retail recruitment industry and has allowed NaviRetail to differentiate itself from competitors.
NaviRetail team members have worked in as many as 30 different states and over 400 communities all across the U.S. With over 50 years in combined experience, we are shedding new light on the retail recruitment industry. This perspective is mandatory to recruit the retailers your constituents want to see.
We want to show you the retail
potential Orange has and also allow
you the opportunity to work together
with us during the process. This is the
part of our job that we love the most.
Developing relationships and working
directly with communities are the key
elements to success.
We are dedicated to becoming a full-
fledged community partner, as this is the
exact sort of environment which yields
success. We will bridge the gap between
both the public and private sectors.
Active Markets
OUR COMPANY
Fort Worth, TX
Memphis, TN
OVER
400
CITIES
Clark Tower – Memphis, Tennessee Office Wells Fargo Tower – Fort Worth, Texas Office 209
7 OUR LEADERSHIP
Casey Kidd
Chief Executive Officer
A native of North Mississippi, Casey Kidd has worked as an economic development consultant across the U.S. for more than a decade. His passion for unconventional data analysis, combined with his knack for working deals for cities from start to finish, make him a well-suited match for the ever-changing retail market. Kidd has worked with government officials and stakeholders in over 400 communities and 30 states — and can likely tell you the exact address of city hall, the nearest Walmart, and the best local brewery in each of them.
Aside from his expertise in data analysis and placemaking, Kidd is largely guided by his personal relationships with national retailers. These connections give him an insider’s perspective into specifics retailers look for when considering a new site, as well as how cities can position themselves more competitively in today’s market.
Early in his career, Kidd developed the first technology for interpreting cell phone data to track consumer movement and spending; and he continues to be committed to giving back to the industry with the development of cutting edge technology.
Before his love for data and dealmaking sent him on the road, Casey traveled as a professional musician and composer. His work is still brought to life by groups across the world, while he spends most of his days now on an airplane (possibly one he’s piloting), on the phone, or at a desk making deals happen for small town America.
About the CEO
Walker Wright
Vice President &
Director of Sales
Casey Kidd
President &
Chief Executive Officer
Dan Umberger
Treasurer &
Director of Operations
Jeff Leathers
Secretary &
General Counsel
Board of Directors
210
PROPOSED
SCOPE OF WORK
211
9 SCOPE OF WORK
Critical Path Method & Project Kickoff
Thank you for taking the initiative to be proactive rather than reactive. By hiring us, you're proving that the future development in Orange is a priority that cannot be ignored. Our critical path method (CPM) includes several discussion topics listed below. We look forward to kicking off this project with the city and discussing our approach.
Our plan, while not necessarily a step-by-step guide, will aid in the decisions the city will be making in determining the future for Orange. We will place much emphasis on ensuring economic democracy amongst current businesses so as not to change the self-managed enterprises that already exist in the local market.
We will thoroughly research and analyze various aspects about the community, even outside of the local economy, so that we offer the most complete perspective available by an outside firm. The topics presented will be done so in a diplomatic fashion, but with the utmost importance placed on truth, accuracy, and pragmatism.
Topics To Be Covered:
This list is simply a minimum list of topics to be included and is expected to grow as this process continues and our data is gathered.
• Business Feasibility and Consumer Targeting
• Overall Aesthetics of the Orange Market
• Government Organization and Economic Solidarity
• Inclusion and Availability of Small Business Resources • Available Properties Highest and Best Uses
• Future Housing Development
• Infrastructure Improvements and Expansion
• Retail Education and Current Business Development
• Tourism Planning and Staffing Considerations
• Young Talent Retention Strategies
• Workforce Development and Education
Phase 1
212
10 Identify Existing Businesses
NaviRetail will identify existing businesses
in the market to survey the base of all the
consumers present in the market.
Ping Mobile Device Data
NaviRetail will collect mobile device (cell phone) data about these consumers to better understand their trends and patterns.
Collect Demographics, Psychographics, and Leakage/Surplus Data NaviRetail will collect all relevant demographic, psychographic, and sales leakage/surplus data to be paired with relevant mobile device data.
How do you do that?
Through strategic partnerships, NaviRetail has the ability to track the GPS in location-enabled devices all across the United States. This data shows us where consumers live, work, and even where they were leading up to the surveyed retail location.
Why is this important?
Possessing accurate data is paramount. Retailers rely heavily on specific data regarding their consumers, and thankfully – NaviRetail is able to provide them with just that. Being able to show them what’s happening in a given market is the first step to effective retail recruitment.
Data Gathering & Collection
SCOPE OF WORK
1 2
3 Phase 2
213
11 Determine Retail Trade Area(s)
NaviRetail will evaluate the Retail Trade Areas for your market by filtering through the mobile device data collected, leaving only the most frequent consumers.
Pair Data Sets
NaviRetail will pair geographic data with other data sources that may include consumer spending surveys, credit card transactions, and lifestyle attributes.
Analyze Collected Data
NaviRetail will thoroughly analyze the demographics, psychographics, and leakage/surplus data to determine who your consumers are and what they’re buying elsewhere.
Compare Peer Communities
NaviRetail will identify peer communities with similar demographics that already possess the desired retail offerings the city seeks, helping to better understand how and why they located where they did.
Identify Competing Communities
NaviRetail will identify competing communities that might be causing consumers to leave the city to purchase a particular good or service, ultimately causing retail sales to leak outside the city.
Why is this important?
Knowing the consumers in a given market is essential for targeting suitable retailers. We spend quite a bit of time gathering and analyzing information to accomplish this. In the end, the retailers feel most confident in their decision when they can depend on the information we’ve provided, even after a store is built.
Market Analysis & Mobility Assessment
SCOPE OF WORK
1 2
3 4
5 Phase 3
214
12 Create Retail Marketing Flyer
NaviRetail will create marketing pieces for the city that contains pertinent information retailers and developers might want to see in first conversations.
Create Demographic, Psychographic, and Leakage/Surplus Reports NaviRetail will compile all the collected demographic, psychographic, and leakage/surplus data into comprehensive reports, allowing the city to understand their standing in the local market.
Create Peer Analysis Report
NaviRetail will create a report detailing the identified peer communities that are similar, as well as information about how they might have obtained their current selection of retailers.
Create Competing Communities Report
NaviRetail will create a report that lists the current competing communities of the city, threats that they might impose, as well as potential opportunities that exist because of their current situation.
Create Radial & Drive-time Reports
NaviRetail will create several different radial and drive-time reports, allowing for fast access of general demographic information if needed by the city or members of NaviRetail while at trade shows.
Why is this important?
Not only do we provide you valuable data about your consumers, but we also compile it into a format retailers want to see. Branding is an extremely powerful tool when reaching out to retailers; therefore, we ensure that all of your reports are not only helpful, but also eye-catching and consistent. This is very influential when retailers are reviewing the facts about your consumers and Retail Trade Area.
Combine Reports & Market Findings
SCOPE OF WORK
1 2
3 4
5 Top Origins
1 Destin Executive (Destin, FL) (KDTS)
2 Bruce Campbell Field (Madison, MS) (KMBO)
3 Jackson-Medgar Wiley Evers Intl (Jackson, MS) (KJAN)
4 Tuscaloosa Rgnl (Tuscaloosa, AL) (KTCL)
5 Jack Edwards (Gulf Shores, AL) (KJKA)
6 John C Tune (Nashville, TN) (KJWN)
7 Sarasota/Bradenton Intl (Sarasota/Bradenton, FL) (KSRQ) 8 Indianola Muni (Indianola, MS) (KIDL)
Top Destinations
1 Destin Executive (Destin, FL) (KDTS)
2 Jackson-Medgar Wiley Evers Intl (Jackson, MS) (KJAN)
3 Bruce Campbell Field (Madison, MS) (KMBO)
4 Tupelo Rgnl (Tupelo, MS) (KTUP)
5 Jack Edwards (Gulf Shores, AL) (KJKA)
6 Lakefront (New Orleans, LA) (KNEW)
7 Indianola Muni (Indianola, MS) (KIDL)
8 Millington Rgnl Jetport (Millington, TN) (KNQA)
Top Aircraft Types
1 Cessna Citation CJ1 (twin-jet) (C525)
2 Cirrus SR-22 (piston-single) (SR22)
3 Beechcraft Super King Air 200 (twin-turboprop) (BE20) 4 Beechcraft King Air 90 (twin-turboprop) (BE9L)
5 Cessna Skylane (piston-single) (C182)
6 Beechcraft Baron (58) (twin-piston) (BE58)
7 Cessna Citation II (twin-jet) (C550)
8 Embraer Phenom 300 (twin-jet) (E55P)
Nearby Airports
University-Oxford (KUOX) Jet A w/ Prist 100LL FS 100LL SS University Oxford Airport -- $4.90 $4.80 N/A
Ripley (25M) Jet A w/ Prist 100LL FS 100LL SS
Ripley Airport $2.75 -- -- $3.30
Grenada Muni (KGNF) Jet A w/ Prist 100LL FS 100LL SS
Grenada Municipal Airport $3.40 $3.50 $4.25 --
Memphis Intl (KMEM) Jet A w/ Prist 100LL FS 100LL SS
Signature Flight Support $6.23 $6.32 $6.33 --
Signature Flight Support $6.36 $6.32 $6.33 --
Wilson Air Center $6.08 $6.14 $6.23 --
Field average $6.22 $6.26 $6.30 --
Olive Branch (KOLV) Jet A w/ Prist 100LL FS 100LL SS
METRO Aviation $4.35 $4.35 $4.99 --
Panola County (KPMU) Jet A w/ Prist 100LL FS 100LL SS
Turmin Aviation $4.00 -- -- $4.35
Tupelo Rgnl (KTUP) Jet A w/ Prist 100LL FS 100LL SS
Tupelo Aviation Unlimited $4.25 -- $4.49 $3.99
Tunica Muni (KUTA) Jet A w/ Prist 100LL FS 100LL SS
Tunica Air Center $3.53 $3.58 $4.55 --
Holly Springs-Marshall County (M41) Jet A w/ Prist 100LL FS 100LL SS John Jewell Aircraft $3.73 -- -- $4.93
New Albany-Union Co (M72) Jet A w/ Prist 100LL FS 100LL SS City of New Albany & Union County -- -- -- $4.00
Average Fuel Prices in Surrounding Region
Radius Jet A w/ Prist 100LL FS 100LL SS
30sm $3.87 -- -- $4.64
50sm $3.21 $3.92 $4.58 $4.11
Common Origins and Destinations
Destin Executive (KDTS) Jet A w/ Prist 100LL FS 100LL SS Lynx FBO North $5.54 $5.59 $6.29 --
Lynx FBO South $5.54 $5.59 $6.29 --
Field average $5.54 $5.59 $6.29 --
Indianola Muni (KIDL) Jet A w/ Prist 100LL FS 100LL SS
Valley Air Applications $0.01 -- $4.94 --
Jackson-Medgar Wiley Evers Intl (KJAN) Jet A w/ Prist 100LL FS 100LL SS Atlantic Aviation $5.15 $5.25 $5.85 --
Jack Edwards (KJKA) Jet A w/ Prist 100LL FS 100LL SS
Gulf Air Center -- $4.98 $4.59 --
Platinum Air Center $3.97 $4.02 $4.37 --
Salt Air Aviation Center -- $3.99 $4.39 --
Field average $3.97 $4.33 $4.45 --
John C Tune (KJWN) Jet A w/ Prist 100LL FS 100LL SS
Contour Flight Support $5.19 $5.19 $5.98 $5.48
Bruce Campbell Field (KMBO) Jet A w/ Prist 100LL FS 100LL SS Madison Air Center -- $3.98 $4.56 --
Lakefront (KNEW) Jet A w/ Prist 100LL FS 100LL SS
Flightline First $5.39 $5.48 $5.40 --
Signature Flight Support $5.76 $5.83 $5.77 --
Signature Flight Support $5.64 $5.83 $5.77 --
Field average $5.60 $5.71 $5.65 --
Millington Rgnl Jetport (KNQA) Jet A w/ Prist 100LL FS 100LL SS CTI Aviation Services $2.44 $2.44 $3.54 $3.39
Tulsair Beechcraft $2.40 $2.40 $3.50 --
Field average $2.42 $2.42 $3.52 --
Tuscaloosa Rgnl (KTCL) Jet A w/ Prist 100LL FS 100LL SS Dixie Air $4.50 $4.50 $5.10 --
Hawthorne Global Aviation Services -- $4.80 $5.15 --
Field average $4.50 $4.65 $5.12 --
Arrivals (peak: 2/hr)
hour: 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Departures (peak: 3/hr)
hour: 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Combined (peak: 4/hr)
hour: 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
RETAIL OPPORTUNITY
GRENADA
MISSISSIPPI
Grenada by the numbers...
Retail Trade Area
All facts and figures represented here are current as of 8/17 and taken specifically from the Grenada, Mississippi Retail T rade Area (above). 72,102 total households
192,751 total population
$49,908 average hh income
Over 25k vehicles per day
Grenada employs 8,495 people
$40k in disposable income
John L. “Trey” Baker
City Manager
City of Grenada
108 South Main Street
Grenada, Mississippi 38901
(o) 662-227-3457
(c) 662-699-0396
[email protected]
www.cityofgrenada.net
16,472 adults purchased merchandise
at a TSC store in the last 12 months
40,327 adults participated in outdoor
gardening within the last 12 months
$7,159,957 in total opportunity for
lawn & garden stores in Grenada
OxfordBatesville
Calhoun City
Clarksdale
Cleveland
Greenwood Winona
Grenada
I-55
I-22
n
© 2018 Google
© 2018 Google
© 2018 GoogleImage Landsat / Copernicus
Image Landsat / Copernicus
Image Landsat / Copernicus
The information presented here is provided by NaviRetail, LLC in Memphis, Tennessee. Sources may include STR, WSDOT, ReportAll, ESRI, and Google Earth.
Data is current as of 10/18 and was compiled from sources that are deemed reliable but not guaranteed. For more information, go to www.naviretail.com. 16,276 total households
57,781 total population
$62,465 average hh income
25k vehicles per day
Grandview employs 3,200+ people
$52k in disposable income
Facts & Figures
RetailOpportunity
Retail Trade Area
Cus Arteaga
City Administrator
City of Grandview
207 W. 2nd St.
Grandview, WA 98930
office (509) 882-9211
fax (509) 882-9232
[email protected]
www.grandview.wa.us
MarketHighlights
Grandview supplies its retail trade area
with roughly 18% of its businesses
49% of households in the retail trade
area earn over $50,000 each year
$339,612,740 in total unmet retail
demand within the City of Grandview
Population is forecasted to grow a total
of nearly 3% over the next five years
Phase 4
215
13 Host Seminars for Local Businesses & Stakeholders
NaviRetail will host two (2) seminars in Orange:
The first seminar will invite local businesses and other major stakeholders to help identify ways in which to enrich the current retail landscape in Orange.
The second seminar will invite the City Council and the Planning / Zoning Commission to come and learn about what retail recruitment entails and ultimately means for the city as we work through this process together.
Connect Locals with Opportunities for Development or Franchising NaviRetail will educate stakeholders about development and franchising opportunities, gather contact information, and follow-up with interested parties about how to get involved.
Identify Potential Development & Redevelopment Opportunities NaviRetail will identify and pursue potential development and redevelopment opportunities involving those locally that might be interested in helping with future development or redevelopment in the area.
Why is this important?
Connecting with local stakeholders is essential for getting the entire city on the same page. We prefer to do this prior to starting recruitment rather than after the fact. This way, if there are any potential issues, we can mitigate those on the front end - not after we have an interested party.
Community Forum & Recruitment Workshop
SCOPE OF WORK
1 2
3 Phase 5
216
14 Analyze Retail Wish List
NaviRetail will collect and analyze a "retail wish list" from the city. This is a list of retailers that constituents have expressed they would like to see added to Orange's retail base.
Identify Expanding Retailers
NaviRetail will identify and track retailers that are currently expanding, as well as keeping a mindful watch on retailers who are currently not expanding, but might potentially be in the near future.
Create Retailer Target List
NaviRetail will create a list of retailer targets that fit Orange's demographics and needs. This list will be a combination of matches from the retail wish list, as well as other targets added by NaviRetail.
Why is this important?
Knowing who to target at trade shows and events is sometimes half the battle of recruiting retail. The retail recruitment industry is changing at a very fast pace. Going blindly after retailers can not only be ineffective, but possibly even detrimental.
NaviRetail focuses on tracking movement in the retail industry so that we always know who, when, and how to target the retailers we've matched to Orange.
Retailer Matching & Targeting Strategies
SCOPE OF WORK
1 2
3 Phase 6
217
15 Catalog Available Properties
NaviRetail will research and catalog the current available properties for retail in Orange. This property database information is essential for next steps when we identify an interested party.
Match Sites to Retailer Targets
NaviRetail will match the targeted retailers to suitable sites for development and render a conceptual site plan for the proposed development(s).
Determine Any Potential Issues
NaviRetail will identify potential issues or obstacles that may exist concerning a retailer locating on a given property. We will also work to mitigate these issues before the initial contact with the retailer.
Why is this important?
The retailers always take the path of least resistance and the more information we can provide them initially, the better the chance is that they'll take it back to the office and do their own research.
By collecting and organizing some of this information for the retailers, we streamline the recruitment process.
This allows us to see results faster rather than waiting for our initial contact with the retailers to collect and sort this data.
Site Matching & Inventory Assessment
SCOPE OF WORK
1 2
3 Phase 7
218
16 SCOPE OF WORK
Collect Hotel Market Data
NaviRetail will gather relevant market data from existing properties in the Orange hotel market area.
This data will help serve Orange for both future developments and the retention of existing hotel properties.
Analyze Hotel Market Conditions
NaviRetail will evaluate the hotel market in Orange to measure the market rebound from the COVID-19 pandemic. This includes a review of data from previous years, including the pandemic, and comparison to current market conditions.
Prepare Hotel Feasibility Study
NaviRetail will prepare a Hotel Feasibility Study for the purposes of building a proposed property in Orange and the feasibility of this project thereof. This will detail the construction costs, land costs, and include market data to show whether this project would be feasible or not, and to what extent.
Why is this important?
We believe that adequate hotel lodging space is a very necessary piece of a town's overall tourism strategy.
This ensures that the tourist or business traveler is able to make all purchases locally when suitable hotel properties are available near their final destination.
Hotel Market Analysis & Feasibility Study
1 2
3 Phase 8 (Optional)
219
17 Send Progress Reports
NaviRetail will send frequent progress reports to our point of contact throughout this project.
Follow up with Stakeholders and Forum Attendees
NaviRetail will be available for contact by forum attendees throughout this project.
Identify Action Items and Recommendations
NaviRetail will identify potential obstacles that stand in the way of development in Orange and recommend ways in which the city can work to mitigate these issues.
Why is this important?
It's difficult to fix a problem that you never knew was a problem. That's where our help proves to be invaluable to Orange.
We believe wholeheartedly that if development could happen without further city intervention, it would.
When it hasn't already, we see it as our duty to identify and inform our clients how to be proactive in mitigating any issue that might hinder development.
Action Items & Recommendations
SCOPE OF WORK
1 2
3 Phase 9
220
18 Attend Retail Trade Shows
NaviRetail will attend the following trade shows on behalf of Orange (if deemed safe to do so):
• Retail Live! Carolinas
• ICSC @ Monterey
• ICSC @ Carolinas
• ICSC @ Red River States
• Retail Live! Southeast
• ICSC @ Las Vegas
• ICSC @ New England
• ICSC @ Florida
• Retail Live! Southcentral
• ICSC @ PA/NJ/DE
• ICSC @ Western
• ICSC @ Central
• ICSC @ Southeast
• Retail Live! Southwest
• ICSC @ New York
Contact Retailers
NaviRetail will contact the retailers listed on the Retailer Match List, at minimum, quarterly.
Contact Developers
NaviRetail will contact the developers listed on the Developer Match List, at minimum, quarterly.
Why is this important?
We believe that retail trade show marketing should be the core of any retail recruitment strategy. That is why we attend trade shows on behalf of our clients all across the United States.
Not only do we leverage our many years of industry connections on behalf of Orange, but we also employ checks and balances to make sure existing businesses continue to thrive while recruiting new ones.
Business Recruitment & Retention
SCOPE OF WORK
1 2
3 Phase 10
221
19 Year 1
Agreement is Signed
Both parties have fully executed the agreement.
First Payment
Once the agreement is signed, Orange shall remit $50,000* to NaviRetail.
Client Visit
NaviRetail will make a trip to Orange.
Phase 1: Critical Path Method & Project Kickoff
This will be started immediately.
Phase 2: Data Gathering & Collection
This will be started immediately.
Phase 3: Market Analysis & Mobility Assessment
This will be completed 3-4 weeks after Project Kickoff.
Phase 4: Combine Reports & Market Findings
This will be completed 4-5 weeks after Project Kickoff.
Client Visit
NaviRetail will make a trip to Orange.
Phase 5: Community Forum & Business Workshop
This will be completed 1-2 months after Project Kickoff, schedules permitting.
Phase 6: Retailer Matching & Targeting Strategies
This will be completed within 3 months of Project Kickoff.
Phase 7: Site Matching & Inventory Assessment
This will be completed within 4 months of Project Kickoff.
Phase 8: Hotel Market Analysis & Feasibility Study (Optional +$10,000) This will be completed within 5 months of Project Kickoff.
Phase 9: Action Items & Recommendations
This will be completed within 6 months of Project Kickoff.
Phase 10: Actual Business Recruitment & Retention
We will begin retailer/developer contacting once the retailer match list has been approved by Orange.
Client Visit
NaviRetail will make a trip to Orange.
*Pricing is valid for sixty (60) days.
TIMELINE & PRICING
222
20 Year 1
• Community Demographic Profile
• Primary & Secondary Retail Trade Areas Demographic Profiles • Primary & Secondary Retail Trade Areas Psychographic Profiles • Total Retail Trade Area Gap Analysis
• Retail Marketing Flyer
• Peer Communities Analysis
• Competing Communities Analysis
• Radial Demographic Profiles
• Drive-time Demographic Profiles
• Community Forum
• Recruitment Workshop
• Retailer Match List
• Developer Match List
• Available Property Database
• Conceptual Site Plan
• Hotel Feasibility Study (If Selected)
• Action Items
• Trade Show Attendance
• Retailer Contacting
• Developer Contacting
PROJECT DELIVERABLES
223
PROFESSIONAL SERVICES
AGREEMENT
224
22 PROFESSIONAL SERVICES AGREEMENT
This contract (“Agreement”) is entered into as of the date this Agreement is signed by both parties (“Effective Date”), between the City of Orange (“the Client”), and NaviRetail Inc., a Mississippi Corporation (“the Contractor”) (each a “Party” and collectively “Parties”), acting through their authorized representatives.
WHEREAS, the Client wishes to engage the services of the Contractor to assist the Client in their retail recruitment efforts (“the Project”). The Contractor wishes to provide services for Market Analysis and Retail Development Services, as described in this Scope of Work (“the Proposal”).
THEREFORE, in exchange for the mutual obligations in this Agreement, and other consideration, the Parties agree as follows:
1. Term of Agreement
1.1 This Agreement commences on the Effective Date and continues through twelve (12) months from Effective Date.
1.2 The Parties may extend the term of this Agreement by mutual agreement in a writing signed by both Parties which specifically states it is extending the term of this Agreement.
