Agenda packet, regular meeting — Palm Desert City Council, December 14, 2023 (part 4 of 5)

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Permits
Any other documents contained in or incorporated into the Contract The Contractor shall complete the Work in strict accordance with all of the Contract Documents.

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

ARTICLE 6. PROVISIONS REQUIRED BY LAW AND CONTRACTOR COMPLIANCE.

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

ARTICLE 7. INDEMNIFICATION AND INSURANCE
A. Indemnification

1. To the fullest extent permitted by law, Contractor shall immediately defend (with counsel of the City’s choosing), indemnify and hold harmless the City, its officials, officers, agents, employees, and representatives, and each of them from and against:
(a) Any and all claims, demands, causes of action, costs, expenses, injuries, losses or liabilities, in law or in equity, of every kind or nature whatsoever, but not limited to, injury to or death, including wrongful death, of any person, and damages to or destruction of property of any person, arising out of, related to, or in any manner directly or indirectly connected with the Work or this Contract, including claims made by subcontractors for nonpayment, including without limitation the payment of all consequential damages and attorney’s fees and other related costs and expenses, however caused, regardless of whether the allegations are false, fraudulent, or groundless, and regardless of any negligence of the City or its officers, employees, or authorized volunteers (including passive negligence), except the sole negligence or willful misconduct or active negligence of the City or its officials, officers, employees, or authorized volunteers;
(b) Contractor’s defense and indemnity obligation herein includes, but is not limited to damages, fines, penalties, attorney’s fees and costs arising from claims under the Americans with Disabilities Act (ADA) or other federal or state disability access or discrimination laws arising from Contractor’s Work during the course of construction of the improvements or after the Work is complete, as the result of defects or negligence in Contractor’s construction of the improvements;
(c) Any and all actions, proceedings, damages, costs, expenses, fines, penalties or liabilities, in law or equity, of every kind or nature whatsoever, arising out of,

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resulting from, or on account of the violation of any governmental law or regulation, compliance with which is the responsibility of Contractor; (d) Any and all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense which any of them may incur with respect to the failure, neglect, or refusal of Contractor to faithfully perform the Work and all of Contractor’s obligations under Contract.

Such costs, expenses, and damages shall include all costs, including attorney’s fees, incurred by the indemnified parties in any lawsuit to which they are a party.

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

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

B. Insurance

1. Without limiting Contractor’s indemnification of City, and prior to commencement of Work, Contractor shall obtain, provide and maintain at its own expense during the term of this Contract, policies of insurance of the type and amounts described below and in a form that is satisfactory to City.

2. General Liability Insurance. Contractor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and property damage, and a $4,000,000 completed operations aggregate. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.

3. Automobile Liability Insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with Work to be performed under this Contract, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.

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4. Umbrella or Excess Liability Insurance. Contractor may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Contractor may obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability, automotive liability and employer’s liability. Such policy or policies shall include the following terms and conditions:

A drop down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
(a) Pay on behalf of wording as opposed to reimbursement; and (b) Concurrency of effective dates with primary policies; and (c) Policies shall “follow form” to the underlying primary policies; and (d) Insureds under primary policies shall also be insureds under the umbrella or excess policies.

5. Workers’ Compensation Insurance. Contractor shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000) for Contractor’s employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, Contractor shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor’s employees. Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City, its officers, agents, employees and volunteers.

6. Pollution Liability Insurance. Environmental Impairment Liability Insurance shall be written on a Contractor’s Pollution Liability form or other form acceptable to the City providing coverage for liability arising out of sudden, accidental and gradual pollution and remediation. The policy limit shall be no less than $1,000,000 dollars per claim and in the aggregate. All activities contemplated in this Contract shall be specifically scheduled on the policy as “covered operations.” The policy shall provide coverage for the hauling of waste from the Project site to the final disposal location, including non-owned disposal sites.

7. Builder’s Risk Insurance. Reserved.

C.Other Provisions or Requirements

1. Proof of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at

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all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time.

2. Duration of Coverage. Contractor shall procure and maintain for the duration of the 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 by Contractor, its agents, representatives, employees or subcontractors.

Contractor must maintain general liability and umbrella or excess liability insurance for as long as there is a statutory exposure to completed operations claims. The City and its officers, officials, employees, and agents shall continue as additional insureds under such policies.

3. Primary/Non-Contributing. Coverage provided by Contractor shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

4. Products/Completed Operations Coverage. Products/completed operations coverage shall extend a minimum of three (3) years after project completion.

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

5. City’s Rights of Enforcement. In the event any policy of insurance required under this Contract does not comply with these requirements, or is canceled and not replaced, City has the right, but not the duty, to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Contractor, or City will withhold amounts sufficient to pay premium from Contractor payments. In the alternative, City may cancel this Contract.

6. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.

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with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against the City, its elected or appointed officers, agents, officials, employees and volunteers and shall require similar written express waivers and insurance clauses from each of its subcontractors.

8. Enforcement of Contract Provisions (non estoppel). Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.

9. Requirements Not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

10. Notice of Cancellation. Contractor agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) Day notice of cancellation (except for nonpayment for which a ten (10) Day notice is required) or nonrenewal of coverage for each required coverage.

11. Additional Insured Status. General liability, automobile liability, and if applicable, pollution liability policies shall provide or be endorsed to provide that the City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies. Coverage shall be at least as broad as coverage provided by ISO’s Owners, Lessees, or Contractors Additional Insured Endorsement for the ongoing (i.e. ISO Form CG 20 10 07 04) and completed operations (i.e. ISO Form CG 20 37 07 04) of Contractor.

12. Prohibition of Undisclosed Coverage Limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing.

13. Separation of Insureds. A severability of interests provision must apply for all additional insureds ensuring that Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.

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coverage is provided in conformity with the requirements of this section. Contractor agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the Project will be submitted to City for review.

15. City’s Right to Revise Requirements. The City or its Risk Manager reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Contractor ninety (90) Days advance written notice of such change. If such change results in substantial additional cost to the Contractor, the City and Contractor may renegotiate Contractor’s compensation.

If the City reduces the insurance requirements, the change shall go into effect immediately and require no advanced written notice.

16. Self-Insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City.

17. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor’s performance under this Contract, and that involve or may involve coverage under any of the required liability policies.

18. Additional Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work.

19. Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions, where applicable, shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.

ARTICLE 8. PREVAILING WAGES.

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

ARTICLE 9. FALSE CLAIMS.

Contractor acknowledges that if a false claim is submitted to the City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that the False Claims Act, California Government Code sections 12650, et seq., provides

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for civil penalties where a person knowingly submits a false claim to a public entity.

These provisions include within their scope false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of the information. In the event the City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorneys’ fees.

Contractor hereby acknowledges that the filing of a false claim may the Contractor to an administrative debarment proceeding wherein Contractor may be prevented from further bidding on public contracts for a period of up to five (5) years. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]

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

CITY OF PALM DESERT
By:

L. Todd Hileman, City Manager
ATTEST:

By:

Anthony J Mejia
City Clerk
APPROVED AS TO FORM:

By:

Best Best & Krieger LLP
City Attorney

THE VAN DYKE CORPORATION
By:

Its:

Printed
Name:

By:

Its:

Printed
Name:
________________565576_______________
Contractor’s License Number and
Classification
______________1000004163_____________
DIR Registration Number
(CONTRACTOR’S SIGNATURE MUST BE

NOTARIZED AND CORPORATE

SEAL AFFIXED, IF APPLICABLE)

END OF CONTRACT

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

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

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

WITNESS my hand and official seal.

Signature of Notary Public

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

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

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above

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BOND FORMS
Performance Bond
KNOW ALL PERSONS BY THESE PRESENTS:

THAT WHEREAS, the City of Palm Desert, a Charter City and municipal corporation, organized under the laws of the State of California, with its principal place of business at 73-510 Fred Waring Drive, Palm Desert, California 92260, (hereinafter referred to as the “City”) has awarded to The Van Dyke Corporation, (hereinafter referred to as the “Contractor”) an agreement for Contract No.C46150, (hereinafter referred to as the “Project”).

WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated November 3th, 2023, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.

NOW, THEREFORE, we, The Van Dyke Corporation, the undersigned Contractor and ________________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of FOUR MILLION SIX HUNDRED THIRTY THOUSAND TWO HUNDRED NINETY-ONE AND 40/100 Dollars, ($4,630,291.40), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.

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

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

The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under

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the Contract, law or equity, including, but not limited to, California Code of Civil Procedure Section 337.15.

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

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

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

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project.
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IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20___.
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal)
Surety
By
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges is $_______________________________.
(The above must be filled in by corporate attorney.)

THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety) ___________________________________________ ___________________________________________
___________________________________________
(Name and Address of Agent or ___________________________________________ Representative for service of ___________________________________________ process in California, if different ___________________________________________ from above)
(Telephone number of Surety ___________________________________________ and Agent or Representative for
service of process in California)

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

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

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal.

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

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

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of Attorney to local representatives of the bonding company must also be attached.

END OF PERFORMANCE BOND

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Payment Bond (Labor and Materials).

KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Palm Desert, a Charter City and municipal corporation organized and operating under the laws of the State of California (hereinafter designated as the “City”), by action taken or a resolution passed December 14th, 2023, has awarded to The Van Dyke Corporation hereinafter designated as the “Principal,” a contract for the work described as follows: Contract No.C46150 (the “Project”); and
WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated November 3rd, 2023, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.

NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal sum of FOUR MILLION SIX HUNDRED THIRTY THOUSAND TWO HUNDRED NINETY-ONE AND 40/100 DOLLARS ($4,630,291.40) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

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

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

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to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or the City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Civil Code Section 9100, and has not been paid the full amount of his claim.

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

IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal)
Surety
By
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate) Title

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

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

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal.

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

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

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of-Attorney to local representatives of the bonding company must also be attached.