2. Services by the Contractor
2.1 The Contractor shall perform the services in connection with the Project as set forth in the Proposal on the schedule set forth in the Proposal.
2.2 The Parties acknowledge and agree that any and all opinions provided by the Contractor in connection with the Proposal represent the professional judgment of the Contractor in accordance with the professional standard of care applicable by law to the services performed hereunder.
2.3 The Contractor shall devote such time as reasonably necessary for the satisfactory performance of the services under this Agreement. Should the Client require additional services not included under this Agreement, the Contractor shall make reasonable effort to provide such additional services within the time schedule without decreasing the effectiveness of the performance of services required under this Agreement and shall be compensated for such additional services as agreed between the Parties.
2.4 The Contractor shall furnish the facilities, equipment and personnel necessary to perform its obligations under this Agreement.
2.5 Except for the obligations and restrictions expressly contained in this Agreement, nothing contained herein shall prohibit the Contractor from rendering services to any other entities during the term of this agreement.
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23 3. Compensation to the Contractor
3.1 The Client shall remit one payment to the Contractor for $50,000.00 in accordance with the amounts listed in the Proposal. Payments are to be made within fifteen (15) days of the Effective Date.
3.2 The Contractor shall be entitled to no additional compensation under this Agreement unless the Parties agree to additional compensation in a writing signed by both Parties which specifically states it is altering the compensation due under this Agreement.
4. Termination
4.1. Either Party may terminate this Agreement immediately upon the material breach of the other Party.
5. General Obligations and Agreements
5.1 Amendments. Modifications or amendments to this Agreement are only effective if done in a writing signed by all Parties, which specifically states it is modifying or amending this Agreement.
5.2 Confidentiality. All documents, data compilations, reports, computer programs, photographs, and any other work provided to or produced by the Contractor and marked “Confidential” shall be kept confidential by the Client unless written permission is granted by Contractor for its release.
5.3 Compliance with Laws. The Contractor shall keep informed of and comply with all applicable federal, state and local laws and regulations in the performance of this Agreement.
5.4 Entirety of Agreement. This Agreement and its attachments, if any, represent the entire and integrated Agreement between the Parties and supersedes all prior negotiations, representations, and agreements, whether written or oral.
5.5 Ethics. The Contractor shall keep informed of and comply with all ethical standards governing the Contractor’s profession.
5.6 Force Majeure. Neither party shall be liable for failure to perform under this Agreement if such failure to perform arises out of causes beyond the control and without the fault or negligence of the nonperforming party. This provision shall become effective only if the party failing to perform immediately notifies the other party of the extent and nature of the problem, limits delay in performance to that required by the event, and takes all reasonable steps to minimize delays.
5.7 Indemnification. The Contractor shall indemnify, defend and hold harmless the Client and its agents, employees, successors and assigns from all claims, lawsuits, and liabilities arising out of the Contractor’s performance (or failure to perform) under this Agreement. 226
24 5.8 Independent Contractor. The Contractor is an independent contractor, and not an employee of the Client, under this Agreement. The Contractor is not authorized to incur any obligation on behalf of the Client.
5.9 Ownership of Work Product. All work product, including but not limited to all documents, reports, records, materials and data resulting from performance of this Agreement and produced for the Client’s exclusive use shall become the property of the Client upon completion of this Agreement. The Client agrees that it shall not alter, transform, or make derivative works of the product for the distribution or sale to any third-party. Any materials bearing the name or that of any specific retailer, developer, or other entity and/or not otherwise designated as being produced for the exclusive use of the Client shall not be considered as being produced for the exclusive use of the Client and shall remain the property of the Contractor.
5.10 Third-Party Beneficiary Rights. The Parties do not intend to create in any other person the status of third-party beneficiary, and this Agreement shall not be construed to create such status.
The rights and obligations in this Agreement operate only between the Parties and inure solely to the benefit of the Parties. The Parties intend and expressly agree that only the Parties have any right to enforce this Agreement, to any remedy arising out of a party’s performance or failure to perform any term or condition of this Agreement, or to bring an action for the breach of this Agreement.
5.11 Time is of the Essence. Time is of the essence in all provisions of this Agreement.
5.12 Waiver. The waiver of any breach of any term or condition in this Agreement shall not be deemed a waiver of any prior or subsequent breach.
5.13 Severability. If any part of this Agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
227
25 IN WITNESS WHEREOF, this Agreement has been agreed to and duly executed by the authorized representatives of the parties hereto as of the Effective Date.
NaviRetail Inc.
Per: ___________________________________ Date: _______________________________ Casey Kidd, CEO
– AND –
City of Orange
Per: ___________________________________ Date: _______________________________ Aaron Schulze, Economic Development Manager
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Agenda Item
City Council
Item #: 3.6. 3/12/2024 File #: 24-0135
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Amy Harpster, Interim Library Services Director
1. SUBJECT
Appropriation of $12,758 in designated grant funding received from the California Library Association and California State Library.
2. SUMMARY
Grant funds from the California Library Association and California State Library will be used to enhance and expand the Library’s programming and resources.
3. RECOMMENDED ACTION
1. Accept into the City’s revenue budget $12,758 in grant funds from California Library Association and California State Library to:
100.2001.45495.30121 Other Grant Revenue Lunch at the Library
2. Authorize the appropriation of $12,758 to:
100.2016.53340.30121 Craft Supplies Lunch at the Library
4. FISCAL IMPACT
There is no direct fiscal impact to the City. The additional revenue received from the California Library Association and California State Library will fund the expense for this program.
5. STRATEGIC PLAN GOALS
Goal 3: Enhance and promote quality of life in the community e: Develop and strengthen collaborative partnerships to enhance and promote quality of life programs, projects, and services.
6. DISCUSSION AND BACKGROUND
The Orange Public Library has been awarded a $12,758 Lunch at the Library Grant for Fiscal Year 2023-2024 (FY24). The California Library Association and California State Library have generously provided support to our Library to ensure children’sbodies and minds are well-fed this summer. This program is made possible through the dedication of trained Library staff and by a collaboration with Orange Unified School District, which also distributes food at lunchtime to other locations around the community. For many children in low-income communities, the stability and nutrition offered by the lunches they get at school ends with summer vacation. Summer meal programs like Lunch at the City of Orange Printed on 3/7/2024Page 1 of 2
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lunches they get at school ends with summer vacation. Summer meal programs like Lunch at the Library help combat childhood hunger and obesity by providing, free healthy meals to children in low- income neighborhoods while connecting them with library resources and programming. This summer, children visiting El Modena Branch Library at lunchtime will receive a lunch, crafts, free books, and a Summer Reading Log to track their reading. They will also participate in Farm To Table programs and activities provided by Discovery Cube Orange County. Grant monies will also fund paid interns to assist staff with coordination and oversight of the program. Last year, the Library served 1,118 meals to children, an 18% increase over the previous year; families who participated in Lunch at the Library collectively experienced $4,393.74 in food savings. All funds must be spent or encumbered by the end of July 2024.
7. ATTACHMENTS
· Lunch at the Library Grant Award Letter
· Lunch at the Library Grant Claim Form
City of Orange Printed on 3/7/2024Page 2 of 2
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Agenda Item
City Council
Item #: 3.6. 3/12/2024 File #: 24-0135
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Amy Harpster, Interim Library Services Director
1. SUBJECT
Appropriation of $12,758 in designated grant funding received from the California Library Association and California State Library.
2. SUMMARY
Grant funds from the California Library Association and California State Library will be used to enhance and expand the Library’s programming and resources.
3. RECOMMENDED ACTION
1. Accept into the City’s revenue budget $12,758 in grant funds from California Library Association and California State Library to:
100.2001.45495.30121 Other Grant Revenue Lunch at the Library
2. Authorize the appropriation of $12,758 to:
100.2016.53340.30121 Craft Supplies Lunch at the Library
4. FISCAL IMPACT
There is no direct fiscal impact to the City. The additional revenue received from the California Library Association and California State Library will fund the expense for this program.
5. STRATEGIC PLAN GOALS
Goal 3: Enhance and promote quality of life in the community e: Develop and strengthen collaborative partnerships to enhance and promote quality of life programs, projects, and services.
6. DISCUSSION AND BACKGROUND
The Orange Public Library has been awarded a $12,758 Lunch at the Library Grant for Fiscal Year 2023-2024 (FY24). The California Library Association and California State Library have generously provided support to our Library to ensure children’sbodies and minds are well-fed this summer. This program is made possible through the dedication of trained Library staff and by a collaboration with Orange Unified School District, which also distributes food at lunchtime to other locations around the community. For many children in low-income communities, the stability and nutrition offered by the lunches they get at school ends with summer vacation. Summer meal programs like Lunch at the City of Orange Printed on 3/7/2024Page 1 of 2
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lunches they get at school ends with summer vacation. Summer meal programs like Lunch at the Library help combat childhood hunger and obesity by providing, free healthy meals to children in low- income neighborhoods while connecting them with library resources and programming. This summer, children visiting El Modena Branch Library at lunchtime will receive a lunch, crafts, free books, and a Summer Reading Log to track their reading. They will also participate in Farm To Table programs and activities provided by Discovery Cube Orange County. Grant monies will also fund paid interns to assist staff with coordination and oversight of the program. Last year, the Library served 1,118 meals to children, an 18% increase over the previous year; families who participated in Lunch at the Library collectively experienced $4,393.74 in food savings. All funds must be spent or encumbered by the end of July 2024.
7. ATTACHMENTS
· Lunch at the Library Grant Award Letter
· Lunch at the Library Grant Claim Form
City of Orange Printed on 3/7/2024Page 2 of 2
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Library – Courts Building 916-323-9759
P.O. Box 942837 [email protected]
Sacramento, CA 94237-0001 www.library.ca.gov
January 23, 2024
Amy Harpster
Orange Public Library
407 E Chapman Ave
Orange, CA, 92866
Subject: Lunch at the Library Summer 2024
Dear Ms. Amy Harpster:
This letter confirms the California State Library’s award of $12,758 to the Orange Public Library for Lunch at the Library Summer 2024.
The Lunch at the Library program makes it possible for public libraries to:
• Provide free summer meals and programming at library sites, • Take pop-up libraries to other community-based meal sites, • Connect children, teens, and families to locally sourced, sustainable food and provide hands-on food education activities,
• Create volunteer opportunities for teens, and
• Implement innovative solutions to connect more families with nutritious meals during the summer.
Thank you for being a part of this important work.
Orange Public Library will receive $12,758 of the award upon execution and approval of the grant agreement, certification, and claim forms. The remaining funding (if applicable) will be made available according to the payment schedule and upon the awardee’s completion of the requirements listed in the Grant Agreement and Certification of Compliance document included with this award packet.
Hard copies of this correspondence will not follow. Therefore, please keep this correspondence for your files and consider these award materials your original documents.
DocuSign Envelope ID: D32B71C9-DAD9-4256-A49B-EC97A38CA354 233693
2023 Lunch at the Library
LATL23-44A
Library – Courts Building 916-323-9759
P.O. Box 942837 [email protected]
Sacramento, CA 94237-0001 www.library.ca.gov
This grant is governed by the attached Grant Agreement and Certification of Compliance, which includes the project period, reporting requirements, payment schedule, and the proposal outlining the project plan and budget. Within the DocuSign system, please sign the claim and certification forms included in the award packet using the DocuSign system. Should you have any questions regarding using DocuSign please get in touch with your grant monitor.
There are two people assigned to your project. The first is your Grant Monitor.
Contact them regarding compliance and reporting. The Grant Monitor assigned to your project is Lisa Lindsay. Contact Lisa via email at [email protected].
You are also assigned a Library Programs Consultant for ongoing programmatic support. The Library Programs Consultant assigned to your project is Kaela Villalobos.
Contact Kaela via email at [email protected].
Please stay in touch with your Grant Monitor and Library Programs Consultant throughout the award period. Read the enclosed award packet thoroughly and contact your Grant Monitor if you have any questions.
Best wishes for a successful project.
Respectfully yours,
Greg Lucas
California State Librarian
Enclosures
CC: Gina Iwata
Yesenia Castellon
DocuSign Envelope ID: D32B71C9-DAD9-4256-A49B-EC97A38CA354 2/2/2024
234694
THE BASICS – YOUR GRANT AWARD
The following provides all the basic information about your grant and managing your grant.
Award #: LATL23-44A
Library/Organization: Orange Public Library
Project Title: Lunch at the Library Summer 2024
Award Amount: $12,758
APPROVED BUDGET CORE PROGRAM
Salaries/Wages/Benefits $4,480
Consultant Fees $0
Travel $168
Supplies/Materials $4,370
Equipment ($5,000 or more per unit) $0
Services (contracted) $3,740
Project Total $12,758
Indirect Cost $0
APPROVED BUDGET INNOVATION
Salaries/Wages/Benefits $0
Consultant Fees $0
Travel $0
Supplies/Materials $0
Equipment ($5,000 or more per unit) $0
Services (contracted) $0
Project Total $0
Indirect Cost $0
APPROVED BUDGET TOTAL
Grant Total $12,758
Payment Schedule IN FULL
Start Date: 2/1/2024
End Date: 1/31/2025
Please understand that it can take six to eight weeks to receive a fully executed claim form with no errors before grant funds are delivered. Therefore, if you have not received your payment after eight weeks, please contact your grant monitor.
REPORTING
As outlined in the grant terms and conditions, Jurisdiction is required to provide two financial and narrative reports (first reports due 6/20/2024; second reports due 10/17/2024; final reports and detailed expenditures due 2/20/2025); and updates upon request. In addition, the LATL Annual Outputs Survey (reporting on all outputs thus far) must be submitted by 9/19/2024. Required reports will be available on the State Library’s Lunch at the Library website under Evaluation.
DocuSign Envelope ID: D32B71C9-DAD9-4256-A49B-EC97A38CA354 235695
2023 Lunch at the Library
LATL23-44A
Library – Courts Building 916-323-9759
P.O. Box 942837 [email protected]
Sacramento, CA 94237-0001 www.library.ca.gov
PAYMENTS
Please note this clarification regarding payments. Grant payments will be made based on the payment schedule laid out in the Grant Term and Award Documentation. Ten percent (10%) of the full grant award is withheld until the end of the project period. It is payable only if the grant recipient fulfills all project reporting requirements and expends all funds, or returns all unspent grant funds, by the time specified in the grant terms and conditions.
CONTACT
We want your project to be successful. Please work with the grant monitor and library programs consultant in implementing your project:
Grant
Monitor
Lisa Lindsay Library Programs
Consultant
Kaela Villalobos
Phone 916.603.6708 Phone 279.399.8977
Email [email protected] Email [email protected]
DocuSign Envelope ID: D32B71C9-DAD9-4256-A49B-EC97A38CA354 236696
LUNCH AT THE LIBRARY PROGRAM
FINANCIAL CLAIM
1st PAYMENT
CERTIFICATION
I hereby certify under penalty of perjury: that I am the duly authorized representative of the claimant herein; that this claim is in all respects true, correct and in accordance with law and the terms of the agreement; and that payment has not previously been received for the amount claimed herein.
By
(Signature of the Authorized Representative)
(Print Name) (Title)
*Legal payee name must match the payee’s federal tax return. Warrant will be made payable to payee name. Payee discrepancies in name and/or address may cause delay in payment. If you need to change payee name and/or address, please contact Fiscal Services at [email protected].
State of California, State Library Fiscal Office
ENY: 2023 ITEM NO: 6120-140-0001, Chapter 12, Statutes of 2023 PURCHASING AUTHORITY NUMBER: CSL-6120 REPORTING STRUCTURE: 61202000 COA: 5432000 PROGRAM #: 5312
FAIN: N/A
By Date
(State Library Representative)
Grant Award #: LATL23-44A Date:
Invoice #:
LATL23-44A-01 PO #:
7240
Payee Name: City of Orange
(Legal name of authorized agency to receive, disburse and account for funds*) Complete Address:
Street Address, City, State, Zip Code (Warrant will be mailed to this address) Amount Claimed: $12,758 Type of Payment:
(Payable Upon Execution of Agreement) ☐ PROGRESS
Grantee Name: Orange Public Library ☐ FINAL (Name on Award Letter and Agreement) ☒ IN FULL
Project Title: Lunch at the Library Summer 2024 ☐ AUGMENT For Period From: upon execution to end of grant period
DocuSign Envelope ID: D32B71C9-DAD9-4256-A49B-EC97A38CA354 Acting Library Director
Amy Z. Harpster
2/5/2024
407 E. Chapman Ave., Orange, CA 92866
2/6/2024
237692
Agenda Item
City Council
Item #: 3.7. 3/12/2024 File #: 24-0095
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Christopher Cash, Public Works Department
1. SUBJECT
Award of Contract to R. J. Noble Company for Community Development Block Grant Fiscal Year 2023-2024 Grand Street Neighborhood Street Rehabilitation Project; Bid No. 23-24.26.
2. SUMMARY
Bids for the Community Development Block Grant Fiscal Year 2023-2024 Grand Street Neighborhood Street Rehabilitation Project (SP-4264) were received and opened on February 1, 2024. Four bidders responded to the notice inviting bids. The apparent low bidder is, R. J. Noble Company of Orange, CA in the amount of $295,782.
3. RECOMMENDED ACTION
1. Authorize the Amendment to the Memorandum of Understanding to increase the 2023-2024 Street Rehabilitation Project by $56,400, for a total not-to-exceed amount of $338,790; and authorize the City Manager or his designee to execute the amendment on behalf of the City.
2. Authorize the Amendment to the 2023-2024 Annual Action Plan to increase the allocation to the 2023-2024 Street Rehabilitation Project by $56,400 to a total allocation of $338,790 and submit the Amendment to the Department of Housing and Urban Development.
3. Approve the contract with R. J. Noble Company in the total amount of $325,360, representing an original bid amount of $295,782, plus a 10% contingency of $29,578, for Community Development Block Grant Fiscal Year 2023-2024 Grand Street Neighborhood Street Rehabilitation Project; and authorize the Mayor and City Clerk to execute on behalf of the City.
4. Authorize the following budget transfer:
From: 310.9645.56582.20500 - CDBG Sycamore and Palmyra Neighborhoods Street Rehabilitation $56,400
To: 310.9645.56582.30220 - CDBG Neighborhood Street Rehabilitation $56,400
4. FISCAL IMPACT
The expense for this contract is $325,360 and will be funded through:
310.9645.56582.30220 - CDBG - Neighborhood Street Rehabilitation $286,610 500.5032.56100.20374 - Capital Projects - Street Light Pole Replacement $38,750 City of Orange Printed on 3/7/2024Page 1 of 3
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Total $325,360
5. STRATEGIC PLAN GOALS
Goal 1: Provide for a safe community
b: Provide and maintain infrastructure necessary to ensure the safety of the public.
Goal 4: Provide outstanding public service
b: Provide facilities and services to meet customer expectations.
6. DISCUSSION AND BACKGROUND
The Federal Community Development Block Grant Program (CDBG) provides grant funds to enable eligible localities to construct public improvements in low and moderate income areas within their jurisdiction. The proposed street improvements project was approved through the 2023-2024 Annual Action Plan process on May 9, 2023.
The scope of the project mainly includes the rehabilitation of pavement on Grand Street from Collins Avenue to Wilson Avenue.
The City Council previously approved an advertisement for bids on November 28, 2023. The bid solicitation was advertised on January 11, 2024, for a period of three weeks and bids were opened on February 1, 2024. Four bids were received as follows:
1. R. J. Noble Company, Orange $295,782
2. All America Asphalt, Corona $326,125
3. Hardy & Harper, Inc., Lake Forest $333,000
4. PALP Inc., dba Excel Paving Company, Long Beach $399,445 The low bid is about 28% higher than the engineer’sestimate. This may be due to the increasing costs of construction and materials and federal funding stipulations requiring the purchase of domestic construction materials over imported. Staff checked the references and qualifications for R.
J. Noble Company and found them to be acceptable, with adequate years of experience in completing contracts of similar nature to this project. Therefore, staff recommends that R. J. Noble Company be awarded the contract in the total amount of $325,360, representing an original amount of $295,782, plus a 10% contingency of $29,578 for the CDBG FY 2023-2024 Grand Street Neighborhood Street Rehabilitation Project.
Construction is scheduled to begin in April 2024 and is expected to be completed within 30 calendar days.
Funding requested for the project includes an estimated $18,070 for staff costs incurred in the administration of the project.
Annual Action Plan/Citizen Participation Plan
The city’sCitizen Participation Plan (CPP) provides a guide to ensure citizen and interested party participation in the development of the City’sAnnual Action Plan. The Annual Action Plan outlines the City’splans for the use of CDBG funding received in a specific year. Per the CPP, an increase of over 20% of the original allocation to an approved project requires a substantial amendment to the Annual Action Plan in which the project was approved and would require a 30-day public review for comment and public hearing at City Council. The proposed increase of $56,400 to the CDBG FY 2023-2024 Grand Street Neighborhood Street Rehabilitation Project does not meet the criteria for a substantial amendment to the 2023-2024 Annual Action Plan as it is below 20% (or $56,478) of the original allocation. The amendment, therefore, requires only City Council approval to be submitted and City of Orange Printed on 3/7/2024Page 2 of 3
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allocation. The amendment, therefore, requires only City Council approval to be submitted and accepted by the U.S. Department of Housing and Urban Development (HUD).
7. ATTACHMENTS
· Attachment 1 Contract with R. J. Noble Company
· Attachment 2 Bid Abstract
· Attachment 3 Amendment to 2023-2024 Annual Action Plan City of Orange Printed on 3/7/2024Page 3 of 3
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Agenda Item
City Council
Item #: 3.7. 3/12/2024 File #: 24-0095
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Christopher Cash, Public Works Department
1. SUBJECT
Award of Contract to R. J. Noble Company for Community Development Block Grant Fiscal Year 2023-2024 Grand Street Neighborhood Street Rehabilitation Project; Bid No. 23-24.26.
2. SUMMARY
Bids for the Community Development Block Grant Fiscal Year 2023-2024 Grand Street Neighborhood Street Rehabilitation Project (SP-4264) were received and opened on February 1, 2024. Four bidders responded to the notice inviting bids. The apparent low bidder is, R. J. Noble Company of Orange, CA in the amount of $295,782.
3. RECOMMENDED ACTION
1. Authorize the Amendment to the Memorandum of Understanding to increase the 2023-2024 Street Rehabilitation Project by $56,400, for a total not-to-exceed amount of $338,790; and authorize the City Manager or his designee to execute the amendment on behalf of the City.
2. Authorize the Amendment to the 2023-2024 Annual Action Plan to increase the allocation to the 2023-2024 Street Rehabilitation Project by $56,400 to a total allocation of $338,790 and submit the Amendment to the Department of Housing and Urban Development.
3. Approve the contract with R. J. Noble Company in the total amount of $325,360, representing an original bid amount of $295,782, plus a 10% contingency of $29,578, for Community Development Block Grant Fiscal Year 2023-2024 Grand Street Neighborhood Street Rehabilitation Project; and authorize the Mayor and City Clerk to execute on behalf of the City.
4. Authorize the following budget transfer:
From: 310.9645.56582.20500 - CDBG Sycamore and Palmyra Neighborhoods Street Rehabilitation $56,400
To: 310.9645.56582.30220 - CDBG Neighborhood Street Rehabilitation $56,400
4. FISCAL IMPACT
The expense for this contract is $325,360 and will be funded through:
310.9645.56582.30220 - CDBG - Neighborhood Street Rehabilitation $286,610 500.5032.56100.20374 - Capital Projects - Street Light Pole Replacement $38,750 City of Orange Printed on 3/7/2024Page 1 of 3
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Total $325,360
5. STRATEGIC PLAN GOALS
Goal 1: Provide for a safe community
b: Provide and maintain infrastructure necessary to ensure the safety of the public.
Goal 4: Provide outstanding public service
b: Provide facilities and services to meet customer expectations.
6. DISCUSSION AND BACKGROUND
The Federal Community Development Block Grant Program (CDBG) provides grant funds to enable eligible localities to construct public improvements in low and moderate income areas within their jurisdiction. The proposed street improvements project was approved through the 2023-2024 Annual Action Plan process on May 9, 2023.
The scope of the project mainly includes the rehabilitation of pavement on Grand Street from Collins Avenue to Wilson Avenue.
The City Council previously approved an advertisement for bids on November 28, 2023. The bid solicitation was advertised on January 11, 2024, for a period of three weeks and bids were opened on February 1, 2024. Four bids were received as follows:
1. R. J. Noble Company, Orange $295,782
2. All America Asphalt, Corona $326,125
3. Hardy & Harper, Inc., Lake Forest $333,000
4. PALP Inc., dba Excel Paving Company, Long Beach $399,445 The low bid is about 28% higher than the engineer’sestimate. This may be due to the increasing costs of construction and materials and federal funding stipulations requiring the purchase of domestic construction materials over imported. Staff checked the references and qualifications for R.
J. Noble Company and found them to be acceptable, with adequate years of experience in completing contracts of similar nature to this project. Therefore, staff recommends that R. J. Noble Company be awarded the contract in the total amount of $325,360, representing an original amount of $295,782, plus a 10% contingency of $29,578 for the CDBG FY 2023-2024 Grand Street Neighborhood Street Rehabilitation Project.
Construction is scheduled to begin in April 2024 and is expected to be completed within 30 calendar days.
Funding requested for the project includes an estimated $18,070 for staff costs incurred in the administration of the project.
Annual Action Plan/Citizen Participation Plan
The city’sCitizen Participation Plan (CPP) provides a guide to ensure citizen and interested party participation in the development of the City’sAnnual Action Plan. The Annual Action Plan outlines the City’splans for the use of CDBG funding received in a specific year. Per the CPP, an increase of over 20% of the original allocation to an approved project requires a substantial amendment to the Annual Action Plan in which the project was approved and would require a 30-day public review for comment and public hearing at City Council. The proposed increase of $56,400 to the CDBG FY 2023-2024 Grand Street Neighborhood Street Rehabilitation Project does not meet the criteria for a substantial amendment to the 2023-2024 Annual Action Plan as it is below 20% (or $56,478) of the original allocation. The amendment, therefore, requires only City Council approval to be submitted and City of Orange Printed on 3/7/2024Page 2 of 3
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allocation. The amendment, therefore, requires only City Council approval to be submitted and accepted by the U.S. Department of Housing and Urban Development (HUD).
7. ATTACHMENTS
· Attachment 1 Contract with R. J. Noble Company
· Attachment 2 Bid Abstract
· Attachment 3 Amendment to 2023-2024 Annual Action Plan City of Orange Printed on 3/7/2024Page 3 of 3
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CONTRACT
[CDBG FY 2023-24 Grand Street Neighborhood Street Rehabilitation (Bid No. 23-24.26)]
THIS CONTRACT (the “Contract”) is made and ente red into as of ___ ___________, 2024 (“Effective Date”) by and between the CITY OF ORANGE, a municipal corporation (“City”), and R. J. NOBLE COMPANY , a California corporation (“Contractor”), who agree as follows.
ARTICLE 1
Work Performed
a. For and in consideration of the payments and agreements hereinafter mentioned, to be made and performed by City, and under the conditions expressed in the two (2) bonds presented to City with this Contract and incorporated herein by this reference, Contractor hereby agrees to and shall do all the work and furnish all the labor, materials, tools and equipment, except such as are mentioned in the specifications to be furnished by City to Contractor, necessary to complete in good workmanship and substantial manner the work (the “Work”) described in:
(1) The Construction Plans for CDBG FY 2023-24 Grand Street Neighborhood Street Rehabilitation (Drawing SP-4264) prepared for City by Martin Varona, and consisting of one sheet, inclusive (the “Plans”);
(2) The latest edition of the "City of Orange Standard Plans and Specifications" (the “Orange Book”) with the term "Engineer," as used in the Orange Book and in this Contract, to specifically include the City Engineer (or designee);
(3) The "Standard Specifications for Public Works Construction ” (the “Greenbook”), and all amendments thereto, except the definition of “Subcontractor” in Section 1.2 (General – Terms and Definitions) of Part 1 (General Provisions) of the Greenbook, which is hereby amended in its entirety to read as follows: “Subcontractor – An individual, firm, or corporation having a direct contract with the Contractor for the performance of a part of the Work;”
(4) The Compliance Documents attached as Attachment No. 1 and incorporated herein by this reference; and
(5) The Labor Relations Forms attached as Attachment No. 2 and incorporated herein by this reference; and
(6) The “City of Orange Standard Special Provisions;”
(7) The Standard Plans; and
(8) The Federal Special Provisions and Requirements attached as Attachment No. 5 and incorporated herein by this reference; and
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2 (9) The Federal Prevailing Wage Rates attached as Attachment No. 6 and incorporated herein by this reference; and
(10) Contractor’s Bid Proposal , which is on file with City’s Department of Public Works.
b. Contractor acknowledges that it has received the Plans from City and that a complete copy of the Plans are in its possession and are hereby specifically referred to and by such reference made a part hereof. The Orange Book, Greenbook and City of Orange Standard Special Provisions and Standard Plans are on file with City’s Public Works Director and are hereby specifically referred to and by such reference made a part hereof. Contractor hereby acknowledges that it has read, reviewed and understands the Plans, the Orange Book, the Greenbook, the Special Provisions, the Standard Plans, and the Encroachment Permit as they relate to the Work, all of which documents shall be referred to herein collectively as the “Plans and Specifications.”
c. Contractor acknowledges the provisions of Chapter 8.28 of the Orange Municipal Code which requires, among other things, that Contractor utilize City’s exclusive solid waste hauler for the rental of bins for trash and debris removal and imposes mandatory recycling requirements for self-hauled construction and demolition waste. The terms and conditions set forth in this Contract shall control over any terms and conditions in the Plans and Specifications to the contrary.
d. The Work shall be performed in conformity with the Plans and Specifications and the Bid Proposal and all applicable laws, including any and all applicable federal and state labor laws and standards and applicable prevailing wage requirements and any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment.
e. Unless and until otherwise notified in writing by City’s Public Works Director, City’s Principal Civil Engineer, Randy Nguyen (“Authorized City Representative”), shall be the person to whom Contractor will report for the performance of the Work hereunder. It is understood that Contractor’s performance hereunder shall be under the direction and supervision of the Authorized City Representative or such other person as City’s Public Works Director may designate from time to time, that Contractor shall coordinate the Work hereunder with the Authorized City Representative to the extent required by the Authorized City Representative, and that all performances required hereunder by Contractor shall be performed to the satisfaction of the Authorized City Representative or City’s Public Works Director.
f. It is expressly agreed by and between the parties hereto that should there be any conflict between the terms of this instrument and Contractor’s Bid Proposal, then this instrument shall control and nothing herein shall be considered as an acceptance of the said terms of said Bid Proposal conflicting herewith.
g. Contractor agrees that it has an obligation to reset all permanent survey markers as stated in the Orange Book, Part 4, Section 400-2, “Permanent Survey Markers ,” and obtain the approval for pre- and post-construction centerline tie sheets and Corner Records from the County of Orange and deliver said approved documents to City as soon as they are received. This 245
3 obligation extends to any of its subcontractors that have performed work in this regard. This subsection survives completion of the Work, the Notice of Completion, and final payment and shall be an enforceable obligation until fulfilled.
ARTICLE 2
Commencement of Work
Contractor shall commence the Work provided for in this Contract within fifteen (15) days of the date of the issuance by City of a Notice to Proceed and diligently prosecute completion of the Work within THIRTY (30) calendar days from such date, unless legal extension is granted in accordance with the terms set forth in the Greenbook. Time is of the essence in this Contract.
Contractor shall do all things necessary and incidental to the prosecution of Contractor's Work.
ARTICLE 3
Compensation
a. Contractor agrees to receive and accept an amount not to exceed TWO HUNDRED NINETY-FIVE THOUSAND SEVEN HUNDRED EIGHTY -ONE DOLLARS and 50/100 ($295,781.50), unless said amount is amended by Contract Change Order approved by the City as compensation for furnishing all materials and doing all the Work contemplated and embraced in this Contract. Said compensation covers (1) all loss or damage arising out of the nature of the Work, from the acts of the elements; (2) any unforeseen difficulties or obstructions which may arise or be encountered in the prosecution of the Work until its acceptance by City, other than as provided below ; (3) all risks of every description connected with the Work; (4) all expenses incurred by or in consequence of the suspension or discontinuance of the Work; and (5) well and faithfully completing the Work, and for the whole thereof, in the manner and according to the Plans and Specifications, and requirements of the Authorized City Representative under them.
Retention amounts shall be withheld from progress payments as required by law unless Contractor provides securities in lieu of retention.
b. In addition to the scheduled Work to be performed by the Contractor, the parties recognize that additional, unforeseen work and services may be required by the Authorized City Representative. In anticipation of such contingencies, the sum of TWENTY-NINE THOUSAND FIVE HUNDRED SEVENTY-EIGHT DOLLARS and 00/100 ($29,578.00) has been added to the total compensation of this Contract. The Authorized City Representative may approve the additional work and the actual costs incurred by the Contractor in performance of additional work or services in accordance with such amount as the Authorized City Representative and the Contractor may agree upon in advance. Said additional work or services and the amount of compensation therefor, up to the amount of the authorized contingency, shall be memorialized in the form of a Contract Amendment approved by the City Manager on a form acceptable to the City Attorney. The Contractor agrees to perform only that work or those services that are specifically requested by the Authorized City Representative. Any and all additional work and services performed under this Contract shall be completed in such sequence as to assure their completion as expeditiously as is consistent with professional skill and care in accordance with a cost estimate or proposal submitted to and approved by the Authorized City Representative prior to the commencement of such Work or services.
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4 c. The total amount of compensation under this Contract, including contingencies, shall not exceed THREE HUNDRED TWENTY-FIVE THOUSAND THREE HUNDRED FIFTY-NINE DOLLARS and 50/100 ($325,359.50).
ARTICLE 4
Licenses
Contractor represents that it and any subcontractors it may engage, possess any and all licenses which are required under state or federal law to perform the Work contemplated by this Contract and that Contractor and subcontractors shall maintain all appropriate licenses, including a City of Orange business license, at its cost, during the performance of this Contract.
ARTICLE 5
Guarantees
a. Contractor guarantees the construction and installation of all Work included in the Plans and Specifications for which Contractor has been awarded this Contract.
b. Should any of the materials or equipment installed pursuant to this Contract prove defective or should the Work as a whole prove defective, due to faulty equipment, workmanship, materials furnished or methods of installations, or should said Work or any p art thereof fail to function properly, as designed, due to any of the above causes within twelve (12) months after the date on which said Work is accepted by City, Contractor shall make repairs and furnish such materials and equipment as are necessary to be furnished and installed within fifteen (15) calendar days after the receipt of a demand from City.
c. Said Work will be deemed defective within the meaning of this guarantee in the event that it fails to function as originally intended either by the Plans and Specifications of this Contract or by the manufacturer(s) of the equipment incorporated into the Work.
d. In the event repairs are not made within fifteen (15) calendar days after Contractor's receipt of a demand from City, City shall have the unqualified option to make any needed repairs or replacements itself or by any other contractor. Contractor shall re imburse City, upon demand, for all expenses incurred in restoring said Work to the condition contemplated in this Contract, including the cost of any equipment or materials replaced.
e. It is understood that emergency repairs may, by necessity, be made by City.
Therefore, when defective equipment, materials or workmanship result in emergency repairs by City, Contractor shall reimburse City, upon demand, for all expenses incurred. Emergency repairs will be deemed as those repairs det ermined by City’s Director of Public Works to be necessary due to an immediate detriment to the health, safety, welfare or convenience of the residents of City.
ARTICLE 6
Water Quality
a. The Santa Ana Regional Water Quality Control Board (“RWQCB”) has issued National Pollutant Discharge Elimination System (“NPDES”) Permit No. R8 -2009-0030 (the 247
5 “Permit”), which governs storm water and non -storm water discharges resulting from municipal activities performed by City or its contractors. In order to comply with the Permit requirements, the County of Orange has prepared a Drainage Area Management Pla n (“DAMP”), containing Model Maintenance Procedures with Best Management Practices (“BMPs”) that City and its contractors must adhere to. The Model Maintenance Procedures contain pollution prevention and source control techniques to minimize the impact of those activities upon dry -weather urban runoff, storm water runoff, and receiving water quality. Examples include: wash water from cleaning of sidewalks or parking lots must be collected and disposed of in the sewer or landscaped areas.
b. The Permit, the DAMP and the Model Maintenance Procedures are on file in the office of City’s Director of Public Works. Contractor hereby acknowledges that it has read, reviewed and understands the Permit, the DAMP and the Model Maintenance Procedures, as they relate to the Work and hereby shall perform the Work in conformance therewith.
ARTICLE 7
Independent Contractor; Contractor not Agent
a. At all times during the term of this Contract, Contractor shall be an independent contractor and not an employee of City. City shall have the right to control Contractor only insofar as the result of Contractor’s services rendered pursuant to this Contrac t. City shall not have the right to control the means by which Contractor accomplishes services rendered pursuant to this Contract. Contractor shall, at its sole cost and expense, furnish all facilities, materials and equipment which may be required f or furnishing services pursuant to this Contract. Contractor shall be solely responsible for, and shall indemnify, defend and save City harmless from all matters relating to the payment of its subcontractors, agents and employees, including compliance wit h social security, withholding and all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever. Contractor acknowledges that Contractor and any subcontractors, agents or employees employed by Contractor shall not, under any circumstances, be considered employees of City, and that they shall not be entitled to any of the benefits or rights afforded employees of City, including, but not limited to, sick leave, vacation leave, holiday pay, Public Employees Retirement System benefits, or health, life, dental, long -term disability or workers' compensation insurance benefits.
b. Except as City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor shall have no authority, express or implied, to bind City to any obligation whatsoever.
ARTICLE 8
Public Work; Prevailing Wage
a. The Work which is the subject of this Contract is a “public work,” as that term is defined in Section 1720 of the California Labor Code, for which prevailing wages must be paid.
To the extent Contractor’s employees will perform any work that falls within any of the classifications for which the Department of Labor Relations of the State of California promulgates prevailing wage determinations, Contractor hereby agrees that Contractor, and any subcontractor under it, shall pay not less than the specified prevailing rates of wages to all such workers . The 248
6 general prevailing wage determinations for crafts can be located on the website of the Department of Industrial Relations ( www.dir.ca.gov/DLSR). Additionally, to perform work under this Contract, Contractor must meet all State registration requirements and criteria, including project compliance monitoring.
b. Attached hereto as Attachment No. 1 and incorporated herein by this reference is a copy of the provisions of Sections 1725.5, 1771, 1771.1, 1771.4, 1775, 1776, 1777.5, 1813 and 1815 of the California Labor Code. Contractor hereby acknowledges that it has read, reviewed and understands those provisions of the Labor Code and shall prosecute and complete the Work under this Contract in strict compliance with all of those terms and provisions.
c. Contractor shall secure the payment of compensation to its employees in accordance with the provisions of Section 3700 of the California Labor Code. Accordingly, and as required by Section 1861 of the California Labor Code, Contractor hereby certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”
d. Contractor shall indemnify, protect, defend and hold harmless City and its officers, employees, contractors and agents, with counsel reasonably acceptable to City, from and against any and all loss, liability, damage, claim, cost, expense, and/or “increased costs” (including reasonable attorney’s fees, court and litigation costs, and fees of expert witnesses) which result or arise in any way from the noncompliance by Contractor of any applicable local, state and/or federal law, including, without limitat ion, any applicable federal and/or state labor laws (including, without limitation, the requirement to pay state prevailing wages). It is agreed by the parties that, in connection with the construction of the W ork which is the subject of this Contract, Contractor shall bear all risks of payment or non -payment of state prevailing wages. “Increased costs” as used in this paragraph shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be enacted, adopted or amended from time t o time. The foregoing indemnity shall survive termination of this Contract.
ARTICLE 9
Equal Employment Opportunity
During the performance of this Contract, Contractor agrees as follows:
a. Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law. Contractor shall ensure that applicants are employed and that employees are treated during employment, without regard to their race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law.
Such actions shall include, but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. Contractor shall post in 249
7 conspicuous places, available to employees and applicants for employment, a notice setting forth provisions of this non-discrimination clause.
b. Contractor shall, in all solicitations and advertisements for employees placed by, or on behalf of Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, men tal or physical disability, or any other basis prohibited by applicable law.
c. Contractor shall cause the foregoing paragraphs (a) and (b) to be inserted in all subcontracts for any Work covered by this Contract, provided that the foregoing provisions shall not apply to subcontracts for standard commercial supplies or raw materials.
ARTICLE 10
Conflicts of Interest
Contractor agrees that it shall not make, participate in the making, or in any way attempt to use its position as a contractor to influence any decision of City in which Contractor knows or has reason to know that Contractor, its officers, partners, or employees have a financial interest as defined in Section 87103 of the Government Code. Contractor further agrees that it shall not be eligible to work as the builder for any project for which the design work is part of this Contract.
ARTICLE 11
Indemnity
Contractor shall defend, indemnify and hold harmless City and its officers, officials, agents, and employees from and against:
a. Any and all claims, liabilities, losses, damages, penalties, costs or expenses (including reasonable attorneys' fees and court costs) which City may directly or indirectly sustain or suffer arising from or as a result of the death of any person or any accident, injury, loss or damage whatsoever caused to any person or the property of any person which shal l occur on or adjacent to the real property which is the subject of this Contract, or in connection with performance of this Contract which may be directly or indirectly caused by the acts or omissions of Contractor or its officers, employees, contractors or agents, or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release of a hazardous waste or substance. Contractor shall not be responsible for (and such indemnity shall not apply to) any willful misconduct, negligence or breach of this Contract by City or its officers, officials, agents, and employees. The foregoing indemnity shall survive termination of this Contract.
b. Any and all claims under workers’ compensation acts and other employee benefit acts with respect to Contractor’s employees or Contractor’s subcontractor’s employees arising out of Contractor’s Work under this Contract, including any and all claims under any law pertaining to Contractor’s status as an independent contractor.
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8 ARTICLE 12
Insurance
a. Contractor shall procure and maintain for the duration of this Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder and the results of that Work by Contractor, its agents, representatives, employees or subcontractors. Any umbrella liability insurance that is provided as part of the general or automobile liability minimums set forth below shall be maintained for the duration of the Contract.
b. Contractor shall maintain the following minimum amount of insurance: the greater of either the limits set forth in (1) through (4), below; or all of the insurance coverage and/or limits carried by or available to Contractor.
(1) General Liability $2,000,000 per occurrence for bodily injury, personal injury and property damage. If
Commercial General Liability insurance
or other form with 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 requi red
occurrence limit.
(2) Automobile Liability $1,000,000 per accident for bodily injury and property damage.
(3) Workers’ Compensation as required by the State of California.
(4) Employer’s Liability $1,000,000 per accident for bodily injury or disease.
c. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits which are applicable to a given loss shall be available to City. No representation is made that the minimum insurance requirements of this Contract are sufficient to cover the obligations of Contractor under this Contract.
d. Any deductibles or self -insured retentions must be declared to and approved by City. At the option of City, either: the insurer shall reduce or eliminate such deductibles or self - insured retentions with respect to City, its officers, officials, agents and employees; or Contractor shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
e. Each policy of general liability and automotive liability insurance shall contain, or be endorsed to contain, the following provisions:
(1) City, its officers, officials, agents, and employees are declared to be additional insureds under the terms of the policy, with respect to liability arising out of automobiles 251
9 owned, leased, hired or borrowed by or on behalf of Contractor (any auto), and with respect to liability arising out of Work or operations performed by or on behalf of Contractor, including materials, parts or equipment furnished in connection with such Work or operations. A policy endorsement to that effect shall be provided to City along with the certificate of insurance. In lieu of an endorsement, City will accept a copy of the policy(ies) which evidences that City is an additional insured as a contrac ting party. The minimum coverage required by Subsection 12.b, above, shall apply to City as an additional insured.
(2) For any claims related to this Contract, Contractor’s insurance coverage shall be primary insurance with respect to City, its officers, officials, agents and employees. Any insurance or self-insurance maintained by City, its officers, officials, agents and employees shall be excess of Contractor’s insurance and shall not contribute with it.
(3) Coverage shall not be canceled, except after thirty (30) days’ prior written notice has been provided to City.
f. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Article 12. The endorsements shall be on forms acceptable to City. All certificates and endorsements are to be received and approved by City before the Work commences. However, failure to do so shall not operate as a waiver of these insurance requirements. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications at any time.
g. All insurance procured and maintained by Contractor shall be issued by insurers admitted to conduct the pertinent line of insurance business in California and having a rating of Grade A or better and Class VII or better by the latest edition of Best Key Rating Guide.
h. Contractor shall immediately notify City if any required insurance lapses or is otherwise modified and cease performance of this Contract unless otherwise directed by City. In such a case, City may procure insurance or self-insure the risk and charge Contractor for such costs and any and all damages resulting therefrom by way of set-off from any sums owed Contractor.
i. Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide insurance, Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing insurance t o either Contractor or City with respect to the services of Contractor herein, a waiver of any right to subrogation which any such insurer may acquire against City by virtue of the payment of any loss under such insurance.
The Workers’ Compensation pol icy shall be endorsed with a waiver of subrogation in favor of City for all Work performed by Contractor, its employees, agents and subcontractors. Contractor shall obtain any other endorsement that may be necessary to effect this waiver of subrogation.
j. Contractor shall require and verify that all subcontractors maintain insurance meeting all of the requirements stated herein.
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10 ARTICLE 13
Termination
City, acting through its City Manager or designee, reserves the right to terminate this Contract for any reason by giving five (5) days’ written notice of intent to terminate to Contractor.
Upon receipt of notice, Contractor shall immediately cease work, unless the notice provides otherwise. Should City terminate this Contract, City shall pay Contractor for services satisfactorily provided and all allowable reimbursements incurred to the date of termination in compliance with this Contract, unless such te rmination shall be for cause, in which event City may withhold any disputed compensation. City shall not be liable for any claim of lost profits.