END OF PAYMENT BOND

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CDR00004 - Section 29 Retention Basin Improvements and Expansion The Van Dyke Corporation
Line
Item Description Quantity
Unit of
Measure Unit Cost Total
1 Mobilization 1 LS $390,000.00 $390,000.00
2 Clearing and Grubbing 99500 SY $.87 $86,565.00
3 Remove and Replace Fence 86 LF $108.90 $9,365.40
4 Pre-Cast RCP Box Culvert
(2'H X 4'W X 8'L) 96 LF $270.80 $25,996.80
5 Furnish and Install "Danger: Fall
Hazard" Sign (12"x18") 1 EACH $11,700.00 $11,700.00
6 Furnish and Install Cable Rail Fence 97 LF $154.60 $14,996.20 7 Structural Concrete (Weirs and
Headwalls) 190 CY $1,000.00 $190,000.00
8 Rough Grading 106150 CY $3.70 $392,755.00
9 Soil Export 103180 CY $21.35 $2,202,893.00
10 1-Ton Grouted Rip-Rap 300 CY $50.90 $15,270.00
11 Erosion Control Blanket 29000 SY $39.15 $1,135,350.00 12 Temporary Concrete Washout 1 LS $2,600.00 $2,600.00
13 Temporary Construction Entrance 2 EACH $6,800.00 $13,600.00 14 Temporary Silt Fence 260 LF $15.00 $3,900.00
15 Temporary Fence 9300 LF $4.00 $37,200.00
16 Dust Control & Site Stabilization 1 LS $85,600.00 $85,600.00 17 Utility Coordination 1 LS $12,500.00 $12,500.00
Total Base Bid $4,630,291.40

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Sec�on 29 Reten�on Basin Improvements and Expansion
Vicinity Map

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Notice of Exemption Appendix E
Revised 2011
To: Office of Planning and Research
P.O. Box 3044, Room 113
Sacramento, CA 95812-3044
County Clerk
County of: __________________
___________________________
___________________________
From: (Public Agency): ____________________________
_______________________________________________
_______________________________________________
(Address)
Project Title: ____________________________________________________________________________ Project Applicant: ________________________________________________________________________ Project Location - Specific:

Project Location - City: ______________________ Project Location - County: _____________________ Description of Nature, Purpose and Beneficiaries of Project:

Name of Public Agency Approving Project: _____________________________________________________ Name of Person or Agency Carrying Out Project: ________________________________________________ Exempt Status: (check one):
Ministerial (Sec. 21080(b)(1); 15268);
Declared Emergency (Sec. 21080(b)(3); 15269(a));
Emergency Project (Sec. 21080(b)(4); 15269(b)(c));
Categorical Exemption. State type and section number: ____________________________________ Statutory Exemptions. State code number: ______________________________________________ Reasons why project is exempt:

Lead Agency
Contact Person: ____________________________ Area Code/Telephone/Extension: _______________ If filed by applicant:

1. Attach certified document of exemption finding.

2. Has a Notice of Exemption been filed by the public agency approving the project?  Yes No Signature: ____________________________ Date: ______________ Title: _______________________ Signed by Lead Agency Signed by Applicant
Authority cited: Sections 21083 and 21110, Public Resources Code. Date Received for filing at OPR: _______________ Reference: Sections 21108, 21152, and 21152.1, Public Resources Code.

City of Palm Desert 73510 Fred Waring Drive Palm Desert, CA 92260 Riverside 2724 Gateway Drive Riverside, CA 92507 Section 29 Improvement and Expansion Project City of Palm Desert Palm Desert Riverside City of Palm Desert. Lucero Leyva, Public Works Department 15302 Lucero Leyva 760-776-6465 Print Form The City proposes to improve and expand its existing retention basin on the west side of Portola Avenue (extended), and connect it to and improve the existing mid-Valley channel. The channel will connect to two retention ponds, located in the future City park within the approved Millennium Specific Plan.

The project will reconstruct an existing drainage basin and channel. No substantial change in purpose will occur: the basin and channel were designed to carry storm flows generated to the south, and carry them easterly. This project will improve flows and further protect this portion of the City. Finally, that portion of the channel and the easterly ponds were previously analyzed in the Millennium Specific Plan MND. West and east of Portola Avenue, immediately adjacent and south of the Union Pacific Railroad right-of-way.

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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: December 14, 2023
PREPARED BY: Shawn Muir, Community Services Manager
REQUEST: PROVIDE INPUT AND DIRECTION ON NORTH PALM DESERT

COMMUNITY PARK DESIGN
RECOMMENDATION:

1. Provide direction on schematic design for a new community park planned on Dinah Shore in north Palm Desert and approve staff to move forward with design development process.

2. Direct Public Works Staff to finalize the park plans and approvals in accordance with the Millennium Palm Desert Specific Plan.

BACKGROUND/ANALYSIS:

On March 26, 2015, the City Council adopted Ordinance No. 1281 approving the Millennium Palm Desert Specific Plan (MPDSP) and a Development Agreement in north Palm Desert.

These approvals reserved a planning area for a future 27-acre City park site to provide residents of the developments with outdoor recreational opportunities. The need for a park in this area is designated by the City of Palm Desert General Plan.

On February 10, 2022, staff requested direction from the City Council on developing a Request for Proposals (RFP) for design work related to NSRP. Council directed staff to work with the Parks and Recreation Committee to collaborate with community partners such as Family YMCA of the Desert, The Joslyn Center, and Desert Recreation District on a community-needs-focused design for the park and investigate what potential designs and features of the new park would enable the implementation of their programs. The Council also charged the Parks and Recreation Committee to ensure public engagement was inclusive of the process.

A subcommittee of the Parks & Recreation Commission was formed and held its first meeting on March 15, 2022. Discussion focused on the development of the RFP and suitability of the park site. The subcommittee made a recommendation to the full commission and Mayor Pro Tempore Jonathan that the City consider adding property or changing the park site to accommodate features typical of a regional park.

Staff developed and posted the North Sphere Regional Park Planning and Design RFP.

Concurrent to the RFP process, the City Council held a closed session in which staff were directed to provide opportunities to expand the park site. After an additional site was identified to expand or replace the 27-acre site, the RFP was updated. A contract was awarded on August 25, 2022, for the design of two parks in north Palm Desert: one 27-acre community park on Dinah Shore Drive and a separate regional sports park on a parcel located on Portola and Frank Sinatra Drive. The scope of work includes a robust community engagement process culminating in complete construction documents for the community park and 30% design plans for the regional park.

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City of Palm Desert
Provide Input and Direction on North Palm Desert Community Park Design

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On October 13, 2022, the City Council entered into a Development Disposition and Loan Agreement (DDLA) with a housing developer to convey approximately 0.49-acres of the planned park site to facilitate the development of an affordable housing community called “Palm Villas”.

The DDLA is currently active and reduces the area of the planned park site to 0.49-acres.

Public Engagement:

The park has been subject to an extensive and thorough public engagement process. The process included an online survey, two “Open House” events, and a series of focus meetings with stakeholder groups prior to the development of the first conceptual design. The first conceptual design was presented for feedback and comment to:

1. Parks and Recreation Commission (06/06/23)

2. Architectural Review Commission (06/13/2023)

3. Cultural Arts Committee (06/14/2023)

4. Resource Preservation & Enhancement Committee (06/19/2023)

5. General Public Information Zoom Presentation (06/20/2023)

6. Planning Commission (06/20/2023)

7. City Council (06/22/2023)
Following those meetings, a third “Open House” engagement event was held August 5th to relay the feedback collected throughout the conceptual presentation phases and to test perceptions on the feedback received.

The design was further modified to incorporate several of the comments received, as well as to account for commitments the City had made in the development agreement(s) of the abutting development areas that factored two components:
 The dedication of a 75-foot-wide landscape buffer along the entire frontage of Dinah Shore Drive, from the traffic circle to Gerald Ford Drive.  Accounting for dedications that were made to the Palms Communities development.

The revised design was presented to the Parks and Recreation Commission on November 7, where additional comments were received. The design was further modified to reflect those comments in preparation for a presentation to the City Council.

Design Description:

Accounting for the required landscape buffer along the Dinah Shore Drive required the elimination of the previously proposed parking lot that had been included. Those parking spaces were shifted to create one single parking lot with an aggregated total of 250 parking spaces. As a result of increasing the parking counts from 170 to 250 and the consolidation of the parking lots, several park elements were shifted. The schematic design still retains all the assets and values that were initially incorporated into the design with edits to the formal resolution of the design.

The design includes the following:
 250-car surface parking lot
 A large drainage retention basin with a pollution and sedimentation anti-chamber  Multi-sensory children’s play area with inclusionary elements

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City of Palm Desert
Provide Input and Direction on North Palm Desert Community Park Design

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 A basketball court
 4 pickleball courts with wind abatement elements
 Pavilion shelters with BBQ stands
 Continuous, interconnected walkways
 Plazas and garden park areas for adaptive use
 Large and small dog parks
 Multi-use lawn areas
Next Steps:

Based on input by the Council, Staff will finalize design plans for bid and complete necessary approvals required by the Specific Plan. Upon approval of the schematic design by City Council, the consultant design team will begin the design development process and begin the development of the construction plans. The design plans are required to incorporate mitigation measures of the Specific Plan and Development Agreement including sound mitigation along the northern property line of the park and final outdoor lighting plans which comply with the City’s Outdoor lighting ordinance. Plans will be circulated for City Staff review at interim development stages (30-60-90% completion plans), which is expected to be completed by September 2024.

The plans will be routed through all agencies having jurisdiction to obtain all necessary and required permits. It is anticipated that permits should be obtained by November and the City will be able to advertise the project for bid to general contractors for construction by January 2025.

Construction of the park is estimated to take approximately 16-18 months.

Cost:

Currently, based on an order of magnitude cost reflecting the elements included in the schematic plan, the overall cost for the project is approximately $15.628 million.

ELEMENT COST
Retention basin – precise grading, retaining walls, etc. $1,362,500 Site preparation for construction $ 805,000
Parking lot and drive aisles $2,752,500
Walking paths, hardscape area, specialty paving designs $3,095,615 Landscape Planting, Sod and Irrigation $2,783,325
Lighting $2,040,000
Children’s Play Area – Equipment, PIP and Shade Elements $1,150,000 Restroom Facility $ 650,000
Park Furnishings $ 989,000
TOTAL $15,627,940
Legal Review:

This report has been reviewed by the City Attorney’s office.

Strategic Plan:

Parks & Recreation – Priority 1: “Prepare for the financial requirements of maintaining existing parks to the highest level of service. Planning efforts shall also address future costs of replacement and growth of the parks capital improvement fund.”

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City of Palm Desert
Provide Input and Direction on North Palm Desert Community Park Design

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Parks & Recreation – Priority 2: “Assure a continuing flow of innovative ideas by seeking creative partnerships, ensuring adequate staffing, and encouraging resident input.” Transportation – Priority 1: “Create walkable neighborhoods and areas within Palm Desert that would include residential; retail; services and employment centers; and parks, recreation and open space to reduce the use of low occupancy vehicles.” Appointed Body Recommendation:

During its meeting on June 6, 2023, the Parks and Recreation Committee reviewed a presentation on the community park design and provided feedback. Interwest incorporated Committee and community feedback into the design plans and provided a follow-up presentation with the revised designs to the Committee on November 7, 2023. The Committee voted to approve the park design and requested that the City Council consider allowing the fields at the community park be used for organized sports due to the current demand for field space.

Environment Review:

The North Palm Desert Community Park was included in the City of Palm Desert General Plan that was adopted by City Council on November 10, 2016, and was analyzed for compliance with the California Environmental Quality Act (CEQA) in the certified General Plan EIR (SCH No. 2015081020). The North Palm Desert Community Park was also included in the Millenium Specific Plan that was adopted by City Council on March 26, 2015, and was further analyzed for compliance with CEQA in the Millenium Specific Plan Initial Study which concluded that there are no project-specific significant effects which are peculiar to the project or its site. Therefore, the Community Park project qualifies for CEQA exemption pursuant to CEQA Guidelines section 15183-Projects Consistent with a Community Plan or Zoning. Therefore, no further CEQA analysis is required. A CEQA Notice of Exemption (NOE) proving compliance with the section 15183 exemption criteria will be filed with the County Clerk following final approval for the North Palm Desert Community Park.

FINANCIAL IMPACT:

This project was included in the approved Capital Improvement Project (CIP) List for Fiscal Year 2022/23. The estimated budget for the design of the park was $1.5M, consisting of $1,000,000 from Parks and Recreation Special Revenue Account No. 2334670-5000201, and $500,000 in Capital Bond Funds Account No. 4514618-4400100. Additionally, a grant through the Coachella Valley Mountains Conservancy was awarded in the amount of $300,000 to assist with park planning.

Award Expense Account Budget Expense Balance
FY 22/23 Budget Approval 2334670-5000201 $1,000,000
08/25/23 Appropriation 4514618-4400100 $500,000
08/25/23 C43900 – Interwest $1,230,095
08/25/23 C43900 – Contingency $100,000
Total $1,500,000 $1,330,095
Budget Balance $169,905
CVMC Grant Award $300,000
Project Balance $469,905

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City of Palm Desert
Provide Input and Direction on North Palm Desert Community Park Design

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The Fiscal Year 2023-24 CIP budget included $5M in both Fiscal Year 2024-25 and 2025-26 for construction of the community park that was identified as unfunded. Once the construction budget is refined, staff will work to identify potential funding sources for the project.

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CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: December 14, 2023
PREPARED BY: Shawn Muir, Community Services Manager
REQUEST: EXTEND CONTRACT WITH YMCA FOR MANAGEMENT OF THE PALM DESERT AQUATIC CENTER FOR AN 18-MONTH TERM
RECOMMENDATION:

1. Approve Amendment No. 6 to extend Contract No. C36620 with the Family Young Men’s Christian Association of the Desert (“YMCA”) of Palm Desert, California, for management and staffing of the Palm Desert Aquatic Center for an 18-month term in the amount of $100,210 plus reimbursement of additional costs included in the agreement in the amount of $880,069 for a total amount not to exceed $980,279 for FY2023/24.

2. Authorize the Mayor to execute said amendment.

Funds have been included in the 2023/24 Budget in the Aquatic Center Special Revenue Fund Account numbers as referenced in the fiscal analysis. Funds for FY 2024/25 will be included in the forthcoming budget process.

BACKGROUND/ANALYSIS:

In January 2018, the City issued a Request for Proposals (RFP) for management of the Palm Desert Aquatic Center. A competitive bidding process was conducted resulting with the award of Contract No. C36620 to the Family YMCA of the Desert for a one-year term with an option to renew every year until June 30, 2023. All renewals were completed, and Amendment No. 4, which was awarded on April 14, 2022, expired on June 30, 2023.

An RFP for a new Management and Operations contract was issued in November 2022 but resulted in the rejection of the proposals in favor of revising the scope of work for the contract.

Amendment No. 5 was approved to extend the contract through December 31, 2023. A second RFP process was conducted beginning in August 2023; however, those bids were rejected during the November 16, 2023, City Council meeting due to a desire to further refine roles and responsibilities, key performance indicators, reporting requirements within the agreement and permit each party to reset expectations.

Staff has negotiated changes to the contract terms with the YMCA and both parties agree with the updated scope. Staff recommends approval of Amendment No. 6 to extend Contract No.

C36620 with YMCA.

Legal Review:

This report has been reviewed by the City Attorney’s office.

Strategic Plan:

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City of Palm Desert
Extend PDAC Management Contract

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High quality facility management and staffing at the Palm Desert Aquatic Center (PDAC) sustains one of the City’s premier recreational facilities. The proposed action will further the goals of the Strategic Plan by providing pervasive recreation opportunities for residents and visitors.

FINANCIAL IMPACT:

The costs associated with the contract extension and operational costs are included in the Aquatic Center budget for Fiscal Year 2023-24. The YMCA is requesting a management fee of $100,210 for January 1, 2024 through June 30, 2024. For FY 2024-25, a fee of $210,442 is being requested and subject to appropriation of funds in that year. Management fees will be paid by the City monthly. The estimated 6-month costs for this extension have been accounted for in FY 2023-24, as follows:

FY 2023-24 Account # Budget Jul-Dec 2023 Jan-Jun 2024 Balance Management Fee 2424549-4309300 $352,050 $82,500 $100,210 $169,340 Contracted Labor 2424549-4802101 $1,637,500 $762,569 $762,569* $112,362 Food / Merchandise 2424549-4801100 $40,000 $20,000 $20,000* $0 Supplies 2424549-4219000 $20,000 $10,000 $10,000* $0
Other Expenses 2424549-4309000 $175,000 $87,500 $87,500* $0 TOTAL $2,224,550 $962,569 $980,279 $281,702
*Budgeted amount
ATTACHMENTS:

1. C36620 Amendment No. 6

2. Exhibit A - Scope of Work

3. C36620 - Executed Agreement

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Contract No. C36625
AMENDMENT NO. 6 TO CONTRACT NO. C36620 - PROFESSIONAL SERVICES FOR

MANAGEMENT AND STAFFING OF THE PALM DESERT AQUATIC CENTER

BETWEEN THE CITY OF PALM DESERT AND FAMILY YMCA OF THE DESERT

1. Parties and Date.

This Amendment No. 6 to Contract No. C36620 - Professional Services for Management and Staffing of The Palm Desert Aquatic Center is made and entered into as of this 14th day of December 2023, by and between the City of Palm Desert (“City”) and Family YMCA of The Desert, a Nonprofit Organization with its principal place of business at 43930 San Pablo Avenue, Palm Desert, CA 92260 (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties”.

2. Recitals.

2.1 Agreement. The City and Consultant have entered into an agreement entitled Contract No. C36620 - Professional Services for Management and Staffing of the Palm Desert Aquatic Center dated May 10, 2018 (“Contract”) for the purpose of retaining the services of Consultant to provide Management and Staffing of the Palm Desert Aquatic Center.

2.2 Amendment. The City and Consultant desire to amend the Agreement to extend the term and update the scope of work. The Parties have heretofore entered into that Amendment No. 5 dated April 27, 2023.

2.3 Amendment Authority. This Amendment No. 6 is authorized by City Council approval.

3. Terms.

3.1 SECTION 1. Section 1.1 of the Agreement is hereby amended in its entirety to read as follows:
“The term of this Agreement commenced on July 1, 2018 (“Commencement Date”) and continued with extensions through June 30, 2023. Amendment No. 5 extended the term of this Agreement from July 1, 2023, through December 31, 2023. The term of this Agreement is further extended, and shall include the time period from January 1, 2024, through June 30, 2025."

3.2 SECTION (1) TERM (1.1) of the Agreement is hereby amended in its entirety to read as follows:
“Exhibit A is hereby deleted in its entirety and replaced with the attached Exhibit A attached hereto and incorporated herein by reference.”

3.3 SECTION (15) of the Agreement is hereby amended in its entirety to read as follows:
“The City agrees to pay the Consultant a fixed Management Fee for the period of this Agreement to the expiration of the term, CONSULTANT shall receive a “Fixed Management Fee” of $16,701.72 per month, for the first six-month period and $17,536.81 per month, for the remaining twelve months. The Fixed Management Fee shall be paid monthly, in arrears, within 30 days of receipt of the invoice.”

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Contract No. C36624

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3.4 SECTION (16) of the Agreement is hereby removed from the Agreement and has been addressed in Exhibit A.

3.3 Continuing Effect of Agreement. Except as amended by this Amendment No. 6, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 6. From and after the date of this Amendment No. 6, whenever the term “Agreement” or “Contract” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 6.

3.4 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 6.

3.5 Severability. If any portion of this Amendment No. 6 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.6 Counterparts. This Amendment No. 6 may be executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]

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Contract No. C36624

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SIGNATURE PAGE FOR AMENDMENT NO. 6 TO CONTRACT NO. C36620 – PROFESSIONAL

SERVICES FOR MANAGEMENT AND STAFFING OF THE PALM DESERT AQUATIC CENTER

BETWEEN THE CITY OF PALM DESERT AND FAMILY YMCA OF THE DESERT IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 6 to the CONTRACT NO. C36620 – PROFESSIONAL SERVICES FOR MANAGEMENT AND STAFFING OF THE PALM DESERT AQUATIC CENTER as of the day and year first above written.

CITY OF PALM DESERT
Approved By:
_______________________
Kathleen Kelly, Mayor
Attested By:
_______________________
Anthony J. Mejia
City Clerk
Approved As To Form:

By:
_______________________
Best Best & Krieger LLP
City Attorney

FAMILY YMCA OF THE DESERT
_______________________
Signature
_______________________
Name
_______________________
Title
_______________________
Signature
_______________________
Name
_______________________
Title
QC: _____
Insurance:
_____
Initial Review
_____
Final Approval

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Contract No. C36625
Amendment No. 6
Exhibit A

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SCOPE OF SERVICES
General Scope:

The Consultant will provide management and operations services for City of Palm Desert in accordance with the Contract Documents at the Palm Desert Aquatic Center (PDAC), located at 73751 Magnesia Falls Drive, Palm Desert, CA 92260.

The City requests the Consultant to demonstrate their ability to provide and perform services for the Aquatic Center including, but not limited to, management, operations, programming, concessions, and janitorial services relating to the Aquatic Center as described in this Scope of Services. The Aquatic Center consists of the following amenities:
• 50- Meter Pool with Diving Area
• Recreation / Therapy Pool (with slides)
• Children’s Pool with Water Play Structure
• Concessions Area (675 Sq. Ft.)
• Men’s and Women’s Locker Rooms
• Family Restrooms and Changing Areas
• Lifeguard Room / First Aid Room
• Administration Offices
• Multi-Purpose Room (842 Sq. Ft.)
• Storage Room
• Mechanical Room
• Chemical Storage Areas
The City contracts the major pool mechanical maintenance of the Aquatic Center to a third-party contractor and will work closely with the Consultant to ensure prompt service to the facility. All utilities will be directly billed and paid for by the City.

All services provided by the Consultant must be performed to the industry standards and compliant with all applicable local, county, state, and federal laws.

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Contract No. C36625
Amendment No. 6
Exhibit A

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1. Roles and Responsibilities
City of Palm Desert Family YMCA of the Desert
Day-to-Day Operation N/A • Admissions and program
operation
• POS system
• Janitorial
• Program Development
Facility • Weekly walk-through
inspections
• Execute maintenance
projects
• Execute capital
improvement projects
• Daily upkeep of pools,
slides, and other
equipment
• Minor pool equipment
repairs and painting
• Submit immediate
reports on maintenance
or CIP needs
• Make recommendations
on maintenance or CIP
needs based on aquatic
industry standards
Human Resources • Management committee
• Annual Wage Scale
Review
• Aquatic Manager,
Operations Manager,
Lead Lifeguards and
Lifeguards
• Recruitment
• Competitive wages and
benefits
• General staff training for
facility operation
• Lifeguard certification
• First aid/CPR/AED
Marketing and
Programs
• City-operated marketing
program
• New programs and
expanded hours to be
proposed by
management committee
• Participate in monthly
marketing meetings
• Staff and operate
programs in coordination
with City staff
• Collaborate with City on
Concessions
Accountability • Analysis of KPIs
• Bi-monthly meetings with
management committee
• Develop and organize
financial projection and
analysis team
• Collect data on
prescribed KPIs
• Bi-monthly meetings with
management committee
• Assist with report
development and
presentation

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Contract No. C36625
Amendment No. 6
Exhibit A

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• Review monthly/quarterly
trends regarding budget,
visitors, KPI data
• Participation in financial
projection and analysis
team
Concessions • Develop updated
schedule and menu
• Determine need for
additional equipment
• Operate concessions per
City guidance
• Conduct inventory of
concessions supplies

2. Services to be Performed.

The Consultant will provide services, plans and procedures as described below for the day-to-day management and operations of the facility:
• Perform maintenance, cleaning, and minor repairs of all pools, equipment, and facilities. • Perform daily safety and compliance checks of all pools, decks, pool amenities, and facilities. Notify City staff of all urgent issues immediately and routine concerns within one business day.
• Complete daily inspection report form for water slides and applicable attractions when in use, and maintain on file.
• Ensure the pool and support facilities meet cleanliness and hygiene standards. • Ensure all pools meet applicable Riverside County Health Department standard compliance (chemicals, flow, filtration, etc.).
• Manually check and record water chemistry in each pool every 2 hours (minimum) and adjust chemicals as needed.
• Maintain industry standards for water clarity and cleanliness on all pools. • Inspect and maintain records of all pools and equipment. • Monitor inventory levels of chemicals and other pool maintenance supplies for the purpose of ensuring the availability of supplies as needed. • Monitor and inventory concessions supplies.
• Prepare and process purchase orders for the purpose of securing needed supplies according to City of Palm Desert purchasing policies and requirements. • Provide regular KPI data and reports as required for assigned equipment and programs. • Maintain equipment and chemical rooms to be free of non-essential equipment, used parts, clutter and chemical spills.
• Follow all required safety precautions when using hazardous materials, assigned tools, and machinery.
• Set up and/or move equipment (e.g., starting blocks, bleachers, diving boards etc.) for the purpose of ensuring availability for patrons and programs. • Maintain cleanliness of all facilities within the aquatic center: pools, drains, deck, locker rooms, etc.