ARTICLE 14
Maintenance and Inspection of Records
In accordance with generally accepted accounting principles, Contractor and its subcontractors shall maintain reasonably full and complete books, documents, papers, accounting records and other information (collectively, the “records”) pertaining to the co sts of and completion of services performed under this Contract. During the term of this Contract and for a period of three (3) years after termination or completion of this Contract, City shall have the right to inspect and/or audit Contractor's records pertaining to the performance of this Contract at Contractor's office. Contractor shall make available all such records for inspection or audit at its offices during normal business hours and upon three (3) days’ notice from City, and copies thereof shall be furnished if requested.
ARTICLE 15
Compliance with Laws
a. Contractor shall be knowledgeable of and comply with all local, state and federal laws pertaining to the subject matter hereof or in any way regulating the activities undertaken by Contractor or any subcontractor hereunder.
b. Contractor represents and warrants that it:
(1) Has complied and shall at all times during the term of this Contract comply, in all respects, with all immigration laws, regulations, statutes, rules, codes, and orders, including, without limitation, the Immigration Reform and Control Act of 1986 (IRCA); and
(2) Has not and will not knowingly employ any individual to perform services under this Contract who is ineligible to work in the United States or under the terms of this Contract; and
(3) Has properly maintained, and shall at all times during the term of this Contract properly maintain, all related employment documentation records including, without limitation, the completion and maintenance of the Form I -9 for each of Contractor’s employees; and
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11 (4) Has responded, and shall at all times during the term of this Contract respond, in a timely fashion to any government inspection requests relating to immigration law compliance and/or Form I -9 compliance and/or worksite enforcement by the Department of Homeland Security, the Department of Labor, or the Social Security Administration.
c. Contractor shall require all subcontractors and/or subconsultants to make the same representations and warranties required by this Article 15 when hired to perform services under this Contract.
d. Contractor shall, upon request of City, provide a list of all employees working under this Contract and shall provide, to the reasonable satisfaction of City, verification that all such employees are eligible to work in the United States. All costs associ ated with such verification shall be borne by Contractor. Once such request has been made, Contractor may not change employees working under this Contract without written notice to City, accompanied by the verification required herein for such employees. Contractor shall require all subcontractors and/or sub-consultants to make the same verification when hired to perform services under this Contract.
e. If Contractor, or a subcontractor or subconsultant, knowingly employs an employee providing Work under this Contract who is not authorized to work in the United States, and/or fails to follow federal laws to determine the status of such employee , such shall constitute a material breach of this Contract and may be cause for immediate termination of this Contract by City.
f. Contractor shall indemnify and hold City, its officials and employees harmless for, of and from any loss, including but not limited to fines, penalties and corrective measures, City may sustain by reason of Contractor’s failure to comply with said laws, rules and regulati ons in connection with the performance of this Contract.
ARTICLE 16
Governing Law and Venue
This Contract shall be construed in accordance with and governed by the laws of the State of California and Contractor shall submit to the juri sdiction of California courts. Venue for any dispute arising under this Contract shall be in Orange County, California.
ARTICLE 17
Integration and Amendment
a. This Contract constitutes the entire agreement of the parties. No other agreement, oral or written, pertaining to the Work to be performed under this Contract shall be of any force or effect unless it is in writing and signed by both parties. Any Work performed which is inconsistent with or in violation of the provisions of this Contract shall not be compensated.
b. Amendments to this Contract must be in writing and signed by both parties. The City Manager is authorized to execute amendments to this Contract up to the amounts specified in Chapter 3.08 of the Orange Municipal Code.
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12 ARTICLE 18
Notice
Except as otherwise provided herein, all notices required under this Contract shall be in writing and delivered personally, by e-mail, or by first class mail, postage prepaid, to each party at the address listed below. Either party may change the notice address by notifying the other party in writing. Notices shall be deemed received upon receipt of same or within three (3) days of deposit in the U.S. Mail, whichever is earlier. Notices sent by e-mail shall be deemed received on the date of the e-mail transmission.
“CONTRACTOR” “CITY”
R.J. Noble Company City of Orange
15505 E. Lincoln Ave 300 E. Chapman Avenue
Orange, CA 92865 Orange, CA 92866-1591
Attn: Jacob Breedlove Attn: Randy Nguyen
Telephone: 909-330-1128 Telephone: 714-744-5531
E-Mail: [email protected] E-Mail: [email protected]
ARTICLE 19
Claim Resolution
City and Contractor agree that the claim resolution process applicable to any claim by Contractor in connection with the Work provided herein shall be subject to the procedures set forth in California Public Contract Code Section 9204, attached hereto as Attachment No. 2, and incorporated herein by this reference.
ARTICLE 20
Counterparts
This Contract may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures transmitted via facsimile and electronic mail shall have the same effect as original signatures.
[Remainder of page intentionally left blank; signatures on next page] 255
13 “CITY”
CONTRACT, BONDS AND INSURANCE
APPROVED BY:
Melissa M. Crosthwaite
Senior Assistant City Attorney
CITY OF ORANGE, a municipal corporation
By:
Daniel R. Slater
Mayor of the City of Orange
ATTEST:
Pamela Coleman, City Clerk
“CONTRACTOR”
R. J. NOBLE COMPANY, a California
corporation
[Note: Signature of Chairman of the By:
Board, President or Vice President is Printed Name:
required] Title:
[Note: Signature of Secretary, Assistant By:
Secretary, Chief Financial Officer or Printed Name:
Assistant Treasurer is also required] Title:
√
256
Attachment No. 1
ATTACHMENT NO. 1
CALIFORNIA LABOR CODE
SECTIONS 1725.5, 1771, 1771.1, 1771.4, 1775, 1776, 1777.5, 1813 and 1815
Section 1725.5. Registration of contractors; mandatory registration; qualifications and application; fees; exempt contractors
A contractor shall be registered pursuant to this section to be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any public work contract that is subject to the requirements of this chapter. For the purposes of this section, “contractor” includes a subcontractor as defined by Section 1722.1. (a) To qualify for registration under this section, a contractor shall do all of the following:
(1)(A) Register with the Department of Industrial Relations in the manner prescribed by the department and pay an initial nonrefundable application fee of four hundred dollars ($400) to qualify for registration under this section and an annual renewal fee on or before July 1 of each year thereafter. The annual renewal fee shall be in a uniform amount set by the Director of Industrial Relations, and the initial registration and renewal fees may be adjusted no more than annually by the director to support the costs specified in Section 1771.3. (B) Beginning June 1, 2019, a contractor may register or renew according to this subdivision in annual increments up to three years from the date of registration. Contractors who wish to do so will be required to prepay the applicable nonrefundable application or renewal fees to qualify for the number of years for which they wish to preregister.
(2) Provide evidence, disclosures, or releases as are necessary to establish all of the following:
(A) Workers' compensation coverage that meets the requirements of Division 4 (commencing with Section 3200) and includes sufficient coverage for any worker whom the contractor employs to perform work that is subject to prevailing wage requirements other than a contractor who is separately registered under this section.
Coverage may be evidenced by a current an d valid certificate of workers' compensation insurance or certification of self-insurance required under Section 7125 of the Business and Professions Code. (B) If applicable, the contractor is licensed in accordance with Chapter 9 (commencing with Section 7000) of the Business and Professions Code.
(C) The contractor does not have any delinquent liability to an employee or the state for any assessment of back wages or related damages, interest, fines, or penalties pursuant to any final judgment, order, or determination by a court or any federal, state, or local administrative agency, including a confirmed arbitration award. However, for purposes of this paragraph, the contractor shall not be disqualified for any judgment, order, or determination that is under appeal, provided that the contractor has secured the payment of any amount eventually found due through a bond or other appropriate means. (D) The contractor is not currently debarred under Section 1777.1 or under any other federal or state law providing for the debarment of contractors from public works. (E) The contractor has not bid on a public works contract, been listed in a bid proposal, or engaged in the performance of a contract for public works without being lawfully registered in accordance with this section, within the preceding 12 months or sinc e the effective date of the requirements set forth in subdivision (e), whichever is earlier. If a contractor is found to be in violation of the requirements of this paragraph, the period of disqualification shall be waived if both of the following are true:
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Attachment No. 1
(i) The contractor has not previously been found to be in violation of the requirements of this paragraph within the preceding 12 months.
(ii) The contractor pays an additional nonrefundable penalty registration fee of two thousand dollars ($2,000). (b) Fees received pursuant to this section shall be deposited in the State Public Works Enforcement Fund established by Section 1771.3 and shall be used only for the purposes specified in that section. (c) A contractor who fails to pay the renewal fee required under paragraph (1) of subdivision (a) on or before the expiration of any prior period of registration shall be prohibited from bidding on or engaging in the performance of any contract for public work until once again registered pursuant to this section. If the failure to pay the renewal fee was inadvertent, the contractor may renew its registration retroactively by paying an additional nonrefundable penalty renewal fee equal to the amount of the renewal fee within 90 days of the due date of the renewal fee.
(d) If, after a body awarding a contract accepts the contractor's bid or awards the contract, the work covered by the bid or contract is determined to be a public work to which Section 1771 applies, either as the result of a determination by the director pursuant to Section 1773.5 or a court decision, the requirements of this section shall not apply, subject to the following requirements:
(1) The body that awarded the contract failed, in the bid specification or in the contract documents, to identify as a public work that portion of the work that the determination or decision subsequently classifies as a public work.
(2) Within 20 days following service of notice on the awarding body of a determination by the Director of Industrial Relations pursuant to Section 1773.5 or a decision by a court that the contract was for public work as defined in this chapter, the contractor and any subcontractors are registered under this section or are replaced by a contractor or subcontractors who are registered under this section. (3) The requirements of this section shall apply prospectively only to any subsequent bid, bid proposal, contract, or work performed after the awarding body is served with notice of the determination or decision referred to in paragraph (2).
(e) The requirements of this section shall apply to any bid proposal submitted on or after March 1, 2015, to any contract for public work, as defined in this chapter, executed on or after April 1, 2015, and to any work performed under a contract for public work on or after January 1, 2018, regardless of when the contract for public work was executed.
(f) This section does not apply to work performed on a public works project of twenty -five thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.
Section 1771. Payment of general prevailing rate
Except for public works projects of one thousand dollars ($1,000) or less, not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work fixed as provided in this chapter, shall be paid to all workers employed on public works.
This section is applicable only to work performed under contract, and is not applicable to work carried out by a public agency with its own forces. This section is applicable to contracts let for maintenance work. 258
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Section 1771.1 . Registration as a contractor or subcontractor required prior to bid submission; exceptions; violations; penalties
(a) A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code , or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code , provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.
(b) Notice of the requirement described in subdivision (a) shall be included in all bid invitations and public works contracts, and a bid shall not be accepted nor any contract or subcontract entered into without proof of the contractor or subcontractor's current registration to perform public work pursuant to Section 1725.5. (c) An inadvertent error in listing a subcontractor who is not registered pursuant to Section 1725.5 in a bid proposal shall not be grounds for filing a bid protest or grounds for considering the bid nonresponsive, provided that any of the following apply:
(1) The subcontractor is registered prior to the bid opening. (2) Within 24 hours after the bid opening, the subcontractor is registered and has paid the penalty registration fee specified in subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5. (3) The subcontractor is replaced by another registered subcontractor pursuant to Section 4107 of the Public Contract Code.
(d) Failure by a subcontractor to be registered to perform public work as required by subdivision (a) shall be grounds under Section 4107 of the Public Contract Code for the contractor, with the consent of the awarding authority, to substitute a subcontractor who is registered to perform public work pursuant to Section 1725.5 in place of the unregistered subcontractor.
(e) The department shall maintain on its Internet Web site a list of contractors who are currently registered to perform public work pursuant to Section 1725.5.
(f) A contract entered into with any contractor or subcontractor in violation of subdivision (a) shall be subject to cancellation, provided that a contract for public work shall not be unlawful, void, or voidable solely due to the failure of the awarding body, contractor, or any subcontractor to comply with the requirements of Section 1725.5 or this section.
(g) If the Labor Commissioner or his or her designee determines that a contractor or subcontractor engaged in the performance of any public work contract without having been registered in accordance with this section, the contractor or subcontractor shall forfeit, as a civil penalty to the state, one hundred dollars ($100) for each day of work performed in violation of the registration requirement, not to exceed an aggregate penalty of eight thousand dollars ($8,000) in addition to any penalty registration fee assessed pursuant to clause (ii) of subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5. (h)(1) In addition to, or in lieu of, any other penalty or sanction authorized pursuant to this chapter, a higher tiered public works contractor or subcontractor who is found to have entered into a subcontract with an unregistered lower tier subcontractor to perform any public work in violation of the requirements of Section 1725.5 or this section shall be subject to forfeiture, as a civil penalty to the state, of one hundred dollars ($100) 259
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for each day the unregistered lower tier subcontractor performs work in violation of the registration requirement, not to exceed an aggregate penalty of ten thousand dollars ($10,000). (2) The Labor Commissioner shall use the same standards specified in subparagraph (A) of paragraph (2) of subdivision (a) of Section 1775 when determining the severity of the violation and what penalty to assess, and may waive the penalty for a first time violation that was unintentional and did not hinder the Labor Commissioner's ability to monitor and enforce compliance with the requirements of this chapter. (3) A higher tiered public works contractor or subcontractor shall not be liable for penalties assessed pursuant to paragraph (1) if the lower tier subcontractor's performance is in violation of the requirements of Section 1725.5 due to the revocation of a previously approved registration. (4) A subcontractor shall not be liable for any penalties assessed against a higher tiered public works contractor or subcontractor pursuant to paragraph (1). A higher tiered public works contractor or subcontractor may not require a lower tiered subcontractor to indemnify or otherwise be liable for any penalties pursuant to paragraph (1).
(i) The Labor Commissioner or his or her designee shall issue a civil wage and penalty assessment, in accordance with the provisions of Section 1741, upon determination of penalties pursuant to subdivision (g) and subparagraph (B) of paragraph (1) of subdivision (h). Review of a civil wage and penalty assessment issued under this subdivision may be requested in accordance with the provisions of Section 1742 . The regulations of the Director of Industrial Relations, which govern proceedings for review of civil wage and penalty assessments and the withholding of contract payments under Article 1 (commencing with Section 1720) and Article 2 (commencing with Section 1770), shall apply. (j)(1) Where a contractor or subcontractor engages in the performance of any public work contract without having been registered in violation of the requirements of Section 1725.5 or this section, the Labor Commissioner shall issue and serve a stop order prohibiting the use of the unregistered contractor or the unregistered subcontractor on all public works until the unregistered contractor or unregistered subcontractor is registered. The stop order shall not apply to work by registered contractors or subcontractors on the public work.
(2) A stop order may be personally served upon the contractor or subcontractor by either of the following methods:
(A) Manual delivery of the order to the contractor or subcontractor personally. (B) Leaving signed copies of the order with the person who is apparently in charge at the site of the public work and by thereafter mailing copies of the order by first class mail, postage prepaid to the con tractor or subcontractor at one of the following:
(i) The address of the contractor or subcontractor on file with either the Secretary of State or the Contractors' State License Board.
(ii) If the contractor or subcontractor has no address on file with the Secretary of State or the Contractors' State License Board, the address of the site of the public work. (3) The stop order shall be effective immediately upon service and shall be subject to appeal by the party contracting with the unregistered contractor or subcontractor, by the unregistered contractor or subcontractor, or both. The appeal, hearing, and any further review of the hearing decision shall be governed by the procedures, time limits, and other requirements specified in subdivision (a) of Section 238.1. 260
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(4) Any employee of an unregistered contractor or subcontractor who is affected by a work stoppage ordered by the commissioner pursuant to this subdivision shall be paid at his or her regular hourly prevailing wage rate by that employer for any hours the employee would have worked but for the work stoppage, not to exceed 10 days.
(k) Failure of a contractor or subcontractor, owner, director, officer, or managing agent of the contractor or subcontractor to observe a stop order issued and served upon him or her pursuant to subdivision (j) is guilty of a misdemeanor punishable by imprisonment in county jail not exceeding 60 days or by a fine not exceeding ten thousand dollars ($10,000), or both.
(l) This section shall apply to any bid proposal submitted on or after March 1, 2015, and any contract for public work entered into on or after April 1, 2015. This section shall also apply to the performance of any public work, as defined in this chapter, on or after January 1, 2018, regardless of when the contract for public work was entered.
(m) Penalties received pursuant to this section shall be deposited in the State Public Works Enforcement Fund established by Section 1771.3 and shall be used only for the purposes specified in that section. (n) This section shall not apply to work performed on a public works project of twenty -five thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.
Section 1771.4. Additional requirements when bidding and awarding public works contracts
(a) All of the following are applicable to all public works projects that are otherwise subject to the requirements of this chapter:
(1) The call for bids and contract documents shall specify that the project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. (2) The awarding body shall post or require the prime contractor to post job site notices, as prescribed by regulation.
(3) Each contractor and subcontractor shall furnish the records specified in Section 1776 directly to the Labor Commissioner, in the following manner:
(A) At least monthly or more frequently if specified in the contract with the awarding body. (B) In a format prescribed by the Labor Commissioner.
(4) If the contractor or subcontractor is not registered pursuant to Section 1725.5 and is performing work on a project for which registration is not required because of subdivision (f) of Section 1725.5, the unregistered contractor or subcontractor is not required to furnish the records specified in Section 1776 directly to the Labor Commissioner but shall retain the records specified in Section 1776 for at least three years after completion of the work.
(5) The department shall undertake those activities it deems necessary to monitor and enforce compliance with prevailing wage requirements.
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(b) The Labor Commissioner may exempt a public works project from compliance with all or part of the requirements of subdivision (a) if either of the following occurs:
(1) The awarding body has enforced an approved labor compliance program, as defined in Section 1771.5, on all public works projects under its authority, except those deemed exempt pursuant to subdivision (a) of Section 1771.5, continuously since December 31, 2011.
(2) The awarding body has entered into a collective bargaining agreement that binds all contractors performing work on the project and that includes a mechanism for resolving disputes about the payment of wages. (c) The requirements of paragraph (1) of subdivision (a) shall only apply to contracts for public works projects awarded on or after January 1, 2015.
(d) The requirements of paragraph (3) of subdivision (a) shall apply to all contracts for public work, whether new or ongoing, on or after January 1, 2016.
Section 1775. Penalties for violations
(a)(1) The contractor and any subcontractor under the contractor shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rates as determined by the director for the work or craft in which the worker is employed for any public work done under the contract by the contractor or, except as provided in subdivision (b), by any subcontractor under the contractor.
(2)(A) The amount of the penalty shall be determined by the Labor Commissioner based on consideration of both of the following:
(i) Whether the failure of the contractor or subcontractor to pay the correct rate of per diem wages was a good faith mistake and, if so, the error was promptly and voluntarily corrected when brought to the attention of the contractor or subcontractor.
(ii) Whether the contractor or subcontractor has a prior record of failing to meet its prevailing wage obligations.
(B)(i) The penalty may not be less than forty dollars ($40) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, unless the failure of the contractor or subcontractor to pay the correct rate of per diem wages was a good faith mistake and, if so, the error was promptly and voluntarily corrected when brought to the attention of the contractor or subcontractor. (ii) The penalty may not be less than eighty dollars ($80) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, if the contractor or subcontractor has been assessed penalties within the previous three years for failing to meet its prevailing wage obligations on a separate contract, unless those penalties were subsequently withdrawn or overturned. (iii) The penalty may not be less than one hundred twenty dollars ($120) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, if the Labor Commissioner determines that the violation was willful, as defined in subdivision (c) of Section 1777.1. (C) If the amount due under this section is collected from the contractor or subcontractor, any outstanding wage claim under Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 against that contractor 262
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or subcontractor shall be satisfied before applying that amount to the penalty imposed on that contractor or subcontractor pursuant to this section.
(D) The determination of the Labor Commissioner as to the amount of the penalty shall be reviewable only for abuse of discretion.
(E) The difference between the prevailing wage rates 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 or subcontractor, and the body awarding the contract shall cause to be inserted in the contract a stipulation that this section will be complied with. (b) If a worker employed by a subcontractor on a public works project is not paid the general prevailing rate of per diem wages by the subcontractor, the prime contractor of the project is not liable for any penalties under subdivision (a) unless the prime contractor had knowledge of that failure of the subcontractor to pay the specified prevailing rate of wages to those workers or unless the prime contractor fails to comply with all of the following requirements:
(1) The contract executed between the contractor and the subcontractor for the performance of work on the public works project shall include a copy of the provisions of this section and Sections 1771, 1776, 1777.5, 1813, and 1815.
(2) The contractor shall monitor the payment of the specified general prevailing rate of per diem wages by the subcontractor to the employees, by periodic review of the certified payroll records of the subcontractor. (3) Upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages, the contractor shall diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor for work performed on the public works project. (4) Prior to making final payment to the subcontractor for work performed on the public works project, the contractor shall obtain an affidavit signed under penalty of perjury from the subcontractor that the subcontractor has paid the specified general prevailing rate of per diem wages to his or her employees on the public works project and any amounts due pursuant to Section 1813. (c) The Division of Labor Standards Enforcement shall notify the contractor on a public works project within 15 days of the receipt by the Division of Labor Standards Enforcement of a complaint of the failure of a subcontractor on that public works project to pay workers the general prevailing rate of per diem wages.
Section 1776. Payroll records; retention; inspection; redacted information; agencies entitled to receive nonredacted copies of certified records; noncompliance penalties; rules
(a) Each contractor and subcontractor shall keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journey man, apprentice, worker, or other employee employed by him or her in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
(1) The information contained in the payroll record is true and correct. (2) The employer has complied with the requirements of Sections 1771 , 1811, and 1815 for any work performed by his or her employees on the public works project. 263
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(b) The payroll records enumerated under subdivision (a) shall be certified and shall be available for inspection at all reasonable hours at the principal office of the contractor on the following basis:
(1) A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or his or her authorized representative on request. (2) A certified copy of all payroll records enumerated in subdivision (a) shall be made available for inspection or furnished upon request to a representative of the body awarding the contract and the Division of Labor Standards Enforcement of the Department of Industrial Relations. (3) A certified copy of all payroll records enumerated in subdivision (a) shall be made available upon request by the public for inspection or for copies thereof. However, a request by the public shall be made through either the body awarding the contract or the Division of Labor Standards Enforcement. If the requested payroll records have not been provided pursuant to paragraph (2), the requesting party shall, prior to being provided the records, reimburse the costs of preparation by the contractor, subcontractors, and the entity through which the request was made. The public may not be given access to the records at the principal office of the contractor.
(c) Unless required to be furnished directly to the Labor Commissioner in accordance with paragraph (3) of subdivision (a) of Section 1771.4, the certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement or shall contain the same information as the forms provided by the division.
The payroll records may consist of printouts of payroll data that are maintained as computer records, if the printouts contain the same information as the forms provided by the division and the printouts are verified in the manner specified in subdivision (a).