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Contract No. C36625
Amendment No. 6
Exhibit A

Page 4 of 19 ends

• Perform facility painting and retouching as necessary to maintain a high-quality facility facade.
• Promote, and exemplify City of Palm Desert Mission, Vision and Core Values. • Exercise excellent customer service. Follow up on complaints, questions, and concerns; respond to internal and external customer needs in a friendly, timely and efficient manner.
• Administer regular customer feedback and satisfaction surveys. • Comply with local jurisdictional requirements and industry standards as applicable including but not limited to: California Pool Code, Model Aquatic Health Code, OSHA Hazardous Communications Standard and OSHA Bloodborne Pathogens Standard.

3. Business Plan
Consultant shall provide a Business Plan to include the following:
• Hours of operation (subject to change if approved in writing by the City) o May through September
 Monday – Friday 5:30 am – 7:00 pm
 Saturdays 7:00 am - 7:00 pm
 Sundays 8:00 am – 7:00 pm
o October through April
 Monday – Friday 5:30 am – 7:00 pm
 Saturdays 7:00 am - 5:00 pm
 Sundays 8:00 am – 5:00 pm
• Personnel requirements
• Guidelines for policy development for programs and facility

4. Preventative Maintenance Plan
The Consultant shall adhere to the established comprehensive Preventative Maintenance Plan provided by the City that includes, but is not limited to the following:

A. Facility Inspection Program

1. Details of facility inspections

2. Frequency of facility inspections
B. Routine Maintenance to be performed.

C. Expected Capital Improvement Items
The City will provide the following to be included in the Preventative Maintenance Plan:

A. Available PDAC As Built Plans
B. Mechanical Equipment Inventory

1. Name and Model #

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Contract No. C36625
Amendment No. 6
Exhibit A

Page 5 of 19 ends

2. Manufacturer and contact info.

3. Local Vendor (as applicable)

4. Replacement and service details
C. Equipment Manuals

1. In the event an equipment manual is not available, the City shall attempt to provide a satisfactory replacement from the equipment manufacturer.

2. If no manual is available, the Consultant shall provide a written document outlining the standard operating procedures for maintaining and operating the applicable piece of equipment.

5. Safety Plan
The Consultant shall provide and maintain a facility Safety Plan that includes, but is not limited to the following:

A. Facility Staffing Plan

1. Code Compliance Staffing Plan

2. Zones of Patron Surveillance

3. Rotation Procedures

4. Alternation of Tasks

5. Supervision Protocols
B. Emergency Action Plans

1. Emergency procedures for anticipated emergencies at the aquatic center

2. Methods of communication

3. Required emergency equipment.

4. Emergency closure requirements
C. Biohazard Action Plan

1. Fecal vomit and blood contamination of the pool and facility surfaces D. Pre-Service Training Plan

1. Facility policies and procedures to be included in training.

2. Demonstration of required Safety Team skills specific to PDAC

3. Documentation of training
E. In-Service Training Plan

1. In-service training frequency. A minimum of 4 hours of in-service training monthly is required of all staff that regularly, or MAY perform lifeguard duties. a. Makeup in-services may be held for approved absences and must comply with the original in-service plan missed.
b. Lifeguards who do not meet the monthly in-service training requirement must undergo Pre-Service Training prior to returning to Lifeguard duties.

2. In-service documentation

3. Certification maintenance

4. Demonstration of Lifeguard Skill Proficiencies

5. Competency Demonstration Plan

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Contract No. C36625
Amendment No. 6
Exhibit A

Page 6 of 19 ends

a. Ability to reach the furthest edge of Zones of Surveillance within 20 seconds. b. Ability to perform required emergency response skills. c. Ability to perform Resuscitation and First Aid skills.

6. Recruitment and Hiring Plan
A. Recruitment and Hiring

1. Consultant will submit a written process for recruitment and hiring.

B. Organizational Chart and Staffing Levels
Consultant will provide and maintain an organizational chart depicting the management approach and general staff responsibilities. Staffing levels will be maintained at a minimum required based on the submitted and approved staffing plan (Safety Plan – Section 1) and Zone Evaluation documentation.

Staffing and salary ranges are to be provided annually to the City of Palm Desert Director of Public Works for approval.

Alternative organization and staffing plans that meet safety and operating requirements may be submitted by the Consultant. All alternate staffing plans must be approved by the City of Palm Desert before they are instituted.

C. All personnel will be easily identifiable by approved uniforms at all times while on duty.

D. Janitorial services for the facility will be completed by the Consultant and is typically performed by Lifeguards and other staff on duty.

1. Regular locker room checks are expected to be performed throughout the day.

2. Locker room check sheets may be utilized at the discretion of the Consultant.

E. Position Descriptions

1. Descriptions for key positions listed above will be developed and maintained by the Consultant.

7. Staff Training
A. PDAC staff will maintain the following minimum training credentials:

1. Aquatic Director / Manager
a. Certified Pool Operator (CPO) or Aquatic Facility Operator (AFO) or approved equal.

2. Aquatic Director / Manager, Aquatics Coordinator, Facility Operations Manager, or other staff
a. Lifeguard Instructor Certification (LGI)

3. Facility Operations Manager
a. Certified Pool Operator (CPO) or Aquatic Facility Operator (AFO) or approved equal.

4. Aquatics Front Desk & Concessions Manager

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Contract No. C36625
Amendment No. 6
Exhibit A

Page 7 of 19 ends

a. Food Manager Certification (must be from a school recognized by the Riverside County Department of Environmental
Health: https://rivcoeh.org/sites/g/files/aldnop361/files/migrated/Portals-0-PDFFoods-31-09-DES-Food-Manager-Certification.pdf

5. Lifeguards
a. Lifeguarding with Bloodborne Pathogens Training, Administering Emergency Oxygen, Asthma Inhaler Training, Epinephrine Auto Injector, First Aid for Public Safety Personnel (Title 22) (American Red Cross or approved equal)

8. Operations Procedures
The Consultant will develop and maintain standard procedures that must be performed for the proper maintenance and operations of the facility. These include but are not limited to:
• Pool Chemical Parameters
• Chemical Room Emergency Procedures
• Hazard Identification and Communication
• Safety and First Aid Equipment
• Facility and Pool Cleanliness
• Health Regulations
• Discipline
• Child Abuse Prevention
• Lost and Found
• Media Communication
• Pool Water Contamination and Response
• Biohazard Disposal
• Report Writing

1.The designated shift supervisor oversees the facility and staff.

2. The minimum age for a lifeguard to lifeguard a body of water alone is 16 years of age.

3. Facility may not open to the general public without a minimum of 3 lifeguard certified staff members present.

4. At the start of their shift, all certified staff members must be ready to perform assigned duties.

5. All schedules are posted in their respected offices and emailed to the staff in a timely manner.

6.Deck Lifeguards:

1. During high use times lifeguards will rotate regularly.

2. Lifeguards leaving the deck must perform regular locker room checks.

3. Elevated lifeguard stations shall be utilized as the standard for most lifeguard zones.

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Contract No. C36625
Amendment No. 6
Exhibit A

Page 8 of 19 ends

a. Ground level stations may be utilized where appropriate. b. Roving stations may not be utilized as a primary surveillance position. Roving stations may be utilized as secondary lifeguards to a zone when necessary.

4. Rescue hip packs must be worn by all trained lifeguards at all times. Packs will be adequately supplied with a resuscitation mask appropriate for adults and a mask appropriate for children, or a universal mask and non-latex exam gloves.

7. Backup Duty Lifeguard:

1. When not needed on deck or to assist customers, Backup Duty Lifeguards shall:
a. check locker rooms for behavior issues or horseplay, b. assist in rendering first aid to injured persons,
c. assist deck lifeguard as needed,
d. or perform cleanup and maintenance activities.

8. If a full complement of staff is not needed, the supervisor on duty may release excess lifeguards from work.

9. No lifeguard will be scheduled to work more than 8 hours in one day.

10. Lifeguards will be trained to complete injury report forms for all injuries to be submitted to the Aquatic Manager.

11. The Aquatic Manager shall notify the City of all required incidents.

12. The Lead Lifeguard is required to check and record pool chemistry every 2 hours.

13. Water chemistry shall be checked in the morning in enough time to adjust chemicals prior to opening to the public.

14. Water chemistry shall be checked at closing and necessary chemical adjustments made prior to staff leaving.

15. All staff will receive communications training, including verbal and non-verbal hand signals, whistle blasts, radio contact, and written communication. Signs and brochures at the front desk communicate safety rules. Management will share information at regular meetings and Supervisors will convey information through in-service trainings or other methods as needed.

16. The concession stand adheres to all Riverside County health codes and regulations. All staff handling unpackaged food must maintain current Riverside County Food Handler cards and be overseen by a Food Safety Manager. A minimum of one Food Safety Manager shall be on staff during the concession operation.

17. Locker rooms are monitored periodically by lifeguards. No food or drink is allowed in the locker rooms. Towel snapping, running or rough play is not allowed. Children 5 years of age and older are required to use the locker room of their own sex. Family changing rooms are also available.

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Contract No. C36625
Amendment No. 6
Exhibit A

Page 9 of 19 ends

18. Any commercial advertisements, press releases, articles, or other media information using the City’s name and/or logos shall be subject to the prior approval of the City.

19. All advertisements at the Aquatic Center are subject to approval by the City.

9. Financials
The Consultant shall develop and maintain financial procedures that align with the City’s financial policies and procedures, including but not limited to:
• Cash controls
• Budget development
• Payroll
• Collections
• Revenue reporting
• Purchasing
• Accounts payable
The Consultant shall keep complete and accurate books of revenues collected and will make all records available to the City upon request. Books and records for the PDAC shall be maintained separately from other facilities operated by the Consultant. The Consultant shall maintain accounting books and records for a period of at least three years after the expiration or earlier termination of the Agreement, and the City shall have the right to inspect and audit such books and records during such period.

Financial and daily records shall meet the following criteria:
• Record of all sales by means of a cash register, which will display the amount of each sale and automatically issue a customer’s receipt. Beginning and ending cash register readings shall be made a matter of daily record.
• Entry of each and every Aquatic Center user’s name on entry log.* • A total count of Aquatic Center users at the end of each day and reconciliation of fee category totals on cash register detail reports.
• Ability to differentiate resident vs. non-resident visits. • Maintenance of a daily logbook detailing the number of Aquatic Center users by fee category and total amount of cash collected by fee category. • Ability to record and report the number and type of discounts provided.

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Contract No. C36625
Amendment No. 6
Exhibit A

Page 10 of 19 ends

• Monthly and annual statements of gross revenues, including a budget comparison, a variance report, and such other customary reports as may reasonably be requested by the City.
*Except non-resident drop-in for recreation and lap swim. Groups or families must provide only the primary/head of household or group lead’s contact information.

9.1 Cash Receipts
The Consultant shall collect daily fees and record them in the point-of-sale system. The city shall provide deposit bags for daily cash receipts, which will be submitted to the city daily with a daily register report or similar report that ties back to the cash receipts. Reports for weekends and observed holidays shall be submitted on the following business day. Reports shall include receivables for insurance-sponsored Senior/dependent benefit programs (i.e. Peerfit, SilverSneakers, Medicare, etc.) and monthly lane rentals.

The Consultant shall submit a monthly revenue report to the city for deposit verification and revenue reconciliation, which the city will reconcile during its normal bank reconciliation processes.

The city may implement armored courier services or night deposit procedures depending on the volume and frequency of cash collected at the PDAC.

9.2 Banking
The city shall maintain the PDAC cash balances in the main bank account of the city, utilizing the pooled cash method of fund accounting. Upon contract execution, the Consultant shall begin the process of sending accumulated funds back to the city. This process shall include the reconciliation of all deposits in transit and outstanding checks.

The City shall provide a loan of $200,000 to the Consultant, to be held in the Consultant’s own bank account, for the purpose of emergency payroll coverage.

The Consultant may request the establishment of a petty cash fund from the City if needed.

9.3 Reimbursements
The management fee reimbursement will be made via check, ACH or wire transfer from the city to the Consultant in accordance with the contract terms.

For payroll reimbursements, Consultant will provide the city with a report of payroll cash requirements and any requested backup upon completion of each payroll process. The City shall reimburse the Consultant via timely wire transfer on a schedule that aligns with the Consultant’s payroll cash sweep deadlines.

9.4 Procurement and Invoice Processing
All procurement and invoice processing shall be in accordance with applicable city procurement policies and procedures. Expenditure invoices shall be paid directly by the city via city workflow routing. The city shall provide the Consultant with the appropriate instructions on how to submit invoices and other procurement documents for processing.

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Contract No. C36625
Amendment No. 6
Exhibit A

Page 11 of 19 ends

Upon execution, Consultant shall provide the city with any existing contracts for review by the city’s procurement department.

10. Policies
The Consultant will develop and maintain policies and procedures, including but not limited to:
• Pool Use and Safety Rules
• Lifeguard Policy and Procedure Manual
• Equipment Rental Procedures
• Facility Rental, Group Use Requirements, and Fee Structure • Swim Testing
• Signage Standards

11. Program Development
The Consultant shall develop a program plan to be reviewed and approved by the City. The Program Plan shall include at a minimum.
• Swim lessons
• Lap swimming
• Arthritis and/or Multiple Sclerosis classes
• Red Cross certification courses
• Yoga, spin, or other group fitness classes
• Water games
The Consultant shall strive to make classes responsive to and/or inclusive to persons with disabilities. A program registration process will be in place.

The Program Plan shall include program attendance goals and shall be reviewed by the Consultant and the City of Palm Desert annually at a minimum.

The PDAC Program Plan may be updated or amended to meet City of Palm Desert goals throughout the contract term. Any changes shall be agreed upon by the City of Palm Desert and the Consultant.

12. Key Performance Indicators
The Consultant shall gather data on a daily basis to report on required Key Performance Indicators (KPIs). For general business practices, the following items or KPIs should be tracked by the Palm Desert Aquatic Center management company. Additional items may be added in the future to

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Contract No. C36625
Amendment No. 6
Exhibit A

Page 12 of 19 ends

influence business and operational decisions. Some items may be removed in the future if they are no longer meaningful for business updates.

Monthly reporting should be available to present to and discuss with the Palm Desert Aquatic Center Business Committee. The report information requested may change depending on updated strategies.

Depending on the metric, they may be included in Monthly, Quarterly or Annual reports.

Financial Programs Operations
• Attendance/Passes Sold
• Member Retention
• Pass Renewals
• Concessions Revenue
• Rental Revenue
• Swim Lesson Revenue
• Concessions Per Cap
• Program Attendance
• Sessions
Held/Canceled
• Rentals Held
• Special Programs
• Checklist Compliance
• Closures
• Incidents
• Facility Audit Results
• Pool Chemical Readings
• Customer Satisfaction
• Staff Turnover

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Contract No. C36625
Amendment No. 6
Exhibit A

Page 13 of 19 ends

13. Reporting Standards
The Consultant shall regularly report on all required KPIs and topics according to required timelines. Monthly reports will be delivered to the City of Palm Desert staff liaison of the PDAC Business Committee. Quarterly reports will be presented at regular Parks and Recreation meetings. Annual reports will be presented to the City Council. Reporting requirements include but are not limited to the items below:

Subject Justification Target Information Reporting
Frequency
Attendance/Passes
Sold
Tracking attendance
and passes sold is
crucial for PDAC to
understand customer
engagement and
revenue generation. It
is also necessary to
understand the impact
of the aquatic center
services within the
community and the
impact of the use of
City resources.

Total attendance for
the month including
passes and
memberships sold.

Include comparisons to
prior years in the same
month. In addition, any
special programs, or
events with their
attendance should be
listed in addition to the
total.
• Monthly
• Quarterly
• Annually
Member Retention Member retention is
essential for the
stability and growth of
a business. It directly
affects the recurring
revenue and the
establishment of a
loyal customer base.

Understanding and
analyzing retention
rates assist in
developing strategies
to retain existing
customers, ultimately
reducing the cost of
acquiring new ones.

Membership retention
is the percentage of
members that
continued their
membership or
renewed their
membership during the
reporting period.
• Monthly
• Quarterly
• Annually

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Contract No. C36625
Amendment No. 6
Exhibit A

Page 14 of 19 ends

Subject Justification Target Information Reporting
Frequency
Concessions
Revenue/Per Cap
Concessions revenue
may serve as a
significant stream of
income for PDAC.

Monitoring this metric
helps in understanding
customer spending
patterns, optimizing
offerings, and
increasing profitability
by adjusting product
mixes and pricing
strategies.

Calculating
concessions per capita
is essential as it
reflects the average
spending of customers
per visit. This metric
assists in evaluating
the effectiveness of
sales strategies and
pricing, helping PDAC
optimize revenue
generation.

Concessions revenue
should be reported as
a total revenue line
item (Gross), and net
revenue which is the
gross revenue minus
expenses.

Additionally, specific
concessions items may
be reported to
maximize offerings.

Monthly during
summer months and
in the Annual Report.

Rental Revenue Rental revenue is a
critical source of
income for many
PDAC. Keeping track
of rental revenue
allows for effective
management of
available resources,
enabling adjustments
in pricing strategies
and identifying
opportunities to
expand services.

Rental revenue should
be reported to show
the number of rentals
offered and the amount
of revenue collected for
that reporting period.

This can also be
analyzed vs. the
previous year’s
reporting period to
show increases or
decreases in revenue.
• Monthly
• Quarterly
• Annually

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Contract No. C36625
Amendment No. 6
Exhibit A

Page 15 of 19 ends

Subject Justification Target Information Reporting
Frequency
Swim Lesson
Revenue
Monitoring swim
lesson revenue is
crucial for PDAC. It
helps in gauging the
popularity of the
program, assesses
profitability, and
determines the
effectiveness of
marketing and
teaching strategies.

Each report should
indicate the number of
swim lessons taught,
the revenue from the
swim lessons and
increases or decreases
from previous reporting
periods.
• Session
• Monthly
• Quarterly
• Annually
Program Attendance
Sessions
Held/Canceled
Tracking the number
of sessions held
versus canceled is
crucial for maintaining
operational efficiency.

It helps in identifying
trends, managing
resources effectively,
and improving
scheduling to minimize
disruptions.

Monitoring program
attendance helps in
evaluating the success
and popularity of
various programs
offered. This data
guides PDAC in
making informed
decisions about
program
improvements,
resource allocation,
and future offerings.

Each program should
track attendance, spots
filled vs vacant and
whether the class or
session met minimum
sign ups or not. This
may help PDAC in
ensuring profitable
programs continue and
unprofitable programs
can be abandoned or
re-marketed to
increase participation.
• Quarterly
• Annually

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Contract No. C36625
Amendment No. 6
Exhibit A

Page 16 of 19 ends

Subject Justification Target Information Reporting
Frequency
Special Events /
Programs
Monitoring the success
and attendance of
special programs is
important for PDAC to
understand their
impact on revenue and
customer engagement.

This data informs
future planning and
helps in tailoring
offerings to meet
customer demands.

Each special event
should track
attendance and
profitability to ensure
the special event met
profitability and
attendance goals. This
data can be utilized to
understand whether to
continue offering the
event or not.
• Post-event
• Annually
Checklist
Compliance
Ensuring checklist
compliance is vital for
maintaining
operational standards,
safety, and quality.

Tracking compliance
helps in mitigating
risks, ensuring
consistency, and
maintaining a positive
reputation.

Checklist Compliance
should be reported as
a percentage of total
compliance expected,
vs what was
completed. This will
help to ensure risk
management
operations are being
conducted.
• Monthly
• Quarterly
• Annually
Closures Documenting closures
is crucial for PDAC to
understand their
impact on revenue and
customer experience.

Analyzing closure data
helps in identifying
patterns, mitigating
issues, and developing
strategies to minimize
disruptions.

Closures data should
include the reason for
the closure and the
amount of revenue that
may have been lost
due to the closure.

Additionally, any extra
expenses incurred due
to the closure should
be tracked.
• Monthly
• Quarterly
• Annually

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Contract No. C36625
Amendment No. 6
Exhibit A

Page 17 of 19 ends

Subject Justification Target Information Reporting
Frequency
Incidents Tracking incidents is
crucial for ensuring
customer safety and
satisfaction. It helps in
identifying potential
risks, improving safety
protocols, and
maintaining a secure
environment for
customers and staff.

Incidents should be
reported immediately to
appropriate offices and
then tracked to indicate
location and reason for
the incident. This data
can then be used to
mitigate future risks.
• Monthly
• Quarterly
• Annually
Facility Audit
Results
Monitoring facility audit
results is essential for
ensuring operational
standards and
compliance. This data
helps in identifying
areas for
improvement,
maintaining quality
standards, and
meeting regulatory
requirements.

Internal and external
audits should be report
as they occur and
given directly to the
City of Palm Desert.

Per audit
Pool Chemical
Readings
Monitoring pool
chemical readings is
critical for maintaining
a safe and hygienic
environment. This data
ensures compliance
with health and safety
standards, protecting
the well-being of
customers and staff.

Abnormalities may be
reported to the City of
Palm Desert as they
occur, however pool
readings should be
recorded and available
to be reported on as
needed.

Per occurrence

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Contract No. C36625
Amendment No. 6
Exhibit A

Page 18 of 19 ends

Subject Justification Target Information Reporting
Frequency
Customer
Satisfaction
Assessing customer
satisfaction is
fundamental for PDAC
to understand the
quality of services
offered. This data
helps in identifying
areas for
improvement, retaining
customers, and
attracting new ones
through positive wordof-mouth.