(d) A contractor or subcontractor shall file a certified copy of the records enumerated in subdivision (a) with the entity that requested the records within 10 days after receipt of a written request. (e) Except as provided in subdivision (f), any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by the awarding body or the Division of Labor Standards Enforcement shall be marked or obliterated to prevent disclosure of an individual's name, address, and social security number. The name and address of the contractor awarded the contract or the subcontractor performing the contract shall not be marked or obliterated. Any copy of records made available for inspection by, or furnished to, a multiemployer Taft -Hartley trust fund ( 29 U.S.C. Sec. 186(c)(5) ) that requests the records for the purposes of allocating contributions to participants shall be marked or obliterated only to prevent disclosure of an individual's full social security number, but shall provide the last four digits of the social security number. Any copy of records made available for inspection by, or furnished to, a joint labor - management committee established pursuant to the federal Labor Management Cooperation Act of 1978 (29 U.S.C. Sec. 175a) shall be marked or obliterated only to prevent disclosure of an individual's social security number.
(f)(1) Notwithstanding any other provision of law, agencies that are included in the Joint Enforcement Strike Force on the Underground Economy established pursuant to Section 329 of the Unemployment Insurance Code and other law enforcement agencies investigating violations of law shall, upon request, be provided nonredacted copies of certified payroll records. Any copies of records or certified payroll made available for inspection and furnished upon request to the public by an agency included in the Joint Enforcement Strike Force on the Underground Economy or to a law enforcement agency investigating a violation of law shall be marked or redacted to prevent disclosure of an individual's name, address, and social security number. 264
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(2) An employer shall not be liable for damages in a civil action for any reasonable act or omission taken in good faith in compliance with this subdivision.
(g) The contractor shall inform the body awarding the contract of the location of the records enumerated under subdivision (a), including the street address, city, and county, and shall, within five working days, provide a notice of a change of location and address.
(h) The contractor or subcontractor has 10 days in which to comply subsequent to receipt of a written notice requesting the records enumerated in subdivision (a). In the event that the contractor or subcontractor fails to comply within the 10-day period, he or she shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit one hundred dollars ($100) for each cal endar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Labor Standards Enforcement, these penalties shall be withheld from progress payments then due. A contractor is not subject to a penalty assessment pursuant to this section due to the failure of a subcontractor to comply with this section.
(i) The body awarding the contract shall cause to be inserted in the contract stipulations to effectuate this section.
(j) The director shall adopt rules consistent with the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code ) and the Information Practices Act of 1977 (Title 1.8 (commencing with Section 1798) of Part 4 of Division 3 of the Civil Code) governing the release of these records, including the establishment of reasonable fees to be charged for reproducing copies of records required by this section.
Section 1777.5. Employment of registered apprentices; wages; standards; number; apprenticeable craft or trade; exemptions; contributions; compliance program
(a)(1) This chapter does not prevent the employment upon public works of properly registered apprentices who are active participants in an approved apprenticeship program. (2) For purposes of this chapter, “apprenticeship program” means a program under the jurisdiction of the California Apprenticeship Council established pursuant to Section 3070. (b)(1) Every apprentice employed upon public works shall be paid the prevailing rate of per diem wages for apprentices in the trade to which he or she is registered and shall be employed only at the work of the craft or trade to which he or she is registered.
(2) Unless otherwise provided by a collective bargaining agreement, when a contractor requests the dispatch of an apprentice pursuant to this section to perform work on a public works project and requires the apprentice to fill out an application or underg o testing, training, an examination, or other preemployment process as a condition of employment, the apprentice shall be paid for the time spent on the required preemployment activity, including travel time to and from the required activity, if any, at the prevailing rate of per diem wages for apprentices in the trade to which he or she is registered. Unless otherwise provided by a collective bargaining agreement, a contractor is not required to compensate an apprentice for the time spent on preemployment activities if the apprentice is required to take a preemployment drug or alcohol test and he or she fails to pass that test.
(c) Only apprentices, as defined in Section 3077, who are in training under apprenticeship standards that have been approved by the Chief of the Division of Apprenticeship Standards and who are parties to written 265
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apprentice agreements under Chapter 4 (commencing with Section 3070) of Division 3 are eligible to be employed at the apprentice wage rate on public works. The employment and training of each apprentice shall be in accordance with either of the following:
(1) The apprenticeship standards and apprentice agreements under which he or she is training. (2) The rules and regulations of the California Apprenticeship Council. (d) If the contractor to whom the contract is awarded by the state or any political subdivision, in performing any of the work under the contract, employs workers in any apprenticeable craft or trade, the contractor shall employ apprentices in at least the ratio set forth in this section and may apply to any apprenticeship program in the craft or trade that can provide apprentices to the site of the public work for a certificate approving the contractor under the apprenticeship standards for the employment and training of apprentices in the area or industry affected. However, the decision of the apprenticeship program to approve or deny a certificate shall be subject to review by the Administrator of Apprenticeship. The apprenticeship program or programs, upon approving the contractor, shall arrange for the dispatch of apprentices to the contractor. A contractor covered by an apprenticeship program's standards shall not be required to submit any additional application in order to include additional public works contracts under that program. “Apprenticeable craft or trade,” as used in this section, means a craft or trade determined as an apprenticeable occupation in accordance with rules and regulations prescribed by the California Apprenticeship Council. As used in this section, “contractor” includes any subcontractor under a contractor who performs any public works not excluded by subdivision (o).
(e) Before commencing work on a contract for public works, every contractor shall submit contract award information to an applicable apprenticeship program that can supply apprentices to the site of the public work.
The information submitted shall include an estimate of journeyman hours to be performed under the contract, the number of apprentices proposed to be employed, and the approximate dates the apprentices would be employed. A copy of this information shall also be submitted to the awarding body, i f requested by the awarding body. Within 60 days after concluding work on the contract, each contractor and subcontractor shall submit to the awarding body, if requested, and to the apprenticeship program a verified statement of the journeyman and apprentice hours performed on the contract. The information under this subdivision shall be public. The apprenticeship programs shall retain this information for 12 months. (f) The apprenticeship program supplying apprentices to the area of the site of the public work shall ensure equal employment and affirmative action in apprenticeship for women and minorities. (g) The ratio of work performed by apprentices to journeymen employed in a particular craft or trade on the public work may be no higher than the ratio stipulated in the apprenticeship standards under which the apprenticeship program operates if the contractor agrees to be bound by those standards. However, except as otherwise provided in this section, in no case shall the ratio be less than one hour of apprentice work for every five hours of journeyman work.
(h) This ratio of apprentice work to journeyman work shall apply during any day or portion of a day when any journeyman is employed at the jobsite and shall be computed on the basis of the hours worked during the day by journeymen so employed. Any work performed by a journeyman in excess of eight hours per day or 40 hours per week shall not be used to calculate the ratio. The contractor shall employ apprentices for the number of hours computed as above before the end of the contract or, in the case of a s ubcontractor, before the end of the subcontract. However, the contractor shall endeavor, to the greatest extent possible, to employ apprentices during the same time period that the journeymen in the same craft or trade are employed at the jobsite. When an hourly apprenticeship ratio is not feasible for a particular craft or trade, the Administrator 266
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of Apprenticeship, upon application of an apprenticeship program, may order a minimum ratio of not less than one apprentice for each five journeymen in a craft or trade classification. (i) A contractor covered by this section who has agreed to be covered by an apprenticeship program's standards upon the issuance of the approval certificate, or who has been previously approved for an apprenticeship program in the craft or trade, shall employ the number of apprentices or the ratio of apprentices to journeymen stipulated in the applicable apprenticeship standards, but in no event less than the 1 -to-5 ratio required by subdivision (g).
(j) Upon proper showing by a contractor that he or she employs apprentices in a particular craft or trade in the state on all of his or her contracts on an annual average of not less than one hour of apprentice work for every five hours of labor performed by journeymen, the Administrator of Apprenticeship may grant a certificate exempting the contractor from the 1-to-5 hourly ratio, as set forth in this section for that craft or trade. (k) An apprenticeship program has the discretion to grant to a participating contractor or contractor association a certificate, which shall be subject to the approval of the Administrator of Apprenticeship, exempting the contractor from the 1-to-5 ratio set forth in this section when it finds that any one of the following conditions is met:
(1) Unemployment for the previous three-month period in the area exceeds an average of 15 percent. (2) The number of apprentices in training in the area exceeds a ratio of 1 to 5. (3) There is a showing that the apprenticeable craft or trade is replacing at least one-thirtieth of its journeymen annually through apprenticeship training, either on a statewide basis or on a local basis. (4) Assignment of an apprentice to any work performed under a public works contract would create a condition that would jeopardize his or her life or the life, safety, or property of fellow employees or the public at large, or the specific task to which th e apprentice is to be assigned is of a nature that training cannot be provided by a journeyman.
(l) If an exemption is granted pursuant to subdivision (k) to an organization that represents contractors in a specific trade from the 1-to-5 ratio on a local or statewide basis, the member contractors shall not be required to submit individual applications for approval to local joint apprenticeship committees, if they are already covered by the local apprenticeship standards.
(m)(1) A contractor to whom a contract is awarded, who, in performing any of the work under the contract, employs journeymen or apprentices in any apprenticeable craft or trade shall contribute to the California Apprenticeship Council the same amount that the director determines is the prevailing amount of apprenticeship training contributions in the area of the public works site. A contractor may take as a credit for payments to the council any amounts paid by the contractor to an approved apprenticeship program that can supply apprentices to the site of the public works project. The contractor may add the amount of the contributions in computing his or her bid for the contract. (2)(A) At the conclusion of the 2002 -03 fiscal year and each fiscal year thereafter, the California Apprenticeship Council shall distribute training contributions received by the council under this subdivision, less the expenses of the Department of Indust rial Relations for administering this subdivision, by making grants to approved apprenticeship programs for the purpose of training apprentices. The grant funds shall be distributed as follows:
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(i) If there is an approved multiemployer apprenticeship program serving the same craft or trade and geographic area for which the training contributions were made to the council, a grant to that program shall be made.
(ii) If there are two or more approved multiemployer apprenticeship programs serving the same craft or trade and county for which the training contributions were made to the council, the grant shall be divided among those programs based on the number of apprentices from that county registered in each program. (iii) All training contributions not distributed under clauses (i) and (ii) shall be used to defray the future expenses of the Department of Industrial Relations for the administration and enforcement of apprenticeship and preapprenticeship standards and requirements under this code. (B) An apprenticeship program shall only be eligible to receive grant funds pursuant to this subdivision if the apprenticeship program agrees, prior to the receipt of any grant funds, to keep adequate records that document the expenditure of grant funds and to make all records available to the Department of Industrial Relations so that the Department of Industrial Relations is able to verify that grant funds were used s olely for training apprentices. For purposes of this subparagraph, adequate records incl ude, but are not limited to, invoices, receipts, and canceled checks that account for the expenditure of grant funds. This subparagraph shall not be deemed to require an apprenticeship program to provide the Department of Industrial Relations with more documentation than is necessary to verify the appropriate expenditure of grant funds made pursuant to this subdivision.
(C) The Department of Industrial Relations shall verify that grants made pursuant to this subdivision are used solely to fund training apprentices. If an apprenticeship program is unable to demonstrate how grant funds are expended or if an apprenticeship program is found to be using grant funds for purposes other than training apprentices, then the apprenticeship program shall not be eligible to recei ve any future grant pursuant to this subdivision and the Department of Industrial Relations may initiate th e process to rescind the registration of the apprenticeship program.
(3) All training contributions received pursuant to this subdivision shall be deposited in the Apprenticeship Training Contribution Fund, which is hereby created in the State Treasury. Upon appropriation by the Legislature, all moneys in the Apprenticeship Training Contribution Fund shall be used for the purpose of carrying out this subdivision and to pay the expenses of the Department of Industrial Relations. (n) The body awarding the contract shall cause to be inserted in the contract stipulations to effectuate this section. The stipulations shall fix the responsibility of compliance with this section for all apprenticeable occupations with the prime contractor.
(o) This section does not apply to contracts of general contractors or to contracts of specialty contractors not bidding for work through a general or prime contractor when the contracts of general contractors or those specialty contractors involve less than thirty thousand dollars ($30,000). (p) An awarding body that implements an approved labor compliance program in accordance with subdivision (b) of Section 1771.5 may, with the approval of the director, assist in the enforcement of this section under the terms and conditions prescribed by the director.
Section 1813. Forfeiture for violations; contract stipulation; report of violations
The contractor or subcontractor shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit twenty- five dollars ($25) for each worker employed in the execution of 268
Attachment No. 1
the contract by the respective contractor or subcontractor for each calendar day during which the worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of this article. In awarding any contract for public work, the awarding body shall cause to be inserted in the contract a stipulation to this effect. The awarding body shall take cognizance of all violations of this article committed in the course of the executi on of the contract, and shall report them to the Division of Labor Standards Enforcement.
Section 1815. Overtime
Notwithstanding the provisions of Sections 1810 to 1814, inclusive, of this code, and notwithstanding any stipulation inserted in any contract pursuant to the requirements of said sections, work performed by employees of contractors in excess of 8 hours per day, and 40 hours during any one week, shall be permitted upon public work upon compensation for all hours worked in excess of 8 h ours per day at not less than 1 ½ times the basic rate of pay.
269
Attachment No. 2
ATTACHMENT NO. 2
CALIFORNIA PUBLIC CONTRACT CODE SECTION 9204
Section 9204. Legislative findings and declarations regarding timely and complete payment of contractors for public works projects; claims process (Eff: January 1, 2017)
(a) The Legislature finds and declares that it is in the best interests of the state and its citizens to ensure that all construction business performed on a public works project in the state that is complete and not in dispute is paid in full and in a timely manner.
(b) Notwithstanding any other law, including, but not limited to, Article 7.1 (commencing with Section 10240) of Chapter 1 of Part 2, Chapter 10 (commencing with Section 19100) of Part 2, and Article 1.5 (commencing with Section 20104) of Chapter 1 of Part 3, this section shall apply to any claim by a contractor in connection with a public works project.
(c) For purposes of this section:
(1) “Claim” means a separate demand by a contractor sent by registered mail or certified mail with return receipt requested, for one or more of the following:
(A) A time extension, including, without limitation, for relief from damages or penalties for delay assessed by a public entity under a contract for a public works project. (B) Payment by the public entity of money or damages arising from work done by, or on behalf of, the contractor pursuant to the contract for a public works project and payment for which is not otherwise expressly provided or to which the claimant is not otherwise entitled. (C) Payment of an amount that is disputed by the public entity. (2) “Contractor” means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who has entered into a direct contract with a public entity for a public works project.
(3)(A) “Public entity” means, without limitation, except as provided in subparagraph (B), a state agency, department, office, division, bureau, board, or commission, the California State University, the University of California, a city, including a charter city, county, including a charter county, city and county, including a charter city and county, district, special district, public authority, political subdivision, public corporation, or nonprofit transit corporation wholly owned by a public agency and f ormed to carry out the purposes of the public agency.
(B) “Public entity” shall not include the following:
(i) The Department of Water Resources as to any project under the jurisdiction of that department. (ii) The Department of Transportation as to any project under the jurisdiction of that department. (iii) The Department of Parks and Recreation as to any project under the jurisdiction of that department. (iv) The Department of Corrections and Rehabilitation with respect to any project under its jurisdiction pursuant to Chapter 11 (commencing with Section 7000) of Title 7 of Part 3 of the Penal Code. 270
Attachment No. 2
(v) The Military Department as to any project under the jurisdiction of that department. (vi) The Department of General Services as to all other projects. (vii) The High-Speed Rail Authority.
(4) “Public works project” means the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind. (5) “Subcontractor” means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who either is in direct contract with a contractor or is a lower tier subcontractor.
(d)(1)(A) Upon receipt of a claim pursuant to this section, the public entity to which the claim applies shall conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall provide the claimant a written statement identifying w hat portion of the claim is disputed and what portion is undisputed. Upon receipt of a claim, a public entity and a contractor may, by mutual agreement, extend the time period provided in this subdivision.
(B) The claimant shall furnish reasonable documentation to support the claim. (C) If the public entity needs approval from its governing body to provide the claimant a written statement identifying the disputed portion and the undisputed portion of the claim, and the governing body does not meet within the 45 days or within the mutu ally agreed to extension of time following receipt of a claim sent by registered mail or certified mail, return receipt requested, the public entity shall have up to three days following the next duly publicly noticed meeting of the governing body after the 45-day period, or extension, expires to provide the claimant a written statement identifying the disputed portion and the undisputed portion. (D) Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. If the public entity fails to issue a written statement, paragraph (3) shall apply.
(2)(A) If the claimant disputes the public entity’s written response, or if the public entity fails to respond to a claim issued pursuant to this section within the time prescribed, the claimant may demand in writing an informal conference to meet and conf er for settlement of the issues in dispute. Upon receipt of a demand in writing sent by registered mail or certified mail, return receipt requested, the public entity shall schedule a meet and confer conference within 30 days for settlement of the dispute. (B) 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 public entity shall provide the claimant 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 public entity 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 public entity and the claimant sharing the associated costs equally. The public entity and claimant shall mutually agree to a mediator within 10 business days after the disputed portion of the claim has been identified in writing. 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. If mediation is unsuccessful, the parts of the claim remaining in dispute shall be subject to applicable procedures outside this section. 271
Attachment No. 2
(C) For purposes of this section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this section.
(D) Unless otherwise agreed to by the public entity 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.
(E) This section does not preclude a public entity from requiring arbitration of disputes under private arbitration or the Public Works Contract Arbitration Program, if mediation under this section does not resolve the parties’ dispute.
(3) Failure by the public entity to respond to a claim from a contractor within the time periods described in this subdivision or to otherwise meet the time requirements of this section shall result in the claim being deemed rejected in its entirety. A claim that is denied by reason of the public entity’s failure to have responded to a claim, or its failure to otherwise meet the time requirements of this section, shall not constitute an adverse finding with regard to the merits of the claim or the responsibility or qualifications of the claimant. (4) Amounts not paid in a timely manner as required by this section shall bear interest at 7 percent per annum. (5) If a subcontractor or a lower tier subcontractor lacks legal standing to assert a claim against a public entity because privity of contract does not exist, the contractor may present to the public entity a claim on behalf of a subcontractor or lower tier subcontractor. A subcontractor may request in writing, either on their own behalf or on behalf of a lower tier subcontractor, that the contractor present a claim for work which was performed by the subcontractor or by a lower tier subcontractor on behal f of the subcontractor. The subcontractor requesting that the claim be presented to the public entity shall furnish reasonable documentation to support the claim. Within 45 days of receipt of this written request, the contractor shall notify the subcontrac tor in writing as to whether the contractor presented the claim to the public entity and, if the original contractor did not present the claim, provide the subcontractor with a statement of the reasons for not having done so. (e) The text of this section or a summary of it shall be set forth in the plans or specifications for any public works project that may give rise to a claim under this section. (f) A waiver of the rights granted by this section is void and contrary to public policy, provided, however, that (1) upon receipt of a claim, the parties may mutually agree to waive, in writing, mediation and proceed directly to the commencement of a civi l action or binding arbitration, as applicable; and (2) a public entity may prescribe reasonable change order, claim, and dispute resolution procedures and requirements in addition to the provisions of this section, so long as the contractual provisions do not conflict with or otherwise impair the timeframes and procedures set forth in this section. (g) This section applies to contracts entered into on or after January 1, 2017. (h) Nothing in this section shall impose liability upon a public entity that makes loans or grants available through a competitive application process, for the failure of an awardee to meet its contractual obligations. (i) This section shall remain in effect only until January 1, 2027, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2027, deletes or extends that date. 272
1 2 3 4
Bid No. 23-24.26; Project No. SP-4264
Date of Bid Opening: 2/1/2024
Tel. No. (714) 637-1550 Tel. No. (951) 736-7600 Tel. No. (714) 444-1851 Tel. No. (562) 599-5841 NO. DESCRIPTION OF WORK QUANTITY UNIT PRICE AMOUNT UNIT PRICE AMOUNT UNIT PRICE AMOUNT UNIT PRICE AMOUNT UNIT PRICE AMOUNT 1 Asphalt Concrete Pavement - Residential
Base Course 95 TON 135.00$ $12,825.00 $287.00 $27,265.00 $173.00 $16,435.00 $325.00 $30,875.00 $350.00 $33,250.00 2 Remove Asphalt Concrete/Subgrade
(Residential 2.5" to 3" Unclassified
Excavation)
50 CY 250.00$ $12,500.00 $243.50 $12,175.00 $240.00 $12,000.00 $425.00 $21,250.00 $520.00 $26,000.00 3 Asphalt Rubberized Hot Mix (ARHM)
2" Residential Surface Course (1/2"
Class ARHM-GG-C)
825 TON 155.00$ $127,875.00 $162.00 $133,650.00 $180.00 $148,500.00 $140.00 $115,500.00 $275.00 $226,875.00 4 Cold Plane Existing Asphalt Concrete
(Depth per Plan) 2,610 SY 5.50$ $14,355.00 $15.15 $39,541.50 $29.00 $75,690.00 $18.00 $46,980.00 $12.00 $31,320.00 5 Inventory and Install Pavement Striping,
Legends, Pavement Markings (Legends)
and Raised Pavement Markers (RPM’s)
per MUTCD
1 LS 7,500.00$ $7,500.00 $8,200.00 $8,200.00 $15,000.00 $15,000.00 $44,845.00 $44,845.00 $5,000.00 $5,000.00 6 Adjust/Remove and Replace Water Valve
Box To Grade per OWD Std No. 101 18 EA 1,500.00$ $27,000.00 $965.00 $17,370.00 $1,200.00 $21,600.00 $2,000.00 $36,000.00 $1,300.00 $23,400.00 7 Adjust Manhole Frame & Cover To Grade
per City Std. 408 7 EA 1,500.00$ $10,500.00 $2,690.00 $18,830.00 $1,200.00 $8,400.00 $2,000.00 $14,000.00 $1,400.00 $9,800.00 8 Furnish and Install 2" PVC Conduit 150 LF 115.00$ $17,250.00 $229.00 $34,350.00 $150.00 $22,500.00 $125.00 $18,750.00 $260.00 $39,000.00 9 Furnish and Install No. 3 1/2 Pull Box 4 EA 250.00$ $1,000.00 $1,100.00 $4,400.00 $1,500.00 $6,000.00 $1,200.00 $4,800.00 $1,200.00 $4,800.00 $230,805.00 $295,781.50 $326,125.00 $333,000.00 $399,445.00 City of Orange: Summary of Bid Abstracts for:
Corona, CA Lake Forest, CA
Grand Total
PAVEMENT IMPROVEMENTS
ENGINEER'S ESTIMATE
CDBG FY23-24 Grand Street Neighborhood Street
Rehabilitation
R. J. Noble Company All American Asphalt Hardy & Harper, Inc.
Orange, CA Long Beach, CA
PALP Inc., dba Excel Paving
Company
CITY OF ORANGE
AMENDMENT TO THE
2023-2024 ANNUAL ACTION PLAN
BACKGROUND
Each year the US Department of Housing and Urban Development (HUD) provides funding for housing and community development programs to the City of Orange, specifically C ommunity Dev elopment Block Grant (CDBG) and Home Investment Partnerships (HOME) Program funds. To receive these funds, the City must complete a report every five year called the Consolidated Plan.
The purpose of the Consolidated Plan is to identify the City of Orange’s housing and community development needs, priorities, goals, and strategies and to stipulate how funds will be allocated to housing and community development activities over the period of the Consolidated Plan, which in this case is every five years.
The City shall amend the approved Consolidated Plan and Annual Action Plans when:
• A substantial change (e.g., 20% or more) in its allocation priorities or a substantial change in the method of distribution of funds takes place; or
• Carries out an activity, using funds from any program covered by the consolidated plan (including program income), not previously described in the action plan; or
• Substantially change the purpose, scope, location, or beneficiaries of an activity.
The substantial change criteria utilized by the City of Orange in this case, is determined by a the addition of a new activity that was not previously considered by the Council for the use of HUD funding and in which the change would exceed:
1. 20% of the original allocation s or when beneficiaries are impacted by the change; and/or
2. Carries out an activity, using funds from any program covered by the consolidated plan (including program income), not previously described in the action plan
As required by Title I of the Cranst on-Gonzalez National Affordable Housing Act, the City of Orange has submitted an Annual Action Plan for the 20 23-2024 fiscal year. This Plans outlines the activities and expected allocation for th is year. The City also has a Citizen Participation Plan whic h out lines p rocedures for citizen participation in the planning process of the Consolidated Plan and Annual Action Plan particularly to those areas to be affected by the proposed funds.
274
Amendment to 2023-2024 Annual Action Plan
AMENDMENT TO 2023-2024 ANNUAL ACTION PLAN
At the May 9, 2023, City Council meeting, members of the City Council approved the allocation of the HUD funds for the 202 3 – 2024 fiscal year. Through the Community Development Block Grant (CDBG), the city will allocate an additional $56,400 of available funding that has remaine d unspent on the 2023-2024 Grand Street Neighborhood Street Rehabilitation Project to cover t he higher than anticipated constructions costs re lated to the rehabilitation of pavement on Grand Street from Collins Avenue to Wilson Avenue.
These eligible activities are allowed under the CDBG guidelines.
CITIZEN PARTICIPATION
Per the Citizen Pa rticipation Plan, the increased compensation to the 202 3-2024 ADA Wheelchair Access Ramp Project does not constitute a s ubstantial amendment to the 2023-2024 Action Plan as it is below 20% (below $56,478) of the original allocation.
275
Agenda Item
City Council
Item #: 3.8. 3/12/2024 File #: 24-0098
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Christopher Cash, Public Works Director
1. SUBJECT
Award of Contract to Diversified Thermal Services for mechanical services and preventative maintenance for heating, ventilation, and air conditioning equipment at various city buildings and parks; and finding of California Environmental Quality Act exemption; Bid No. 23-24.22 (SP-4277).
2. SUMMARY
Bids for mechanical services and preventative maintenance of heating, ventilation, and air conditioning equipment at various city buildings and parks were received and opened on January 11, 2024. One bidder, Diversified Thermal Services, LLC, responded to the invitation to bid, for a total of $608,144, which includes a 10% contingency of $55,286 for an initial three-year term.
3. RECOMMENDED ACTION
1. Approve the contract with Diversified Thermal Services, LLC in the amount of $608,144 to maintain and repair heating, ventilation, and air conditioning systems in various city buildings and parks; and authorize the Mayor and City Clerk to execute the contract on behalf of the City.
2. Find that the proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15301 “Existing Facilities” Class 1.
4. FISCAL IMPACT
The annual expenditure for this contract is $202,714 and will be funded through:
100.7022.51420.00000 General Fund -Maintenance Contracts (Parks) $ 14,792 100.7022.51401.00000 General Fund -Repairs to Building (Parks) $ 53,070 100.5028-51421.00000 General Fund -Maintenance Contract-Htg/Air $ 94,500 100.5028.51700.00000 General Fund -Contractual Services $ 40,352 Total: $202,714
5. STRATEGIC PLAN GOALS
Goal 1: Provide for a safe community
b: Provide and maintain infrastructure necessary to ensure the safety of the public.
Goal 4: Provide outstanding public service
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Item #: 3.8. 3/12/2024 File #: 24-0098
b: Provide facilities and services to meet customer expectations.
6. DISCUSSION AND BACKGROUND
An informal bid solicitation was posted on December 14, 2023, seeking preventive maintenance and emergency repairs for heating, ventilation, and air conditioning (HVAC) equipment for city facilities and parks for a five-year term. Diversified Thermal Services, LLC, the sole bidder, proposed an annual bid of $202,714, including a 10% contingency. The initial term of this contract is three years commencing July 1, 2024, and expiring on June 30, 2027, with a two-year option to extend the contract for years four and five. Diversified Thermal Services, LLC will perform the initial three-year term at the base annual contract price for not-to-exceed $608,144. The bid is 19% higher than the current contract, which is set to expire on June 30, 2024. This cost increase is consistent with other service contracts that have seen higher labor and material costs. The final contract year and any subsequent city-approved extensions are subject to a maximum increase of 2% based upon the Consumer Price Index (CPI).
Diversified Thermal Services, LLC is the City's current vendor and has received positive feedback from the Public Works and Community Services departments. They are recommended for the contract as they meet all the qualifications stated in the City's invitation to bid.
7. ENVIRONMENTAL REVIEW
Categorical Exemption: The proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15301 “Existing Facilities” Class 1 because the project involves the repair and maintenance of existing facilities with no expansion of existing use. The CEQA Notice of Exemption will be filed with the County Recorder’s Office upon the City Council’s approval of the plans and specifications.
8. ATTACHMENTS
· Contract with Diversified Thermal Services, LLC
· Bid Abstract
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Agenda Item
City Council
Item #: 3.8. 3/12/2024 File #: 24-0098
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Christopher Cash, Public Works Director
1. SUBJECT
Award of Contract to Diversified Thermal Services for mechanical services and preventative maintenance for heating, ventilation, and air conditioning equipment at various city buildings and parks; and finding of California Environmental Quality Act exemption; Bid No. 23-24.22 (SP-4277).
2. SUMMARY
Bids for mechanical services and preventative maintenance of heating, ventilation, and air conditioning equipment at various city buildings and parks were received and opened on January 11, 2024. One bidder, Diversified Thermal Services, LLC, responded to the invitation to bid, for a total of $608,144, which includes a 10% contingency of $55,286 for an initial three-year term.
3. RECOMMENDED ACTION
1. Approve the contract with Diversified Thermal Services, LLC in the amount of $608,144 to maintain and repair heating, ventilation, and air conditioning systems in various city buildings and parks; and authorize the Mayor and City Clerk to execute the contract on behalf of the City.
2. Find that the proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15301 “Existing Facilities” Class 1.
4. FISCAL IMPACT
The annual expenditure for this contract is $202,714 and will be funded through:
100.7022.51420.00000 General Fund -Maintenance Contracts (Parks) $ 14,792 100.7022.51401.00000 General Fund -Repairs to Building (Parks) $ 53,070 100.5028-51421.00000 General Fund -Maintenance Contract-Htg/Air $ 94,500 100.5028.51700.00000 General Fund -Contractual Services $ 40,352 Total: $202,714
5. STRATEGIC PLAN GOALS
Goal 1: Provide for a safe community
b: Provide and maintain infrastructure necessary to ensure the safety of the public.
Goal 4: Provide outstanding public service
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Item #: 3.8. 3/12/2024 File #: 24-0098
b: Provide facilities and services to meet customer expectations.
6. DISCUSSION AND BACKGROUND
An informal bid solicitation was posted on December 14, 2023, seeking preventive maintenance and emergency repairs for heating, ventilation, and air conditioning (HVAC) equipment for city facilities and parks for a five-year term. Diversified Thermal Services, LLC, the sole bidder, proposed an annual bid of $202,714, including a 10% contingency. The initial term of this contract is three years commencing July 1, 2024, and expiring on June 30, 2027, with a two-year option to extend the contract for years four and five. Diversified Thermal Services, LLC will perform the initial three-year term at the base annual contract price for not-to-exceed $608,144. The bid is 19% higher than the current contract, which is set to expire on June 30, 2024. This cost increase is consistent with other service contracts that have seen higher labor and material costs. The final contract year and any subsequent city-approved extensions are subject to a maximum increase of 2% based upon the Consumer Price Index (CPI).
Diversified Thermal Services, LLC is the City's current vendor and has received positive feedback from the Public Works and Community Services departments. They are recommended for the contract as they meet all the qualifications stated in the City's invitation to bid.
7. ENVIRONMENTAL REVIEW
Categorical Exemption: The proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15301 “Existing Facilities” Class 1 because the project involves the repair and maintenance of existing facilities with no expansion of existing use. The CEQA Notice of Exemption will be filed with the County Recorder’s Office upon the City Council’s approval of the plans and specifications.
8. ATTACHMENTS
· Contract with Diversified Thermal Services, LLC
· Bid Abstract
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279
CONTRACT
[Mechanical Services and Preventative Maintenance of Heating, Ventilation, and Air Conditioning (HVAC) Equipment at Various City
Buildings and Parks (Bid No. 23-24.22; SP-4277)]
THIS CONTRACT
WKH ³Contract´
LV PDGH DQGentered into as of ______________,
2024
³(IIHFWLYH 'DWH´
E\ DQG EHWZHHQ WKH &,7< 2) 25$1*( D PXQLFLSDO FRUSRUDWLRQ
³&LW\´
DQG DIVERSIFIED THERMAL SERVICES, LLC, a California corporation
³&RQWUDFWRU´
who agree as follows.
ARTICLE 1
Work Performed
a. For and in consideration of the payments and agreements hereinafter mentioned, to be made and performed by City, and under the conditions expressed in the two (2) bonds presented to City with this Contract and incorporated herein by this reference, Contractor hereby agrees to and shall do all the work and furnish all the labor, materials, tools and equipment, except such as are mentioned in the specifications to be furnished by City to Contractor, necessary to complete in good workmanship and substantial manner the work (WKH³:RUN´ GHVFULEHGLQ
(1) The latest edition of the "City of Orange Standard Plans and Specifications"
WKH³2UDQJH%RRN´
ZLWKthe term "Engineer," as used in the Orange Book and in this Contract, to specifically include the City Engineer (or designee);
(2) The "Standard Specifications for Public Works Construction ´ (the ³Greenbook´
DQGDOODPHQGPHQWVWKHUHWRH[FHSWWKHGHILQLWLRQRI³6XEFRQWUDFWRU´LQ6HFWLRQ (General ± Terms and Definitions) of Part 1 (General Provisions) of the Greenbook, which is KHUHE\ DPHQGHG LQ LWV HQWLUHW\ WR UHDG DV IROORZV ³6XEFRQWUDFWRU ± An individual, firm, or
corporation having a direct contract with the Contractor for the performance of a part of the :RUN ´
(3) 7KH³&LW\RI2UDQge Standard Special Provisions;´
(4) The Standard Plans; and
(5) Contractor¶V Bid Proposal, which is on file with City ¶V 'HSDUWPHQW RI Public Works.
b. Contractor acknowledges that it has received the Plans from City and that a complete copy of the Plans are in its possession and are hereby specifically referred to and by such reference made a part hereof. The Orange Book, Greenbook and City of Orange Standard Special Provisions and Standard Plans are on file with City ¶V 3XEOLF :RUNV 'LUHFWRU DQG DUH KHUHE\ specifically referred to and by such reference made a part hereof. Contractor hereby acknowledges that it has read, reviewed and understands the Plans, the Orange Book, the Greenbook, the Special 280
2 Provisions, the Standard Plans, and the Encroachment Permit as they relate to the Work, all of ZKLFKGRFXPHQWVVKDOOEHUHIHUUHGWRKHUHLQFROOHFWLYHO\DVWKH³3ODQVDQG6SHFLILFDWLRQV´
c. Contractor acknowledges the provisions of Chapter 8.28 of the Orange Municipal Code which requires, among other things, that Contractor utilize City ¶V H[FOXVLYH VROLG ZDVWH hauler for the rental of bins for trash and debris removal and imposes mandatory recycling requirements for self-hauled construction and demolition waste. The terms and conditions set forth in this Contract shall control over any terms and conditions in the Plans and Specifications to the contrary.
d. The Work shall be performed in conformity with the Plans and Specifications and the Bid Proposal and all applicable laws, including any and all applicable federal and state labor laws and standards and applicable prevailing wage requirements and any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment.
e. Unless and until otherwise notified in writing by City ¶V 3XEOLF :RUNV 'LUHFWRU &LW\¶V Assistant Field Services Manager, Matthew Lorenzen ³$XWKRUL]HG&LW\5HSUHVHQWDWLYH´
shall be the person to whom Contractor will report for the performance of the Work hereunder. It LV XQGHUVWRRG WKDW &RQWUDFWRU¶V SHUIRUPDQFH KHUHXQGHU VKDOO EH XQGHU WKH GLUHFWLRQ DQG supervision of the Authorized City Representative or such other person as City ¶V3XEOLF:RUNV Director may designate from time to time, that Contractor shall coordinate the Work hereunder with the Authorized City Representative to the extent required by the Authorized City Representative, and that all performances required hereunder by Contractor shall be performed to the satisfaction of the Authorized City Representative or City¶V3XEOLF:RUNV'LUHFWRU
f. It is expressly agreed by and between the parties hereto that should there be any conflict between the teUPVRIWKLVLQVWUXPHQWDQG&RQWUDFWRU¶V%id Proposal, then this instrument shall control and nothing herein shall be considered as an acceptance of the said terms of said Bid Proposal conflicting herewith.
ARTICLE 2
Commencement of Work
Contractor shall commence the Work provided for in this Contract within ten (10) days of the date of the issuance by City of a Notice to Proceed and diligently prosecute completion of the Work within ONE THOUSAND NINTY FIVE ([1,095]) calendar days from such date, unless legal extension is granted in accordance with the terms set forth in the Greenbook. Time is of the essence in this Contract. Contractor shall do all things necessary and incidental to the prosecution of Contractor's Work.
ARTICLE 3
Compensation
a. Contractor agrees to receive and accept an amount not to exceed FIVE HUNDRED FIFTY-TWO THOUSAND EIGHT HUNDRED FIFTY-EIGHT DOLLARS and 00/100 281
3 ($552,858.00) as compensation for furnishing all materials and doing all the Work contemplated and embraced in this Contract. Said compensation covers (1) all loss or damage arising out of the nature of the Work, from the acts of the elements; (2) any unforeseen difficulties or obstructions which may arise or be encountered in the prosecution of the Work until its acceptance by City, other than as provided below; (3) all risks of every description connected with the Work; (4) all expenses incurred by or in consequence of the suspension or discontinuance of the Work; and (5) well and faithfully completing the Work, and for the whole thereof, in the manner and according to the Plans and Specifications, and requirements of the Authorized City Representative under them. Retention amounts shall be withheld from progress payments as required by law unless Contractor provides securities in lieu of retention.
b. In addition to the scheduled Work to be performed by the Contractor, the parties recognize that additional, unforeseen work and services may be required by the Authorized City Representative. In anticipation of such contingencies, the sum of FIFTY-FIVE THOUSAND TWO HUNDRED EIGHTY-SIX DOLLARS and 00/100 ($55,286.00) has been added to the total compensation of this Contract. The Authorized City Representative may approve the additional work and the actual costs incurred by the Contractor in performance of additional work or services in accordance with such amount as the Authorized City Representative and the Contractor may agree upon in advance. Said additional work or services and the amount of compensation therefor, up to the amount of the authorized contingency, shall be memorialized in the form of a Contract Amendment approved by the City Manager on a form acceptable to the City Attorney. The Contractor agrees to perform only that work or those services that are specifically requested by the Authorized City Representative. Any and all additional work and services performed under this Contract shall be completed in such sequence as to assure their completion as expeditiously as is consistent with professional skill and care in accordance with a cost estimate or proposal submitted to and approved by the Authorized City Representative prior to the commencement of such Work or services.
c. The total amount of compensation under this Contract, including contingencies, shall not exceed SIX HUNDRED EIGHT THOUSAND ONE HUNDRED FORTY-FOUR DOLLARS and 00/100 ($608,144.00).
ARTICLE 4
Licenses
Contractor represents that it and any subcontractors it may engage, possess any and all licenses which are required under state or federal law to perform the Work contemplated by this Contract and that Contractor and subcontractors shall maintain all appropriate licenses, including a City of Orange business license, at its cost, during the performance of this Contract.
ARTICLE 5
Guarantees
a. Contractor guarantees the construction and installation of all Work included in the Plans and Specifications for which Contractor has been awarded this Contract.
282
4 b. Should any of the materials or equipment installed pursuant to this Contract prove defective or should the Work as a whole prove defective, due to faulty equipment, workmanship, materials furnished or methods of installations, or should said Work or any part thereof fail to function properly, as designed, due to any of the above causes within twelve (12) months after the date on which said Work is accepted by City, Contractor shall make repairs and furnish such materials and equipment as are necessary to be furnished and installed within fifteen (15) calendar days after the receipt of a demand from City.
c. Said Work will be deemed defective within the meaning of this guarantee in the event that it fails to function as originally intended either by the Plans and Specifications of this Contract or by the manufacturer(s) of the equipment incorporated into the Work.
d. In the event repairs are not made within fifteen (15) calendar days after Contractor's receipt of a demand from City, City shall have the unqualified option to make any needed repairs or replacements itself or by any other contractor. Contractor shall reimburse City, upon demand, for all expenses incurred in restoring said Work to the condition contemplated in this Contract, including the cost of any equipment or materials replaced.
e. It is understood that emergency repairs may, by necessity, be made by City.
Therefore, when defective equipment, materials or workmanship result in emergency repairs by City, Contractor shall reimburse City, upon demand, for all expenses incurred. Emergency repairs ZLOOEHGHHPHGDVWKRVHUHSDLUVGHWHUPLQHGE\&LW\¶V'LUHFWRURI3XEOLF:RUNVWREHQHFHVVDU\ due to an immediate detriment to the health, safety, welfare or convenience of the residents of City.
ARTICLE 6
Water Quality
a. 7KH 6DQWD $QD 5HJLRQDO :DWHU 4XDOLW\ &RQWURO %RDUG ³5:4&%´
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ZKLFKJRYHUQVVWRUPZDWHUDQGQRQ -storm water discharges resulting from municipal activities performed by City or its contractors. In order to comply with the Permit requirements, WKH &RXQW\ RI 2UDQJH KDV SUHSDUHG D 'UDLQDJH $UHD 0DQDJHPHQW 3ODQ ³'$03´
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WKat City and its
contractors must adhere to. The Model Maintenance Procedures contain pollution prevention and source control techniques to minimize the impact of those activities upon dry-weather urban runoff, storm water runoff, and receiving water quality. Examples include: wash water from cleaning of sidewalks or parking lots must be collected and disposed of in the sewer or landscaped areas.
b. The Permit, the DAMP and the Model Maintenance Procedures are on file in the RIILFH RI &LW\¶V 'LUHFWRU RI 3XEOLF :RUNV &RQWUDFWRU KHUHE\ DFNQRZOHGJHV WKDW LW KDV UHDG reviewed and understands the Permit, the DAMP and the Model Maintenance Procedures, as they relate to the Work and hereby shall perform the Work in conformance therewith.
283
5 ARTICLE 7
Independent Contractor; Contractor not Agent
a. At all times during the term of this Contract, Contractor shall be an independent contractor and not an employee of City. City shall have the right to control Contractor only insofar DVWKHUHVXOWRI&RQWUDFWRU¶VVHUYLFHVUHQGHUHGSXUVXDQWWRWKLV&RQWUDF t. City shall not have the right to control the means by which Contractor accomplishes services rendered pursuant to this Contract. Contractor shall, at its sole cost and expense, furnish all facilities, materials and equipment which may be required for furnishing services pursuant to this Contract. Contractor shall be solely responsible for, and shall indemnify, defend and save City harmless from all matters relating to the payment of its subcontractors, agents and employees, including compliance with social security, withholding and all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever. Contractor acknowledges that Contractor and any subcontractors, agents or employees employed by Contractor shall not, under any circumstances, be considered employees of City, and that they shall not be entitled to any of the benefits or rights afforded employees of City, including, but not limited to, sick leave, vacation leave, holiday pay, Public Employees Retirement System benefits, or health, life, dental, long-term disability or workers' compensation insurance benefits.
b. Except as City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor shall have no authority, express or implied, to bind City to any obligation whatsoever.
ARTICLE 8
Public Work; Prevailing Wage
a. The Work which is the subject of this Contract LVD³SXEOLFZRUN´ as that term is defined in Section 1720 of the California Labor Code, for which prevailing wages must be paid.
To the extent Contractor ¶V HPSOR\HHV ZLOO SHUIRUP DQ\ ZRUN WKDW IDOOV ZLWKLQ DQ\ RI WKH classifications for which the Department of Labor Relations of the State of California promulgates prevailing wage determinations, Contractor hereby agrees that Contractor, and any subcontractor under it, shall pay not less than the specified prevailing rates of wages to all such workers. The general prevailing wage determinations for crafts can be located on the website of the Department of Industrial Relations (www.dir.ca.gov/DLSR). Additionally, to perform work under this Contract, Contractor must meet all State registration requirements and criteria, including project compliance monitoring.
b. Attached hereto as Attachment No. 1 and incorporated herein by this reference is a copy of the provisions of Sections 1725.5, 1771, 1771.1, 1771.4, 1775, 1776, 1777.5, 1813 and 1815 of the California Labor Code. Contractor hereby acknowledges that it has read, reviewed and understands those provisions of the Labor Code and shall prosecute and complete the Work under this Contract in strict compliance with all of those terms and provisions.
c. Contractor shall secure the payment of compensation to its employees in accordance with the provisions of Section 3700 of the California Labor Code. Accordingly, and as required by Section 1861 of the California Labor Code, Contractor hereby certifies as follows:
284
6 ³I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the ZRUNRIWKLVFRQWUDFW´
d. Contractor shall indemnify, protect, defend and hold harmless City and its officers, employees, contractors and agents, with counsel reasonably acceptable to City, from and against DQ\ DQG DOO ORVV OLDELOLW\ GDPDJH FODLP FRVW H[SHQVH DQGRU ³LQFUHDVHG FRVWV´ LQFOXGLQJ
reasonable DWWRUQH\¶V fees, court and litigation costs, and fees of expert witnesses) which result or arise in any way from the noncompliance by Contractor of any applicable local, state and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, the requirement to pay state prevailing wages). It is agreed by the parties that, in connection with the construction of the Work which is the subject of this Contract, Contractor shall bear all risks of payment or non- SD\PHQWRIVWDWHSUHYDLOLQJZDJHV³,QFUHDVHG FRVWV´DV used in this paragraph shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be enacted, adopted or amended from time to time. The foregoing indemnity shall survive termination of this Contract.
ARTICLE 9
Equal Employment Opportunity
During the performance of this Contract, Contractor agrees as follows:
a. Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law. Contractor shall ensure that applicants are employed and that employees are treated during employment, without regard to their race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law.
Such actions shall include, but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. Contractor shall post in conspicuous places, available to employees and applicants for employment, a notice setting forth provisions of this non-discrimination clause.
b. Contractor shall, in all solicitations and advertisements for employees placed by, or on behalf of Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law.
c. Contractor shall cause the foregoing paragraphs (a) and (b) to be inserted in all subcontracts for any Work covered by this Contract, provided that the foregoing provisions shall not apply to subcontracts for standard commercial supplies or raw materials.