Customer satisfaction
measurements should
be taken after every
program and program
session and
periodically throughout
the year. Customer
satisfaction can then
be reported Quarterly
or Annually as needed.
• Quarterly
• Annually
Staff Hiring /
Retention
Tracking staff turnover
is important for PDAC
to assess employee
satisfaction, identify
retention issues, and
implement strategies
to improve workplace
culture and reduce
hiring and training
costs.

Tracking staff
recruitment is crucial
for PDAC to ensure
appropriate staffing
levels. Monitoring
recruitment efforts
helps in identifying
trends, optimizing the
hiring process, and
ensuring a skilled and
reliable workforce.

The number of staff
retained, and the
number of staff hired vs
the number needed for
operations. This can
help identify staffing
needs and increases in
marketing toward
staffing goals.
• Quarterly
• Annually

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Contract No. C36625
Amendment No. 6
Exhibit A

Page 19 of 19 ends

Subject Justification Target Information Reporting
Frequency
Completed
Maintenance
Monitoring completed
maintenance tasks is
crucial for ensuring the
proper functioning of
equipment and
facilities. It helps in
preventing disruptions,
ensuring customer
satisfaction, and
maintaining a positive
reputation.

Regular maintenance
summaries should be
included in monthly
reports and major
maintenance projects
reported in annual
reports to show that
preventive
maintenance and
regular maintenance is
occurring.
• Monthly
• Annually
In-Service Training Ensuring in-service
training compliance is
vital for staff
development and
maintaining
operational standards.

It assists in enhancing
employee skills,
ensuring consistency
in service quality, and
adhering to regulatory
requirements.

In-service training
should be reported
annually to show a
complete in-service
training program and
that all staff members
are receiving the
required number of
training hours annually.
• Annually
Goal Updates Goals move the
business at PDAC
forward and the
reporting of goals
achieved or worked on
show the progress
management is
making toward the
future.

Goals should be
reported Quarterly and
Annually to ensure
continuous
improvement in
operations and
business.
• Quarterly
• Annually
The Consultant shall meet with City staff monthly to review operations, KPIs and other topics. Goals and strategy meetings shall be held on a quarterly basis.

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Page 1 of 5 ends

CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: December 14, 2023
PREPARED BY: Martin Alvarez, Director of Public Works
REQUEST: AWARD CONTRACT NO. C44200B TO AMERICAN LANDSCAPE, INC.,

OF CANOGA PARK, CALIFORNIA, FOR THE GREENS/TEE BOX

RENOVATION AND TURF REDUCTION AT DESERT WILLOW GOLF
RESORT IN THE AMOUNT OF $4,083,396.75 (PROJECT NO. MLS00005) RECOMMENDATION:

1. Award Contract No. C44200B to American Landscape, Inc., of Canoga Park, California, for the Firecliff Golf Course Greens/Tee Box Renovations and Turf Reduction at Desert Willow Golf Resort (DWGR) in the amount of $4,083,396.75.

2. Authorize the Finance Department to set aside a contingency in the amount of $400,000 for unforeseen circumstances.

3. Authorize the Finance Director to appropriate funds in the amount in the amount of $4,473,396.75 from unobligated Desert Willow Capital Fund Balance to Account No. 4414195-4809200, DWGR Capital.

4. Authorize the City Attorney to make any necessary non-monetary changes to the agreement.

5. Authorize the City Manager to execute the agreement and any documents necessary to effectuate the actions taken herewith.

6. Authorize the City Manager to review and approve written contract change orders requests up to the contingency amount per Section 3.30.170 of the Palm Desert Municipal Code.

BACKGROUND/ANALYSIS:

The City-owned Desert Willow Golf Resort consists of two 18-hole golf courses, the Firecliff and Mountain View courses, designed in 1996 and 1998, respectively. The golf resort was developed with a vision to provide amenities to both Palm Desert residents and visitors and as an economic development tool to attract new timeshare units, and hotel and retail development.

The design intent of the Firecliff Course was to provide a championship-style course that would challenge the highly skilled and potentially be used as part of a professional golf tournament.

The design intent of the Mountain View Course was to provide a challenge to avid golfers while providing playability for the average player.

With the heavy golf utilization, the golf courses have experienced over the years, the City contracted with the course architect, Hurdzan Golf, in 2009 to evaluate the condition of both courses including their playability in relation to the original design intent. During their site visits and golf course evaluations, the architects determined that over the years, both golf course greens have become smaller in size; the aggressive growth of the Bermuda grass has encroached onto the greens, the tee boxes have endured significant wear and tear, and bunkers require work to bring playability back original design. Based on the architect’s prioritization of work, the Mountain View Golf Course greens and bunkers were renovated in 2010. The

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City of Palm Desert
(Award Contract for Desert Willow Firecliff Golf Course Renovation)

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renovation of the Firecliff Course bunkers was completed in 2016, but the renovation to the Firecliff greens and tee boxes was placed on hold due to budget constraints.

To address all future long-term improvements necessary to renovate the Firecliff Course and the resort facilities to assist in maintaining the resort’s quality of experience, the City entered into a professional services contract with Hurdzan Golf to develop a long-term capital improvement master plan. The contract award was pursuant to City Ordinance 1392, Section 3.30.080 Professional Services. This master plan serves as the basis for the renovations requested for the greens and tee boxes as part of this project. Based on the findings of the capital improvement master plan, a bunker renovation project was completed in September 2016, including bunker removal/consolidation, grading/drainage improvements, and new bunker sand installation. The bunker renovation project ultimately removed approximately two acres of bunkers to improve playability and pace of play. The bunker renovation project is the only major renovation completed at the Firecliff Golf Course since the course opened in 1997.

In addition to renovations necessary to improve the playability of the course, the City approved the DSRT SURF Specific Plan in 2019, located on Lot Pad B and adjacent to the golf courses.

The Specific Plan includes a 6-acre surf lagoon, surf center, hotel rooms, villas, clubhouse, recreational facilities, and maintenance facilities. To reduce water demand associated with the Specific Plan, the developer is required to implement a Turf Reduction Program, which includes the removal of over one million square feet of turf (22+ acres) within the Desert Willow Golf Courses (Firecliff and Mountain View) and replacing it with drought-tolerant plant materials and low water usage irrigation systems. To minimize the closure time required to complete all required improvements, the City plans to overlap the golf course renovations and turf reduction to the extent feasible. The City will fund the design and construction of the improvements and recover costs associated with the design and construction of the turf reduction from the DSRT SURF developer.

Firecliff Greens Turf Specification:

Staff worked with the original golf course architect Dr. Michael Hurdzan, our local golf course designer Herman Design Group, and our golf course superintendent from Kemper Sports to provide a new turf specification for the replacement of the Firecliff greens. According to our experts, this new specification, including Mini-Verde should provide us with a more sustainable solution as it pertains to both our winter and summer conditions in our desert environment.

Mini Verde is an Ultradwarf Bermuda Grass. Ultra-dwarfs (Mini-Verde) which has been used by nearly every facility in the Coachella Valley that has done a greens renovation in the last 5 years.

Mini-Verde has proven to be a superior all-season turf. Mini-Verde also gives us an opportunity to not overseed greens in the fall. In addition to water and seed savings, this will also mean no transition problems in the spring. Mini-Verde turf is currently being used on greens in the valley by The Madison Club, The Hideaway, Eldorado CC, Thunderbird CC, Ironwood CC, Andalusia CC, Morningside CC, MountainView CC, and Porcupine Creek to name a few. Most of these facilities have been renovated within the last 3 years. Our team has spoken to most of the golf course superintendents that have experience with recent greens renovations, and we have received favorable input with the use of mini-verge turf. In addition, our Kemper Sports team put

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City of Palm Desert
(Award Contract for Desert Willow Firecliff Golf Course Renovation)

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together a memorandum describing the benefits and cost savings that can realized with the use of Mini-Verde turf moving forward (see memo attached)
Legal Review:

This report has been reviewed by the City Attorney’s office.

Strategic Plan:

This project will advance the following goals of the Strategic Plan:
 Energy & Sustainability – Priority 1: Reduce per capita consumption of energy and water.
 Energy & Sustainability – Priority 4: Encourage owners of all existing properties to voluntarily retrofit them to obtain reductions in energy and water usage.  Land Use, Housing & Open Space – Priority 1: Enhance Palm Desert as a first-class destination for premier shopping and national retail businesses.  Parks & Recreation – Priority 3: Make recreational and exercise opportunities pervasive in all public spaces.

Project Description:

In the summer of 2022, staff conducted a competitive consultant selection process and the City Council awarded contracts to Hurdzan Golf, the original golf course architect and Hermann Design Group for golf course renovation design and construction support services. The construction plans were completed this summer. Given the complexity of the golf course renovation and the specialty type of work, staff initiated a contractor pre-qualification process in August of 2023. At the conclusion of the pre-qualification process, staff, our design consultants, and the construction management team reviewed and approved two contractors to bid the project:
 American Landscape – Canoga Park, CA
 Wadsworth Golf Construction – Plainfield, IL
On September 18, 2023, pursuant to City Ordinance 1392, a Notice Inviting Bids was issued to both pre-qualified contractors for a formal bidding procedure for the Firecliff Golf Course Project.

On October 5, 2023, staff held a mandatory pre-bid meeting at Desert Willow Golf Resort. Only American Landscape attended the meeting. Staff contacted Wadsworth Golf Construction to inquire why they were not able to attend the mandatory pre-bid meeting. They indicated that due to their upcoming construction projects in 2024 they would not be able to bid on the City’s project.

On October 19, 2023, the bid due date, staff received a bid from American Landscape. The bid result is as follows:

Base Bid Firecliff Greens/Tee Box Renovation $3,378,754.65 Base Bid – update Change sprigs to Mini Verde $17,094.75 Base Bid – update Removal and Replacement of 117 sprinklers $78,039.00 Bid Alternate 1 Turf Reduction 18-holes $319,121.50
Bid Alternate 2 Firecliff Hole No. 10 Tee Box Relocation $290,386.85 Total $4,083,396.75

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City of Palm Desert
(Award Contract for Desert Willow Firecliff Golf Course Renovation)

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Analysis:

Having only received one bid, staff and our team of consultants took an in-depth review of the bid numbers. Our team consisting of Hurdzan Golf Course Architect, Hermann Design Group, landscape architect, and our golf course construction manager from HR Green evaluated the bid numbers. The team met with American Landscape to review all construction line items, the schedule of values to ensure the bid amounts are within current industry standards. Based on this in depth review, staff determined the bid was within industry standards and the project budget established by our team. Below is a summary and comparison of the City’s original project estimate and the American Landscape bid, which reflects a 10% variance in cost.

CITY

BUDGET/ESTIMATE

AMERICAN

LANDSCAPE BID
$

VARIANCE
GREENS/TEE BOX RENOVATION $2,677,721.00 $3,473,888.40 $796,167.40 TURF REDUCTION $805,744.00 $319,121.50 $(486,622.50)
NO. 10 TEE BOX RELOCATION $210,237.00 $290,386.85 $80,149.85 TOTAL $3,693,738.00 $4,083,396.75 $389,694.75
FINANCIAL IMPACT:

This project is included in the approved Capital Improvement Project (CIP) List for Fiscal Year 2023-24 under Account No. 4414196-4809200; however, funds in the amount of $2,760,000 were allocated to Fiscal Year 2024-25 due to the anticipated timing of construction. The cost of construction including contingency totals $4,483,396.75; therefore, staff request an appropriation for $4,473,396.75, with the Year 2 amount to be removed from the CIP List. The cost for design and construction of turf reduction improvements will be reimbursed by the DSRT SURF developer to offset a portion of these costs, pursuant to their agreement.

The following table provides the current project budget and costs.

Item Authorized Available
Budget
Contract Appropriation
Request
Carryover Funds Awarded Contracts $404,790.00
Hurdzan Professional Consulting
Services - A42830
February 1, 2022 $50,000.00
Design Services Herman Design
Group - C44200
September 29, 2022 $305,100.00
Design Services Hermann
Design Group Amend 1
September 6, 2023 $10,000.00 $10,000.00
HR Green Construction
Management – A44920
March 9, 2023 $49,690.00
*Award of C44200B
Construction-American
Landscape
December 14, 2023 $10,000.00 $4,083,396.75
*Contingency C44200B December 14, 2023 $400,000.00
Total $424,790 $4,898,186.75 $4,473,396.75
DSRT SURF Developer Reimbursement $319,121.50
Project Cost $4,579,065.25
*Current request (Year 2 CIP Budget of $2,670,000 will be reduced to 0)

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City of Palm Desert
(Award Contract for Desert Willow Firecliff Golf Course Renovation)

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ATTACHMENTS:

1. Agreement

2. Bonds

3. Contractor Proposal

4. Revised Bid Form

5. Kemper Sports Memorandum

6. Australian Turf Study

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Contract No. C44200B
1 Revised 07-2023
BBK 72500.00001\32374943.1

CITY OF PALM DESERT

CONTRACT FOR CONSTRUCTION
This Agreement is made and entered into this 14th day of December, 2023, by and between the City of Palm Desert, a municipal corporation organized under the laws of the State of California with its principal place of business at 73-510 Fred Waring Drive, Palm Desert, California 92260- 2578, (“City”) and American Landscape, Inc., a Corporation, with its principal place of business at 7013 Owensmouth Avenue, Canoga Park, CA 91303 ("Contractor").

WITNESSETH: That the parties hereto have mutually covenanted and agreed, and by these presents do covenant and agree with each other as follows:

ARTICLE 1. SCOPE OF WORK.

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

Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort Project
Project No. MLS00005 (854-21)
(hereinafter referred to as “the Project”).

Contractor is an independent contractor and not an agent of the City. The Contractor and its surety shall be liable to the City for any damages arising as a result of the Contractor’s failure to comply with this obligation.

ARTICLE 2. TIME FOR COMPLETION.

Time is of the essence in the performance of the Work. The Work shall be commenced on the date stated in the City’s Notice to Proceed. The Contractor shall complete all Work required by the Contract Documents within 90 Days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work.

ARTICLE 3. CONTRACT PRICE.

The City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of Four Million Eighty-Three Thousand, Three Hundred Ninety-Six Dollars and 75/100 ($4,083,396.75).

Payment shall be made as set forth in the General Conditions. The City will pay to Contractor compensation based upon the prices set forth in the Bid Schedule.

ARTICLE 4. LIQUIDATED DAMAGES.

Contractor acknowledges that the City will sustain actual damages for each and every Day completion of the Project is delayed beyond the Contract Time. Because of the nature of the Project, it would be impracticable or extremely difficult to determine the City’s actual damages. Accordingly, in accordance with Government Code section 53069.85, it is agreed that the Contractor will pay the City the sum of $1,000.00 for each and every Day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the event this is not paid, the Contractor agrees the City may deduct that amount from any money

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2 Revised 07-2023
BBK 72500.00001\32374943.1
due or that may become due the Contractor under the Contract. This Section does not exclude recovery of other damages specified in the Contract Documents. Liquidated damages may be deducted from progress payments due Contractor, Project retention or may be collected directly from Contractor, or from Contractor's surety. These provisions for liquidated damages shall not prevent the City, in case of Contractor's default, from terminating the Contractor.

ARTICLE 5. COMPONENT PARTS OF THE CONTRACT.

The “Contract Documents” include the following:

Notice Inviting Bids
Instructions to Bidders
Bid Forms
Bid Acknowledgement
Bid Schedule
Bid Guarantee
Designation of Subcontractors
Information Required of Bidders
Non-Collusion Declaration Form
Iran Contracting Act Certification
Public Works Contractor DIR Registration Certification
Performance Bond
Payment (Labor and Materials) Bond
Contract for Construction
General Conditions
Special Conditions
Specifications
Addenda
Construction Plans and Drawings
Standard Specifications for Public Works Construction “Greenbook”, latest edition, Except Sections 1-9
Standard Plans of the City of Palm Desert, latest edition Standard Plans for Public Works Construction, latest edition Caltrans Standard Specifications, latest edition, Except Division 1 Caltrans Standard Plans, latest edition
California Manual on Traffic Control Devices for Streets and Highways (CAMUTCD), latest edition
Work Area Traffic Control Handbook, latest edition
Reference Specifications
Approved and fully executed Change Orders
Permits
Any other documents contained in or incorporated into the Contract The Contractor shall complete the Work in strict accordance with all of the Contract Documents.

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BBK 72500.00001\32374943.1
ARTICLE 6. PROVISIONS REQUIRED BY LAW AND CONTRACTOR COMPLIANCE.

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

ARTICLE 7. INDEMNIFICATION AND INSURANCE
A. Indemnification

1. To the fullest extent permitted by law, Contractor shall immediately defend (with counsel of the City’s choosing), indemnify, and hold harmless the City, its officials, officers, agents, employees, and representatives, and each of them from and against:
(a) Any and all claims, demands, causes of action, costs, expenses, injuries, losses or liabilities, in law or in equity, of every kind or nature whatsoever, but not limited to, injury to or death, including wrongful death, of any person, and damages to or destruction of property of any person, arising out of, related to, or in any manner directly or indirectly connected with the Work or this Contract, including claims made by subcontractors for nonpayment, including without limitation the payment of all consequential damages and attorney’s fees and other related costs and expenses, however caused, regardless of whether the allegations are false, fraudulent, or groundless, and regardless of any negligence of the City or its officers, employees, or authorized volunteers (including passive negligence), except the sole negligence or willful misconduct or active negligence of the City or its officials, officers, employees, or authorized volunteers;
(b) Contractor’s defense and indemnity obligation herein includes, but is not limited to damages, fines, penalties, attorney’s fees and costs arising from claims under the Americans with Disabilities Act (ADA) or other federal or state disability access or discrimination laws arising from Contractor’s Work during the course of construction of the improvements or after the Work is complete, as the result of defects or negligence in Contractor’s construction of the improvements;
(c) Any and all actions, proceedings, damages, costs, expenses, fines, penalties or liabilities, in law or equity, of every kind or nature whatsoever, arising out of, resulting from, or on account of the violation of any governmental law or regulation, compliance with which is the responsibility of Contractor; (d) Any and all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense which any of them may incur with respect to the failure, neglect, or refusal of Contractor to faithfully perform the Work and all of Contractor’s obligations under Contract.

Such costs, expenses, and damages shall include all costs, including attorney’s fees, incurred by the indemnified parties in any lawsuit to which they are a party.

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Contract No. C44200B
4 Revised 07-2023
BBK 72500.00001\32374943.1

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

B. Insurance

1. Without limiting Contractor’s indemnification of City, and prior to commencement of Work, Contractor shall obtain, provide, and maintain at its own expense during the term of this Contract, policies of insurance of the type and amounts described below and in a form that is satisfactory to City.

4. Umbrella or Excess Liability Insurance. Contractor may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Contractor may obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury, and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability, automotive liability and employer’s liability. Such policy or policies shall include the following terms and conditions:

A drop-down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;

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BBK 72500.00001\32374943.1
(a) Pay on behalf of wording as opposed to reimbursement; and (b) Concurrency of effective dates with primary policies; and (c) Policies shall “follow form” to the underlying primary policies; and (d) Insureds under primary policies shall also be insureds under the umbrella or excess policies.

6. Fidelity Coverage. Reserved.

7. Pollution Liability Insurance. Environmental Impairment Liability Insurance shall be written on a Contractor’s Pollution Liability form or other form acceptable to the City providing coverage for liability arising out of sudden, accidental, and gradual pollution and remediation. The policy limit shall be no less than $1,000,000 dollars per claim and in the aggregate. All activities contemplated in this Agreement shall be specifically scheduled on the policy as “covered operations”. The policy shall provide coverage for the hauling of waste from the Project site to the final disposal location, including non-owned disposal sites.

8. Builder’s Risk Insurance. Upon commencement of construction and with approval of City, Contractor shall obtain and maintain builder’s risk insurance for the entire duration of the Project until only the City has an insurable interest. The Builder’s Risk coverage shall include the coverages as specified below. (a) The named insureds shall be Contractor and City, including its officers, officials, employees, and agents. All subcontractors (excluding those solely responsible for design Work) of any tier and suppliers shall be included as additional insureds as their interests may appear. Contractor shall not be required to maintain property insurance for any portion of the Project following transfer of control thereof to City. The policy shall contain a provision that all proceeds from the builder’s risk policy shall be made payable to the City of Palm Desert. The City will act as a fiduciary for all other interests in the Project. (b) Policy shall be provided for replacement value on an "all risk" basis for the completed value of the project. There shall be no coinsurance penalty or provisional limit provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, Nonconforming Work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities,

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Contract No. C44200B
6 Revised 07-2023
BBK 72500.00001\32374943.1
fixtures and all other properties constituting a part of the Project; (4) Ordinance or law coverage for contingent rebuilding, demolition, and increased costs of construction; (5) transit coverage (unless insured by the supplier or receiving contractor), with sub-limits sufficient to insure the full replacement value of any key equipment item; (6) Ocean marine cargo coverage insuring any Project materials or supplies, if applicable; (7) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site or any staging area. Such insurance shall be on a form acceptable to City to ensure adequacy of terms and sublimits and shall be submitted to the City prior to commencement of construction.

C.Other Provisions or Requirements

4. Products/Completed Operations Coverage. Products/completed operations coverage shall extend a minimum of three (3) years after project completion.

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Contract No. C44200B
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BBK 72500.00001\32374943.1
Contractor, or City will withhold amounts sufficient to pay premium from Contractor payments. In the alternative, City may cancel this Contract.

7. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against the City, its elected or appointed officers, agents, officials, employees, and volunteers, or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against the City, its elected or appointed officers, agents, officials, employees, and volunteers and shall require similar written express waivers and insurance clauses from each of its subcontractors.

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BBK 72500.00001\32374943.1

14. Pass Through Clause. Contractor agrees to ensure that its sub-consultants, subcontractors, and any other party involved with the Project who is brought onto or involved in the project by Contractor, provide the same minimum insurance coverage and endorsements required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Contractor agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the Project will be submitted to City for review.

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Contract No. C44200B
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BBK 72500.00001\32374943.1
ARTICLE 8. PREVAILING WAGES.

ARTICLE 9. FALSE CLAIMS.

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Contract No. C44200B
10 Revised 07-2023
BBK 72500.00001\32374943.1

SIGNATURE PAGE TO LONG FORM CONSTRUCTION AGREEMENT

BY AND BETWEEN THE CITY OF PALM DESERT
AND AMERICAN LANDSCAPE, INC.

IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.