285
7 ARTICLE 10
Conflicts of Interest
Contractor agrees that it shall not make, participate in the making, or in any way attempt to use its position as a contractor to influence any decision of City in which Contractor knows or has reason to know that Contractor, its officers, partners, or employees have a financial interest as defined in Section 87103 of the Government Code. Contractor further agrees that it shall not be eligible to work as the builder for any project for which the design work is part of this Contract.
ARTICLE 11
Indemnity
Contractor shall defend, indemnify and hold harmless City and its officers, officials, agents, and employees from and against:
a. Any and all claims, liabilities, losses, damages, penalties, costs or expenses (including reasonable attorneys' fees and court costs) which City may directly or indirectly sustain or suffer arising from or as a result of the death of any person or any accident, injury, loss or damage whatsoever caused to any person or the property of any person which shall occur on or adjacent to the real property which is the subject of this Contract, or in connection with performance of this Contract which may be directly or indirectly caused by the acts or omissions of Contractor or its officers, employees, contractors or agents, or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release of a hazardous waste or substance. Contractor shall not be responsible for (and such indemnity shall not apply to) any willful misconduct, negligence or breach of this Contract by City or its officers, officials, agents, and employees. The foregoing indemnity shall survive termination of this Contract.
b. $Q\DQGDOOFODLPVXQGHUZRUNHUV¶FRPSHQVDWLRQDFWVDQGRWKHUHPSOR\HHEHQHILW DFWVZLWKUHVSHFWWR&RQWUDFWRU¶VHPSOR\HHVRU&RQWUDFWRU¶VVXEFRQWUDFWRU¶VHPSOR\HHVDULVLQJRXW RI&RQWUDFWRU¶VWork under this Contract, including any and all claims under any law pertaining WR&RQWUDFWRU¶VVWDWXVDVDQLQGHSHQGHQWFRQWUDFWRU
ARTICLE 12
Insurance
a. Contractor shall procure and maintain for the duration of this Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder and the results of that Work by Contractor, its agents, representatives, employees or subcontractors. Any umbrella liability insurance that is provided as part of the general or automobile liability minimums set forth below shall be maintained for the duration of the Contract.
b. Contractor shall maintain the following minimum amount of insurance: the greater of either the limits set forth in (1) through (4), below; or all of the insurance coverage and/or limits carried by or available to Contractor.
286
8 (1) General Liability $2,000,000 per occurrence for bodily injury, personal injury and property damage. If
Commercial General Liability insurance
or other form with 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.
(2) Automobile Liability $1,000,000 per accident for bodily injury and property damage.
(3) :RUNHUV¶&RPSHQVDWLRQ as required by the State of California.
(4) (PSOR\HU¶V/LDELOLW\ $1,000,000 per accident for bodily injury or disease.
c. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits which are applicable to a given loss shall be available to City. No representation is made that the minimum insurance requirements of this Contract are sufficient to cover the obligations of Contractor under this Contract.
d. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: the insurer shall reduce or eliminate such deductibles or self- insured retentions with respect to City, its officers, officials, agents and employees; or Contractor shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
e. Each policy of general liability and automotive liability insurance shall contain, or be endorsed to contain, the following provisions:
(1) City, its officers, officials, agents, and employees are declared to be additional insureds under the terms of the policy, with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of Contractor (any auto), and with respect to liability arising out of Work or operations performed by or on behalf of Contractor, including materials, parts or equipment furnished in connection with such Work or operations. A policy endorsement to that effect shall be provided to City along with the certificate of insurance. In lieu of an endorsement, City will accept a copy of the policy(ies) which evidences that City is an additional insured as a contracting party. The minimum coverage required by Subsection 12.b, above, shall apply to City as an additional insured.
(2) For any claims related to this Contract &RQWUDFWRU¶V LQVXUDQFH FRYHUDJH shall be primary insurance with respect to City, its officers, officials, agents and employees. Any insurance or self-insurance maintained by City, its officers, officials, agents and employees shall be excess of ContractRU¶VLQVXUDQFHDQGVKDOOQRWFRQWULEXWHZLWKLW
287
9 (3) C RYHUDJHVKDOOQRWEHFDQFHOHGH[FHSWDIWHUWKLUW\
GD\V¶SULRUZULWWHQ
notice has been provided to City.
f. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Article 12. The endorsements shall be on forms acceptable to City. All certificates and endorsements are to be received and approved by City before the Work commences. However, failure to do so shall not operate as a waiver of these insurance requirements. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications at any time.
g. All insurance procured and maintained by Contractor shall be issued by insurers admitted to conduct the pertinent line of insurance business in California and having a rating of Grade A or better and Class VII or better by the latest edition of Best Key Rating Guide.
h. Contractor shall immediately notify City if any required insurance lapses or is otherwise modified and cease performance of this Contract unless otherwise directed by City. In such a case, City may procure insurance or self-insure the risk and charge Contractor for such costs and any and all damages resulting therefrom by way of set-off from any sums owed Contractor.
i. Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide insurance, Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing insurance to either Contractor or City with respect to the services of Contractor herein, a waiver of any right to subrogation which any such insurer may acquire against City by virtue of the payment of any loss under such insurance. 7KH:RUNHUV¶&RPSHQVDWLRQSRO icy shall be endorsed with a waiver of subrogation in favor of City for all Work performed by Contractor, its employees, agents and subcontractors. Contractor shall obtain any other endorsement that may be necessary to effect this waiver of subrogation.
j. Contractor shall require and verify that all subcontractors maintain insurance meeting all of the requirements stated herein.
ARTICLE 13
Termination
City, acting through its City Manager or designee, reserves the right to terminate this Contract for any reason by giving five (5) GD\V¶ written notice of intent to terminate to Contractor.
Upon receipt of notice, Contractor shall immediately cease work, unless the notice provides otherwise. Should City terminate this Contract, City shall pay Contractor for services satisfactorily provided and all allowable reimbursements incurred to the date of termination in compliance with this Contract, unless such termination shall be for cause, in which event City may withhold any disputed compensation. City shall not be liable for any claim of lost profits.
288
10 ARTICLE 14
Maintenance and Inspection of Records
In accordance with generally accepted accounting principles, Contractor and its subcontractors shall maintain reasonably full and complete books, documents, papers, accounting UHFRUGV DQG RWKHU LQIRUPDWLRQ
FROOHFWLYHO\ WKH ³UHFRUGV´
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completion of services performed under this Contract. During the term of this Contract and for a period of three (3) years after termination or completion of this Contract, City shall have the right to inspect and/or audit Contractor's records pertaining to the performance of this Contract at Contractor's office. Contractor shall make available all such records for inspection or audit at it s RIILFHVGXULQJQRUPDOEXVLQHVVKRXUVDQGXSRQWKUHH
GD\V¶QRWLFHIURP&LW\DQGFRSLHVWKHUHRI
shall be furnished if requested.
ARTICLE 15
Compliance with Laws
a. Contractor shall be knowledgeable of and comply with all local, state and federal laws pertaining to the subject matter hereof or in any way regulating the activities undertaken by Contractor or any subcontractor hereunder.
b. Contractor represents and warrants that it:
(1) Has complied and shall at all times during the term of this Contract comply, in all respects, with all immigration laws, regulations, statutes, rules, codes, and orders, including, without limitation, the Immigration Reform and Control Act of 1986 (IRCA); and
(2) Has not and will not knowingly employ any individual to perform services under this Contract who is ineligible to work in the United States or under the terms of this Contract; and
(3) Has properly maintained, and shall at all times during the term of this Contract properly maintain, all related employment documentation records including, without limitation, the completion and maintenance of the Form I-9 for HDFKRI&RQWUDFWRU¶VHPSOR\HHV
and
(4) Has responded, and shall at all times during the term of this Contract respond, in a timely fashion to any government inspection requests relating to immigration law compliance and/or Form I-9 compliance and/or worksite enforcement by the Department of Homeland Security, the Department of Labor, or the Social Security Administration.
c. Contractor shall require all subcontractors and/or subconsultants to make the same representations and warranties required by this Article 15 when hired to perform services under this Contract.
d. Contractor shall, upon request of City, provide a list of all employees working under this Contract and shall provide, to the reasonable satisfaction of City, verification that all such 289
11 employees are eligible to work in the United States. All costs associated with such verification shall be borne by Contractor. Once such request has been made, Contractor may not change employees working under this Contract without written notice to City, accompanied by the verification required herein for such employees. Contractor shall require all subcontractors and/or sub-consultants to make the same verification when hired to perform services under this Contract.
e. If Contractor, or a subcontractor or subconsultant, knowingly employs an employee providing Work under this Contract who is not authorized to work in the United States, and/or fails to follow federal laws to determine the status of such employee, such shall constitute a material breach of this Contract and may be cause for immediate termination of this Contract by City.
f. Contractor shall indemnify and hold City, its officials and employees harmless for, of and from any loss, including but not limited to fines, penalties and corrective measures, City PD\VXVWDLQE\UHDVRQRI&RQWUDFWRU¶VIDLOXUHWRFRPSO\ZLWKVDLGODZVUXOHVDQGUHJXODWL ons in connection with the performance of this Contract.
ARTICLE 16
Governing Law and Venue
This Contract shall be construed in accordance with and governed by the laws of the State of California and Contractor shall submit to the jurisdiction of California courts. Venue for any dispute arising under this Contract shall be in Orange County, California.
ARTICLE 17
Integration and Amendment
a. This Contract constitutes the entire agreement of the parties. No other agreement, oral or written, pertaining to the Work to be performed under this Contract shall be of any force or effect unless it is in writing and signed by both parties. Any Work performed which is inconsistent with or in violation of the provisions of this Contract shall not be compensated.
b. Amendments to this Contract must be in writing and signed by both parties. The City Manager is authorized to execute amendments to this Contract up to the amounts specified in Chapter 3.08 of the Orange Municipal Code.
ARTICLE 18
Notice
Except as otherwise provided herein, all notices required under this Contract shall be in writing and delivered personally, by e-mail, or by first class mail, postage prepaid, to each party at the address listed below. Either party may change the notice address by notifying the other party in writing. Notices shall be deemed received upon receipt of same or within three (3) days of deposit in the U.S. Mail, whichever is earlier. Notices sent by e-mail shall be deemed received on the date of the e-mail transmission.
290
12 ³&2175$&725´ ³&,7<´
Diversified Thermal Services, LLC City of Orange
1220 N. Barsten Way 300 E. Chapman Avenue
Anaheim, CA 92806 Orange, CA 92866-1591
Attn: Craig Steinmetz Attn: Matthew Lorenzen
Telephone: 714-632-7401 Telephone: 714-532-6488
E-Mail: [email protected] E-Mail: [email protected]
ARTICLE 19
Claim Resolution
City and Contractor agree that the claim resolution process applicable to any claim by Contractor in connection with the Work provided herein shall be subject to the procedures set forth in California Public Contract Code Section 9204, attached hereto as Attachment No. 2, and incorporated herein by this reference.
ARTICLE 20
Counterparts
This Contract may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures transmitted via facsimile and electronic mail shall have the same effect as original signatures.
[Remainder of page intentionally left blank; signatures on next page] 291
13 ³&,7<´
CONTRACT, BONDS AND INSURANCE
APPROVED BY:
Melissa M. Crosthwaite
Senior Assistant City Attorney
CITY OF ORANGE, a municipal corporation
By:
Daniel R. Slater
Mayor of the City of Orange
ATTEST:
Pamela Coleman, City Clerk
³&2175$&725´
DIVERSIFIED THERMAL SERVICES, LLC,
a California corporation
[Note: Signature of Managing Member By:
or Person(s) Authorized to bind LLC is Printed Name:
(are) required] Title:
By:
Printed Name:
Title:
¥
292
Attachment No. 1
ATTACHMENT NO. 1
CALIFORNIA LABOR CODE
SECTIONS 1725.5, 1771, 1771.1, 1771.4, 1775, 1776, 1777.5, 1813 and 1815
Section 1725.5. Registration of contractors; mandatory registration; qualifications and application; fees; exempt contractors
A contractor shall be registered pursuant to this section to be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any public work contract that is subject to the requirements of this chapter. For the purposes of this section, ³FRQWUDFWRU´LQFOXGHVDVXEFRQWUDFWRUDVGHILQHGE\ Section 1722.1. (a) To qualify for registration under this section, a contractor shall do all of the following:
(1)(A) Register with the Department of Industrial Relations in the manner prescribed by the department and pay an initial nonrefundable application fee of four hundred dollars ($400) to qualify for registration under this section and an annual renewal fee on or before July 1 of each year thereafter. The annual rene wal fee shall be in a uniform amount set by the Director of Industrial Relations, and the initial registration and renewal fees may be adjusted no more than annually by the director to support the costs specified in Section 1771.3. (B) Beginning June 1, 2019, a contractor may register or renew according to this subdivision in annual increments up to three years from the date of registration. Contractors who wish to do so will be required to prepay the applicable nonrefundable application or renewal fees to qualify for the number of years for which they wish to preregister.
(2) Provide evidence, disclosures, or releases as are necessary to establish all of the following:
(A) Workers' compensation coverage that meets the requirements of Division 4 (commencing with Section 3200) and includes sufficient coverage for any worker whom the contractor employs to perform work that is subject to prevailing wage requirements other than a contractor who is separately registered under this section.
Coverage may be evidenced by a current and valid certificate of workers' compensation insurance or certification of self-insurance required under Section 7125 of the Business and Professions Code. (B) If applicable, the contractor is licensed in accordance with Chapter 9 (commencing with Section 7000) of the Business and Professions Code.
(C) The contractor does not have any delinquent liability to an employee or the state for any assessment of back wages or related damages, interest, fines, or penalties pursuant to any final judgment, order, or determination by a court or any federal, state, or local administrative agency, including a confirmed arbitration award. However, for purposes of this paragraph, the contractor shall not be disqualified for any judgment, order, or determination that is under appeal, provided that the contractor has secured the payment of any amount eventually found due through a bond or other appropriate means. (D) The contractor is not currently debarred under Section 1777.1 or under any other federal or state law providing for the debarment of contractors from public works. (E) The contractor has not bid on a public works contract, been listed in a bid proposal, or engaged in the performance of a contract for public works without being lawfully registered in accordance with this section, within the preceding 12 months or since the effective date of the requirements set forth in subdivision (e), whichever is earlier. If a contractor is found to be in violation of the requirements of this paragraph, the period of disqualification shall be waived if both of the following are true:
293
Attachment No. 1
(i) The contractor has not previously been found to be in violation of the requirements of this paragraph within the preceding 12 months.
(ii) The contractor pays an additional nonrefundable penalty registration fee of two thousand dollars ($2,000). (b) Fees received pursuant to this section shall be deposited in the State Public Works Enforcement Fund established by Section 1771.3 and shall be used only for the purposes specified in that section. (c) A contractor who fails to pay the renewal fee required under paragraph (1) of subdivision (a) on or before the expiration of any prior period of registration shall be prohibited from bidding on or engaging in the performance of any contract for public work until once again registered pursuant to this section. If the failure to pay the renewal fee was inadvertent, the contractor may renew its registration retroactively by paying an additional nonrefundable penalty renewal fee equal to the amount of the renewal fee within 90 days of the due date of the renewal fee.
(d) If, after a body awarding a contract accepts the contractor's bid or awards the contract, the work cove red by the bid or contract is determined to be a public work to which Section 1771 applies, either as the result of a determination by the director pursuant to Section 1773.5 or a court decision, the requirements of this section shall not apply, subject to the following requirements:
(1) The body that awarded the contract failed, in the bid specification or in the contract documents, to identify as a public work that portion of the work that the determination or decision subsequently classifies as a public work.
(2) Within 20 days following service of notice on the awarding body of a determination by the Director of Industrial Relations pursuant to Section 1773.5 or a decision by a court that the contract was for public work as defined in this chapter, the contractor and any subcontractors are registered under this section or are replaced by a contractor or subcontractors who are registered under this section. (3) The requirements of this section shall apply prospectively only to any subsequent bid, bid proposal, contract, or work performed after the awarding body is served with notice of the determination or decision referred to in paragraph (2).
(e) The requirements of this section shall apply to any bid proposal submitted on or after March 1, 2015, to any contract for public work, as defined in this chapter, executed on or after April 1, 2015, and to any work performed under a contract for public work on or after January 1, 2018, regardless of when the contract for public work was executed.
(f) This section does not apply to work performed on a public works project of twenty-five thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.
Section 1771. Payment of general prevailing rate
Except for public works projects of one thousand dollars ($1,000) or less, not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work fixed as provided in this chapter, shall be paid to all workers employed on public works.
This section is applicable only to work performed under contract, and is not applicable to work carried out by a public agency with its own forces. This section is applicable to contracts let for maintenance work. 294
Attachment No. 1
Section 1771.1. Registration as a contractor or subcontractor required prior to bid submissio n; exceptions; violations; penalties
(a) A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any co ntract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submi t a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.
(b) Notice of the requirement described in subdivision (a) shall be included in all bid invitations and public works contracts, and a bid shall not be accepted nor any contract or subcontract entered into without proof of the contractor or subcontractor's current registration to perform public work pursuant to Section 1725.5. (c) An inadvertent error in listing a subcontractor who is not registered pursuant to Section 1725.5 in a bid proposal shall not be grounds for filing a bid protest or grounds for considering the bid nonresponsive, provided that any of the following apply:
(1) The subcontractor is registered prior to the bid opening. (2) Within 24 hours after the bid opening, the subcontractor is registered and has paid the penalty registration fee specified in subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5. (3) The subcontractor is replaced by another registered subcontractor pursuant to Section 4107 of the Public Contract Code.
(d) Failure by a subcontractor to be registered to perform public work as required by subdivision (a) shall be grounds under Section 4107 of the Public Contract Code for the contractor, with the consent of the awarding authority, to substitute a subcontractor who is registered to perform public work pursuant to Section 1725.5 in place of the unregistered subcontractor.
(e) The department shall maintain on its Internet Web site a list of contractors who are currently registered to perform public work pursuant to Section 1725.5.
(f) A contract entered into with any contractor or subcontractor in violation of subdivision (a) shall be subject to cancellation, provided that a contract for public work shall not be unlawful, void, or voidable solely due to the failure of the awarding body, contractor, or any subcontractor to comply with the requirements of Section 1725.5 or this section.
(g) If the Labor Commissioner or his or her designee determines that a contractor or subcontractor engaged in the performance of any public work contract without having been registered in accordance with this section, the contractor or subcontractor shall forfeit, as a civil penalty to the state, one hundred dollars ($100) for each day of work performed in violation of the registration requirement, not to exceed an aggregate penalty of eight thousand dollars ($8,000) in addition to any penalty registration fee assessed pursuant to clause (ii) of subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5. (h)(1) In addition to, or in lieu of, any other penalty or sanction authorized pursuant to this chapter, a higher tiered public works contractor or subcontractor who is found to have entered into a subcontract with an unregistered lower tier subcontractor to perform any public work in violation of the requirements of Section 1725.5 or this section shall be subject to forfeiture, as a civil penalty to the state, of one hundred dollars ($100) 295
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for each day the unregistered lower tier subcontractor performs work in violation of the registration requirement, not to exceed an aggregate penalty of ten thousand dollars ($10,000). (2) The Labor Commissioner shall use the same standards specified in subparagraph (A) of paragraph (2) of subdivision (a) of Section 1775 when determining the severity of the violation and what penalty to assess, and may waive the penalty for a first time violation that was unintentional and did not hinder the Labor Commissioner's ability to monitor and enforce compliance with the requirements of this chapter. (3) A higher tiered public works contractor or subcontractor shall not be liable for penalties assessed pursuant to paragraph (1) if the lower tier subcontractor's performance is in violation of the requirements of Section 1725.5 due to the revocation of a previously approved registration. (4) A subcontractor shall not be liable for any penalties assessed against a higher tiered public works contractor or subcontractor pursuant to paragraph (1). A higher tiered public works contractor or subcontractor may not require a lower tiered subcontractor to indemnify or otherwise be liable for any penalties pursuant to paragraph (1).
(i) The Labor Commissioner or his or her designee shall issue a civil wage and penalty assessment, in accordance with the provisions of Section 1741, upon determination of penalties pursuant to subdivision (g) and subparagraph (B) of paragraph (1) of subdivision (h). Review of a civil wage and penalty assessment issued under this subdivision may be requested in accordance with the provisions of Section 1742. The regulations of the Director of Industrial Relations, which govern proceedings for review of civil wage and penalty assessments and the withholding of contract payments under Article 1 (commencing with Section 1720) and Article 2 (commencing with Section 1770), shall apply. (j)(1) Where a contractor or subcontractor engages in the performance of any public work contract without having been registered in violation of the requirements of Section 1725.5 or this section, the Labor Commissioner shall issue and serve a stop order prohibiting the use of the unregistered contractor or the unregistered subcontractor on all public works until the unregistered contractor or unregistered subcontractor is registered. The stop order shall not apply to work by registered contractors or subcontractors on the public work.
(2) A stop order may be personally served upon the contractor or subcontractor by either of the following methods:
(A) Manual delivery of the order to the contractor or subcontractor personally. (B) Leaving signed copies of the order with the person who is apparently in charge at the site of the public work and by thereafter mailing copies of the order by first class mail, postage prepaid to the contractor or subcontractor at one of the following:
(i) The address of the contractor or subcontractor on file with either the Secretary of State or the Contractors' State License Board.
(ii) If the contractor or subcontractor has no address on file with the Secretary of State or the Contractors' State License Board, the address of the site of the public work. (3) The stop order shall be effective immediately upon service and shall be subject to appeal by the party contracting with the unregistered contractor or subcontractor, by the unregistered contractor or subcontractor, or both. The appeal, hearing, and any further review of the hearing decision shall be governed by the procedures, time limits, and other requirements specified in subdivision (a) of Section 238.1. 296
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(4) Any employee of an unregistered contractor or subcontractor who is affected by a work stoppage ordered by the commissioner pursuant to this subdivision shall be paid at his or her regular hourly prevailing wage rate by that employer for any hours the employee would have worked but for the work stoppage, not to exceed 10 days.
(k) Failure of a contractor or subcontractor, owner, director, officer, or managing agent of the contractor or subcontractor to observe a stop order issued and served upon him or her pursuant to subdivision (j) is guilty of a misdemeanor punishable by imprisonment in county jail not exceeding 60 days or by a fine not exceeding ten thousand dollars ($10,000), or both.
(l) This section shall apply to any bid proposal submitted on or after March 1, 2015, and any contract for public work entered into on or after April 1, 2015. This section shall also apply to the performance of any public work, as defined in this chapter, on or after January 1, 2018, regardless of when the contract for public work was entered.
(m) Penalties received pursuant to this section shall be deposited in the State Public Works Enforcement Fund established by Section 1771.3 and shall be used only for the purposes specified in that section. (n) This section shall not apply to work performed on a public works project of twenty-five thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.
Section 1771.4. Additional requirements when bidding and awarding public works contracts
(a) All of the following are applicable to all public works projects that are otherwise subject to the requirements of this chapter:
(1) The call for bids and contract documents shall specify that the project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. (2) The awarding body shall post or require the prime contractor to post job site notices, as prescribed by regulation.
(3) Each contractor and subcontractor shall furnish the records specified in Section 1776 directly to the Labor Commissioner, in the following manner:
(A) At least monthly or more frequently if specified in the contract with the awarding body. (B) In a format prescribed by the Labor Commissioner.
(4) If the contractor or subcontractor is not registered pursuant to Section 1725.5 and is performing work on a project for which registration is not required because of subdivision (f) of Section 1725.5, the unregiste red contractor or subcontractor is not required to furnish the records specified in Section 1776 directly to the Labor Commissioner but shall retain the records specified in Section 1776for at least three years after completion of the work.
(5) The department shall undertake those activities it deems necessary to monitor and enforce compliance with prevailing wage requirements.
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(b) The Labor Commissioner may exempt a public works project from compliance with all or part of the requirements of subdivision (a) if either of the following occurs:
(1) The awarding body has enforced an approved labor compliance program, as defined in Section 1771.5, on all public works projects under its authority, except those deemed exempt pursuant to subdivision (a) of Section 1771.5, continuously since December 31, 2011.
(2) The awarding body has entered into a collective bargaining agreement that binds all contractors performing work on the project and that includes a mechanism for resolving disputes about the payment of wages. (c) The requirements of paragraph (1) of subdivision (a) shall only apply to contracts for public works projects awarded on or after January 1, 2015.
(d) The requirements of paragraph (3) of subdivision (a) shall apply to all contracts for public work, whether new or ongoing, on or after January 1, 2016.
Section 1775. Penalties for violations
(a)(1) The contractor and any subcontractor under the contractor shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rates as determined by the director for the work or craft in which the worker is employed for any public work done under the contract by the contractor or, except as provided in subdivision (b), by any subcontractor under the contractor.
(2)(A) The amount of the penalty shall be determined by the Labor Commissioner based on consideration of both of the following:
(i) Whether the failure of the contractor or subcontractor to pay the correct rate of per diem wages was a good faith mistake and, if so, the error was promptly and voluntarily corrected when brought to the attention of the contractor or subcontractor.
(ii) Whether the contractor or subcontractor has a prior record of failing to meet its prevailing wage obligations.
(B)(i) The penalty may not be less than forty dollars ($40) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, unless the failure of the contractor or subcontractor to pay the correct rate of per diem wages was a good faith mistake and, if so, the error was promptly and voluntarily corrected when brought to the attention of the contractor or subcontractor. (ii) The penalty may not be less than eighty dollars ($80) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, if the contractor or subcontractor has been assessed penalties within the previous three years for failing to meet its prevailing wage obligations on a separate contract, unless those penalties were subsequently withdrawn or overturned. (iii) The penalty may not be less than one hundred twenty dollars ($120) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, if the Labor Commissioner determines that the violation was willful, as defined in subdivision (c) of Section 1777.1. (C) If the amount due under this section is collected from the contractor or subcontractor, any outstanding wage claim under Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 against that contractor 298
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or subcontractor shall be satisfied before applying that amount to the penalty imposed on that contractor or subcontractor pursuant to this section.
(D) The determination of the Labor Commissioner as to the amount of the penalty shall be reviewable only for abuse of discretion.
(E) The difference between the prevailing wage rates and the amount paid to each worker fo r 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 or subcontractor, and the body awarding the contract shall cause to be inserted in the contract a stipulation that this section will be complied with. (b) If a worker employed by a subcontractor on a public works project is not paid the general prevai ling rate of per diem wages by the subcontractor, the prime contractor of the project is not liable for any penalties under subdivision (a) unless the prime contractor had knowledge of that failure of the subcontractor to pay the specified prevailing rate of wages to those workers or unless the prime contractor fails to comply with all of the following requirements:
(1) The contract executed between the contractor and the subcontractor for the performance of work on the public works project shall include a copy of the provisions of this section and Sections 1771, 1776, 1777.5, 1813, and 1815.
(2) The contractor shall monitor the payment of the specified general prevailing rate of per diem wages by the subcontractor to the employees, by periodic review of the certified payroll records of the subcontractor. (3) Upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages, the contractor shall diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor for work performed on the public works project. (4) Prior to making final payment to the subcontractor for work performed on the public works project, the contractor shall obtain an affidavit signed under penalty of perjury from the subcontractor that the subcontractor has paid the specified general prevailing rate of per diem wages to his or her employees on the public works project and any amounts due pursuant to Section 1813. (c) The Division of Labor Standards Enforcement shall notify the contractor on a public works project within 15 days of the receipt by the Division of Labor Standards Enforcement of a complaint of the failure of a subcontractor on that public works project to pay workers the general prevailing rate of per diem wages.
Section 1776. Payroll records; retention; inspection; redacted information; agencies entitled to receive nonredacted copies of certified records; noncompliance penalties; rules
(a) Each contractor and subcontractor shall keep accurate payroll records, showing the name, address, social security number, work classification, 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 him or her in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
(1) The information contained in the payroll record is true and correct. (2) The employer has complied with the requirements of Sections 1771, 1811, and 1815 for any work performed by his or her employees on the public works project. 299
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(b) The payroll records enumerated under subdivision (a) shall be certified and shall be available for inspection at all reasonable hours at the principal office of the contractor on the following basis:
(1) A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or his or her authorized representative on request. (2) A certified copy of all payroll records enumerated in subdivision (a) shall be made available for inspection or furnished upon request to a representative of the body awarding the contract and the Division of Labor Standards Enforcement of the Department of Industrial Relations. (3) A certified copy of all payroll records enumerated in subdivision (a) shall be made available upon request by the public for inspection or for copies thereof. However, a request by the public shall be made through either the body awarding the contract or the Division of Labor Standards Enforcement. If the requested payroll records have not been provided pursuant to paragraph (2), the requesting party shall, prior to being provided the records, reimburse the costs of preparation by the contractor, subcontractors, and the entity through which the request was made. The public may not be given access to the records at the principal office of the contractor.
(c) Unless required to be furnished directly to the Labor Commissioner in accordance with paragraph (3) of subdivision (a) of Section 1771.4, the certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement or shall contain the same information as the forms provided by the division.
The payroll records may consist of printouts of payroll data that are maintained as computer records, if the printouts contain the same information as the forms provided by the division and the printouts are verified in the manner specified in subdivision (a).
(d) A contractor or subcontractor shall file a certified copy of the records enumerated in subdivision (a) with the entity that requested the records within 10 days after receipt of a written request. (e) Except as provided in subdivision (f), any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by the awarding body or the Division of Labor Standards Enforcement shall be marked or obliterated to prevent disclosure of an individual's name, address, and social security number. The name and address of the contractor awarded the contract or the subcontractor performing the contract shall not be marked or obliterated. Any copy of records made available for inspection by, or furnished to, a multiemployer Taft-Hartley trust fund (29 U.S.C. Sec. 186(c)(5)) that requests the records for the purposes of allocating contributions to participants shall be marked or obliterated only to prevent disclosure of an individual's full social security number, but shall provide the last four digits of the social security number. Any copy of records made available for inspection by, or furnished to, a joint labor- management committee established pursuant to the federal Labor Management Cooperation Act of 1978 (29 U.S.C. Sec. 175a) shall be marked or obliterated only to prevent disclosure of an individual's social security number.
(f)(1) Notwithstanding any other provision of law, agencies that are included in the Joint Enforcement Strike Force on the Underground Economy established pursuant to Section 329 of the Unemployment Insurance Code and other law enforcement agencies investigating violations of law shall, upon request, be provided nonredacted copies of certified payroll records. Any copies of records or certified payroll made available for inspection and furnished upon request to the public by an agency included in the Joint Enforcement Strike Force on the Underground Economy or to a law enforcement agency investigating a violation of law shall be marked or redacted to prevent disclosure of an individual's name, address, and social security number. 300
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(2) An employer shall not be liable for damages in a civil action for any reasonable act or omissi on taken in good faith in compliance with this subdivision.
(g) The contractor shall inform the body awarding the contract of the location of the records enumerated under subdivision (a), including the street address, city, and county, and shall, within five working days, provide a notice of a change of location and address.
(h) The contractor or subcontractor has 10 days in which to comply subsequent to receipt of a written notice requesting the records enumerated in subdivision (a). In the event that the contractor or subcontractor fails to comply within the 10-day period, he or she shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Labor Standards Enforcement, these penalties shall be withheld from progress payments then due. A contractor is not subject to a penalty assessment pursuant to this section due to the failure of a subcontractor to comply with this section.
(i) The body awarding the contract shall cause to be inserted in the contract stipulations to effectuate this section.
(j) The director shall adopt rules consistent with the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and the Information Practices Act of 1977 (Title 1.8 (commencing with Section 1798) of Part 4 of Division 3 of the Civil Code) governing the release of these records, including the establishment of reasonable fees to be charged for reproducing copies of records required by this section.
Section 1777.5. Employment of registered apprentices; wages; standards; number; appren ticeable craft or trade; exemptions; contributions; compliance program
(a)(1) This chapter does not prevent the employment upon public works of properly registered apprentices who are active participants in an approved apprenticeship program.
)RU SXUSRVHV RI WKLV FKDSWHU ³DSSUHQWLFHVKLS SURJUDP´ PHDQV D SURJUDP XQGHU WKH MXULVGLFWLRQ RI WKH California Apprenticeship Council established pursuant to Section 3070. (b)(1) Every apprentice employed upon public works shall be paid the prevailing rate of per diem wages fo r apprentices in the trade to which he or she is registered and shall be employed only at the work of the craft or trade to which he or she is registered.
(2) Unless otherwise provided by a collective bargaining agreement, when a contractor requests the dispatch of an apprentice pursuant to this section to perform work on a public works project and requires the apprentice to fill out an application or undergo testing, training, an examination, or other preemployment process as a condition of employment, the apprentice shall be paid for the time spent on the required preemployment activity, including travel time to and from the required activity, if any, at the prevailing rate of per diem wages for apprentices in the trade to which he or she is registered. Unless otherwise provided by a coll ective bargaining agreement, a contractor is not required to compensate an apprentice for the time spent on preemployment activities if the apprentice is required to take a preemployment drug or alcohol test and he or she fails to pass that test.
(c) Only apprentices, as defined in Section 3077, who are in training under apprenticeship standards that have been approved by the Chief of the Division of Apprenticeship Standards and who are parties to written 301
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apprentice agreements under Chapter 4 (commencing with Section 3070) of Division 3 are eligible to be employed at the apprentice wage rate on public works. The employment and training of each apprentice shall be in accordance with either of the following:
(1) The apprenticeship standards and apprentice agreements under which he or she is training. (2) The rules and regulations of the California Apprenticeship Council. (d) If the contractor to whom the contract is awarded by the state or any political subdivision, in performing any of the work under the contract, employs workers in any apprenticeable craft or trade, the contractor shall employ apprentices in at least the ratio set forth in this section and may apply to any apprenticeship program in the craft or trade that can provide apprentices to the site of the public work for a certificate appr oving the contractor under the apprenticeship standards for the employment and training of apprentices in the area or industry affected. However, the decision of the apprenticeship program to approve or deny a certificate shall be subject to review by the Administrator of Apprenticeship. The apprenticeship program or programs, upon approving the contractor, shall arrange for the dispatch of apprentices to the contractor. A contractor covered by an apprenticeship program's standards shall not be required to submit any additional application in order to include additional public works contracts under that program. ³$SSUHQWLFHDEOHFUDIWRUWUDGH´DVXVHGLQ this section, means a craft or trade determined as an apprenticeable occupation in accordance with rules and regulations prescribed by the California Apprenticeship Council. $V XVHG LQ WKLV VHFWLRQ ³FRQWUDFWRU´ includes any subcontractor under a contractor who performs any public works not excluded by subdivision (o).
(e) Before commencing work on a contract for public works, every contractor shall submit contract award information to an applicable apprenticeship program that can supply apprentices to the site of the public work.
The information submitted shall include an estimate of journeyman hours to be performed under the contract, the number of apprentices proposed to be employed, and the approximate dates the apprentices would be employed. A copy of this information shall also be submitted to the awarding body, if requested by the awarding body. Within 60 days after concluding work on the contract, each contractor and subcontractor shall submit to the awarding body, if requested, and to the apprenticeship program a verified statement of the journeyman and apprentice hours performed on the contract. The information under this subdivision shall be public. The apprenticeship programs shall retain this information for 12 months. (f) The apprenticeship program supplying apprentices to the area of the site of the public work shall ensure equal employment and affirmative action in apprenticeship for women and minorities. (g) The ratio of work performed by apprentices to journeymen employed in a particular craft or trade on the public work may be no higher than the ratio stipulated in the apprenticeship standards under which the apprenticeship program operates if the contractor agrees to be bound by those standards. However, except as otherwise provided in this section, in no case shall the ratio be less than one hour of apprentice work for every five hours of journeyman work.
(h) This ratio of apprentice work to journeyman work shall apply during any day or portion of a day when any journeyman is employed at the jobsite and shall be computed on the basis of the hours worked during the day by journeymen so employed. Any work performed by a journeyman in excess of eight hours per day or 40 hours per week shall not be used to calculate the ratio. The contractor shall employ apprentices for the number of hours computed as above before the end of the contract or, in the case of a subcontractor, before the end of the subcontract. However, the contractor shall endeavor, to the greatest extent possible, to employ apprentices during the same time period that the journeymen in the same craft or trade are employed at the jobsite. When an hourly apprenticeship ratio is not feasible for a particular craft or trade, the Administrator 302
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of Apprenticeship, upon application of an apprenticeship program, may order a minimum ratio of not less than one apprentice for each five journeymen in a craft or trade classification. (i) A contractor covered by this section who has agreed to be covered by an apprenticeship program's standards upon the issuance of the approval certificate, or who has been previously approved for an apprenticeship program in the craft or trade, shall employ the number of apprentices or the ratio of apprentices to journeymen stipulated in the applicable apprenticeship standards, but in no event less than the 1-to-5 ratio required by subdivision (g).
(j) Upon proper showing by a contractor that he or she employs apprentices in a particular craft or trade in the state on all of his or her contracts on an annual average of not less than one hour of apprentice work for every five hours of labor performed by journeymen, the Administrator of Apprenticeship may grant a certificate exempting the contractor from the 1-to-5 hourly ratio, as set forth in this section for that craft or trade. (k) An apprenticeship program has the discretion to grant to a participating contractor or contractor association a certificate, which shall be subject to the approval of the Administrator of Apprenticeship, exempting the contractor from the 1-to-5 ratio set forth in this section when it finds that any one of the following conditions is met:
(1) Unemployment for the previous three-month period in the area exceeds an average of 15 percent. (2) The number of apprentices in training in the area exceeds a ratio of 1 to 5. (3) There is a showing that the apprenticeable craft or trade is replacing at least one-thirtieth of its journeymen annually through apprenticeship training, either on a statewide basis or on a local basis. (4) Assignment of an apprentice to any work performed under a public works contract would create a condition that would jeopardize his or her life or the life, safety, or property of fellow employees or the public at large, or the specific task to which the apprentice is to be assigned is of a nature that training cannot be provided by a journeyman.
(l) If an exemption is granted pursuant to subdivision (k) to an organization that represents contractors in a specific trade from the 1-to-5 ratio on a local or statewide basis, the member contractors shall not be required to submit individual applications for approval to local joint apprenticeship committees, if they are already covered by the local apprenticeship standards.
(m)(1) A contractor to whom a contract is awarded, who, in performing any of the work under the contract, employs journeymen or apprentices in any apprenticeable craft or trade shall contribute to the Califor nia Apprenticeship Council the same amount that the director determines is the prevailing amount of apprenticeship training contributions in the area of the public works site. A contractor may take as a credit for payments to the council any amounts paid by the contractor to an approved apprenticeship program that can supply apprentices to the site of the public works project. The contractor may add the amount of the contributions in computing his or her bid for the contract. (2)(A) At the conclusion of the 2002-03 fiscal year and each fiscal year thereafter, the Califor nia Apprenticeship Council shall distribute training contributions received by the council under this subdivision, less the expenses of the Department of Industrial Relations for administering this subdivision, by making grants to approved apprenticeship programs for the purpose of training apprentices. The grant funds shall be distributed as follows:
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(i) If there is an approved multiemployer apprenticeship program serving the same craft or trade and geographic area for which the training contributions were made to the council, a grant to that program shall be made.
(ii) If there are two or more approved multiemployer apprenticeship programs serving the same craft or trade and county for which the training contributions were made to the council, the grant shall be divided among those programs based on the number of apprentices from that county registered in each program. (iii) All training contributions not distributed under clauses (i) and (ii) shall be used to defray the future expenses of the Department of Industrial Relations for the administration and enforcement of apprenticeship and preapprenticeship standards and requirements under this code. (B) An apprenticeship program shall only be eligible to receive grant funds pursuant to this subdivision if the apprenticeship program agrees, prior to the receipt of any grant funds, to keep adequate records that document the expenditure of grant funds and to make all records available to the Department of Industrial Relations so that the Department of Industrial Relations is able to verify that grant funds were used solely for training apprentices. For purposes of this subparagraph, adequate records include, but are not limited to, invoices, receipts, and canceled checks that account for the expenditure of grant funds. This subparagraph shall not be deemed to require an apprenticeship program to provide the Department of Industrial Relations with more documentation than is necessary to verify the appropriate expenditure of grant funds made pursuant to this subdivision.
(C) The Department of Industrial Relations shall verify that grants made pursuant to this subdivision are used solely to fund training apprentices. If an apprenticeship program is unable to demonstrate how grant funds are expended or if an apprenticeship program is found to be using grant funds for purposes other than training apprentices, then the apprenticeship program shall not be eligible to receive any future grant pursuant to this subdivision and the Department of Industrial Relations may initiate the process to rescind the registration of the apprenticeship program.
(3) All training contributions received pursuant to this subdivision shall be deposited in the Apprenticeship Training Contribution Fund, which is hereby created in the State Treasury. Upon appropriation by the Legislature, all moneys in the Apprenticeship Training Contribution Fund shall be used for the purpose of carrying out this subdivision and to pay the expenses of the Department of Industrial Relations. (n) The body awarding the contract shall cause to be inserted in the contract stipulations to effectuate this section. The stipulations shall fix the responsibility of compliance with this section for all apprenticeable occupations with the prime contractor.
(o) This section does not apply to contracts of general contractors or to contracts of specialty contractors not bidding for work through a general or prime contractor when the contracts of general contractors or those specialty contractors involve less than thirty thousand dollars ($30,000). (p) An awarding body that implements an approved labor compliance program in accordance with subdivision (b) of Section 1771.5 may, with the approval of the director, assist in the enforcement of this section under the terms and conditions prescribed by the director.
Section 1813. Forfeiture for violations; contract stipulation; report of violations
The contractor or subcontractor shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit twenty- five dollars ($25) for each worker employed in the executi on of 304
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the contract by the respective contractor or subcontractor for each calendar day during which the worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of this article. In awarding any contract for public work, the awarding body shall cause to be inserted in the contract a stipulation to this effect. The awarding body shall take cognizance of all violations of this article committed in the course of the execution of the contract, and shall report them to the Division of Labor Standards Enforcement.
Section 1815. Overtime
Notwithstanding the provisions of Sections 1810 to 1814, inclusive, of this code, and notwithstanding any stipulation inserted in any contract pursuant to the requirements of said sections, work performed by employees of contractors in excess of 8 hours per day, and 40 hours during any one week, shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than 1 ½ times the basic rate of pay.
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ATTACHMENT NO. 2
CALIFORNIA PUBLIC CONTRACT CODE SECTION 9204
Section 9204. Legislative findings and declarations regarding timely and complete payment of contractors for public works projects; claims process (Eff: January 1, 2017)
(a) The Legislature finds and declares that it is in the best interests of the state and its citizens to ensure that all construction business performed on a public works project in the state that is complete and not in dispute is paid in full and in a timely manner.
(b) Notwithstanding any other law, including, but not limited to, Article 7.1 (commencing with Section 10240) of Chapter 1 of Part 2, Chapter 10 (commencing with Section 19100) of Part 2, and Article 1.5 (commencing with Section 20104) of Chapter 1 of Part 3, this section shall apply to any claim by a contractor in connection with a public works project.
(c) For purposes of this section:
³&ODLP´PHDQVDVHSDUDWHGHPDQGE\DFRQWUDFWRUVHQWE\UHJLVWHUHGPDLORUFHUWLILHGPDLOZLWKUHWXUQ receipt requested, for one or more of the following:
(A) A time extension, including, without limitation, for relief from damages or penalties for delay assessed by a public entity under a contract for a public works project. (B) Payment by the public entity of money or damages arising from work done by, or on behalf of, the contractor pursuant to the contract for a public works project and payment for which is not otherwise expressly provided or to which the claimant is not otherwise entitled. (C) Payment of an amount that is disputed by the public entity.
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7000) of Division 3 of the Business and Professions Code who has entered into a direct contract with a public entity for a public works project.
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department, office, division, bureau, board, or commission, the California State University, the University of California, a city, including a charter city, county, including a charter county, city and county, including a charter city and county, district, special district, public authority, political subdivision, public corporation, or nonprofit transit corporation wholly owned by a public agency and formed to carry out the purposes of the public agency.
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(i) The Department of Water Resources as to any project under the jurisdiction of that department. (ii) The Department of Transportation as to any project under the jurisdiction of that department. (iii) The Department of Parks and Recreation as to any project under the jurisdiction of that department. (iv) The Department of Corrections and Rehabilitation with respect to any project under its jurisdiction pursuant to Chapter 11 (commencing with Section 7000) of Title 7 of Part 3 of the Penal Code. 306
Attachment No. 2
(v) The Military Department as to any project under the jurisdiction of that department. (vi) The Department of General Services as to all other projects. (vii) The High-Speed Rail Authority.
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7000) of Division 3 of the Business and Professions Code who either is in direct contract with a contractor or is a lower tier subcontractor.
(d)(1)(A) Upon receipt of a claim pursuant to this section, the public entity to which the claim applies shall conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall provide the claimant a written statement identifying what portion of the claim is disputed and what portion is undisputed. Upon receipt of a claim, a public entity and a contractor may, by mutual agreement, extend the time period provided in this subdivision.
(B) The claimant shall furnish reasonable documentation to support the claim. (C) If the public entity needs approval from its governing body to provide the claimant a written statement identifying the disputed portion and the undisputed portion of the claim, and the 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 public entity shall have up to three da ys following the next duly publicly noticed meeting of the governing body after the 45-day period, or extension, expires to provide the claimant a written statement identifying the disputed portion and the undisputed portion. (D) Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. If the public entity fails to issue a written statement, paragraph (3) shall apply.
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,IWKHFODLPDQWGLVSXWHVWKHSXEOLFHQWLW\¶VZULWWHQUHVSRQVHRULIWKHSXEOLFHQWLW\IDLOVWRUHVSRQGWRD claim issued pursuant to this section within the time prescribed, the claimant may demand in writing an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand in writing sent by registered mail or certified mail, return receipt requested, the public entity shall schedule a meet and confer conference within 30 days for settlement of the dispute. (B) 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 public entity shall provide the claimant 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 public entity 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 public entity and the claimant sharing the associated costs equally. The public entity and claimant shall mutually agree to a mediator within 10 business days after the disputed portion of the claim has been identified in writing. 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. If mediation is unsuccessful, the parts of the claim remaining in dispute shall be subject to applicable procedures outside this section. 307
Attachment No. 2