CITY OF PALM DESERT
By:

L. Todd Hileman
City Manager
Attest:

By:

Anthony J. Mejia
City Clerk
Approved as to form:

By:

Best Best & Krieger LLP
City Attorney
AMERICAN LANDSCAPE, INC., A

CORPORATION
By:

Its:

Printed Name:

By:

Its:

Printed Name:

Contractor’s License Number and
Classification
1000005457
DIR Registration Number (if applicable)
QC: _____
Insurance:
_____
Initial Review
_____
Final Approval
Bonds: _____

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Contract No. C44200B
Exhibit “C”
Revised 11-2-20
BBK 72500.00001\32374915.1

PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:

THAT WHEREAS, the City of Palm Desert (hereinafter referred to as “City”) has awarded to American Landscape, Inc., (hereinafter referred to as the “Contractor”) an agreement for Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort (hereinafter referred to as the “Project”).

WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated December 14, 2023, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.

NOW, THEREFORE, we, American Landscape, Inc., the undersigned Contractor and _____________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of Four Million Eighty-Three Thousand, Three Hundred Ninety-Six Dollars and 75/100, ($4,083,396.75), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.

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

As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship, Surety shall undertake and faithfully fulfill all such obligations. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under the Contract, law, or equity, including, but not limited to, California Code of Civil Procedure section 337.15.

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Contract No. C44200B
(2) Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
(3) Permit the City to complete the Project in any manner consistent with local, California and federal law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.

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

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Contract No. C44200B
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20____.
(Corporate Seal)
Contractor/ Principal
By ________________________
Title_______________________________
(Corporate Seal) Surety
By_________________________________
Title_______________________________
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate)
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.

The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)

THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)
(Name and Address of Agent or
Representative for service of
process in California, if different
from above)
(Telephone number of Surety and
Agent or Representative for
service of process in California)
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.

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Contract No. C44200B
NOTE: This acknowledgment is to be completed for Contractor/Principal.

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

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

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

WITNESS my hand and official seal.
_____________________________________________
Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above

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Contract No. C44200B
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of-Attorney to local representatives of the bonding company must also be attached.

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

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

WITNESS my hand and official seal.
_____________________________________________
Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above

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Contract No. C44200B

PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Palm Desert (hereinafter designated as the “City”), by action taken or a resolution passed December 14, 2023, has awarded to American Landscape, Inc., hereinafter designated as the “Principal,” a contract for the work described as follows:

Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort Project (the “Project”).; and
WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated December 14, 2023, (“Contract Documents”), the terms and conditions of which are expressly incorporated by reference; and WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.

NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal sum of Four Million Eighty-Three Thousand, Three Hundred Ninety-Six Dollars and 75/100, ($4,083,396.75) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

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

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

It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or

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Contract No. C44200B
relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of sections 2819 and 2845 of the California Civil Code.
[SIGNATURES ON NEXT PAGE]

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Contract No. C44200B
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/ Principal
By ________________________
Title_______________________________

(Corporate Seal) Surety
By
__________________________________
Title_______________________________
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate)
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached. A Power-of-Attorney authorizing the person signing on behalf of the Surety to do so much be attached hereto.

NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.

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Contract No. C44200B
NOTE: This acknowledgment is to be completed for Contractor/Principal.

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

WITNESS my hand and official seal.
_____________________________________________
Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above

Page 725 of 1057 ends

Contract No. C44200B
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of-Attorney to local representatives of the bonding company must also be attached.

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

WITNESS my hand and official seal.
_____________________________________________
Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above

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City of Palm Desert
PW - Operations & Maintenance
Randy Chavez, Deputy Director
73-510 Fred Waring Drive, Palm Desert, CA 92260

PROPOSAL DOCUMENT REPORT
IFB No. MLS00005 (854-21)
Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort RESPONSE DEADLINE: October 19, 2023 at 9:00 am
Report Generated: Thursday, October 26, 2023
American Landscape, Inc Proposal

CONTACT INFORMATION
Company:

American Landscape, Inc
Email:
[email protected]
Contact:

Gary Peterson
Address:
7013 Owensmouth Avenue
Canoga Park, CA 91303
Phone:
(818) 963-1776
Website:
www.americanlandscape.com
Submission Date:

Oct 18, 2023 11:45 PM

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PROPOSAL DOCUMENT REPORT
IFB No. MLS00005 (854-21)
Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

PROPOSAL DOCUMENT REPORT
PUBLIC WORKS - Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

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ADDENDA CONFIRMATION
No addenda issued

QUESTIONNAIRE

1. BID ACKNOWLEDGMENT*
To the City of Palm Desert, a municipal corporation, organized under the laws of the State of California, with its principal place of business at 73-510 Fred Waring Drive, Palm Desert, California 92260.

A. In response to the Contract Documents for project number MLS00005 (854-21) and in accordance with the accompanying Instructions to Bidders, the undersigned hereby proposes to the City to furnish all labor, technical and professional services, supervision, materials and equipment, other than materials and equipment specified as furnished by the City, and to perform all operations necessary and required to construct the Project in accordance with the provisions of the Contract Documents and any addenda thereto, and at the prices stated opposite the respective items set forth in the Bid Schedule.

B. This Bid constitutes a firm offer to the City which cannot be withdrawn for 90 calendar days after the date set for opening of Bids, or until a Contract is executed by the City and a third party, whichever is earlier.

C. The undersigned certifies that it has examined and is fully familiar with all of the provisions of the Contract Documents and any addenda thereto; that it has carefully checked all of the words and figures shown in its Bid Schedule; that it has carefully reviewed the accuracy of all statements in this Bid and attachments hereto; and that it understands and agrees that the City will not be responsible for any errors or omissions on the part of the undersigned in preparing this Bid.

D. If awarded a Contract, the undersigned agrees to execute and deliver to the City within ten (10) Days after date of receipt of Notice of Award, a signed Contract and the necessary Performance Bond, Payment Bond, and Certificates of Insurance and Endorsements.

E. All Bid Forms, which have been completed and executed by undersigned Bidder, are incorporated by this reference and made a part of this Bid.

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PROPOSAL DOCUMENT REPORT
IFB No. MLS00005 (854-21)
Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

PROPOSAL DOCUMENT REPORT
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F. The undersigned is hereby representing that it is and will be properly licensed both at the time that it submits a Bid as well as at the time the Contract is awarded, if the Contract is awarded to the undersigned.

1. If Individual Contractor. Undersigned certifies that it is now licensed in accordance with the provisions of the Contractor's License Law of the State of California; or

2. If Joint Venture. Undersigned certifies that the individual members of the joint venture are now licensed in accordance with the provisions of the Contractor's License Law of the State of California.

I hereby certify under penalty of perjury under the laws of the State of California that all of the information submitted in connection with this Bid and all of the representations made herein are true and correct.

Confirmed

2. BID SCHEDULE*
IMPORTANT:

THE ELECTRONIC #BID SCHEDULE MUST BE COMPLETED BY EACH BIDDER AND PROPERLY SUBMITTED ON OPENGOV PROCUREMENT.

FAILURE TO COMPLETE THE BID SCHEDULE WILL RESULT IN AN INCOMPLETE AND NON-RESPONSIVE BID.

THE ELECTRONIC BID SCHEDULE WILL BE INCORPORATED INTO THE CONTRACT DOCUMENTS.

The costs for any Work shown or required in the Contract Documents, but not specifically identified as a line item are to be included in the related line items and no additional compensation shall be due to Contractor for the performance of the Work. All blank spaces appearing in the Electronic Bid Schedule must be filled in. Failure to fill in any blank spaces may render the bid non-responsive.

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

If the Contract Documents specify Alternate Bid items, the City can choose to include any, all, or none of the Alternate Bid items in the Work. If the City selects any of the Alternate Bid items, the corresponding Alternate Bid prices shall be added to or deducted from Base Bid Price for the Work. The City can award/select Alternate Bid items at any time(s).

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PROPOSAL DOCUMENT REPORT
IFB No. MLS00005 (854-21)
Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

PROPOSAL DOCUMENT REPORT
PUBLIC WORKS - Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

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I certify that I have read, understood the above statement.

Confirmed

3. BID GUARANTEE*
IF SUBMITTING AN ORIGINAL BID BOND: Please download the Bid Bond Form under #ATTACHMENTS, and Mail or hand deliver in a sealed and labeled envelope including the Project Number, Project Title, and Project Due Date visible on the outside of the envelope to the City Clerk's Office located at 73-510 Fred Waring Drive, Palm Desert, CA 92260 before the bid submittal deadline.

IF SUBMITTING CASH OR CASHIER'S CHECK:Mail or hand deliver in a sealed and labeled envelope including the Project Number, Project Title, and Project Due Date visible on the outside of the envelope to the City Clerk's Office located at 73-510 Fred Waring Drive, Palm Desert, CA 92260 before the bid submittal deadline.

IF SUBMITTING AN E-BID BOND: follow E-Bid Bond instructions.

Hard Copy Original Bid Bond (delivered before bid submittal deadline)

4. E-Bid Bond
Please enter your Bid Bond information from Surety2000 below ONLY IF YOU ARE NOT SUBMITTING A HARD COPY BID BOND, CASH, OR CASHIER'S CHECK.

Bond ID: No response submitted
Vendor ID: No response submitted

5. Enter Surety Company "Name" who Issued Bid Guarantee * This information will be verified against the California Department of Insurance Website.

Lockton Insurance Brokers, LLC
Click to Verify Value will be copied to clipboard

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PROPOSAL DOCUMENT REPORT
IFB No. MLS00005 (854-21)
Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

PROPOSAL DOCUMENT REPORT
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6. DESIGNATION OF SUBCONTRACTORS*
Please download the below documents, complete, and upload. • DESIGNATION_OF_SUBCONTRACTO...

Designation.pdf

7. BIDDER INFORMATION AND EXPERIENCE FORM*
Please download the below documents, complete, and upload. • BIDDER_INFORMATION_AND_EXPE...

Bidder_Info.pdf

8. NON-COLLUSION DECLARATION*
The undersigned declares:

I am an authorized representative of my company, the party making the foregoing Bid, to certify the following.

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

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

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

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PROPOSAL DOCUMENT REPORT
IFB No. MLS00005 (854-21)
Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

PROPOSAL DOCUMENT REPORT
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Confirmed

9. IRAN CONTRACTING ACT CERTIFICATION*
(Public Contract Code section 2200 et seq.)
As required by California Public Contract Code Section 2204, the Contractor certifies subject to penalty for perjury that the option selected below relating to the Contractor’s status in regard to the Iran Contracting Act of 2010 (Public Contract Code Section 2200 et seq.) is true and correct:

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

The Contractor is not identified on the current list of person and entities engaged in investment activities in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code Section 2203; or a financial instruction that extends, for 45 calendar days or more, credit in the amount of $20,000,000 or more to any other person or entity identified on the current list of persons and entities engaging in investment activities in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code Section 2203, if that person or entity uses or will use the credit to provide goods or services in the energy sector in Iran.

10. PUBLIC WORKS CONTRACTOR DIR REGISTRATION CERTIFICATION* Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. See http://www.dir.ca.gov/Public-Works/PublicWorks.html for additional information.

No bid will be accepted, nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work.

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

Unless Bidder is exempt pursuant to the small project exemption, Bidder further acknowledges:

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PROPOSAL DOCUMENT REPORT
IFB No. MLS00005 (854-21)
Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

PROPOSAL DOCUMENT REPORT
PUBLIC WORKS - Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

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

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

C. Failure to submit this form or comply with any of the above requirements may result in a finding that the bid is nonresponsive.

Confirmed

11. CONTRACTOR’S CERTIFICATE REGARDING WORKERS’ COMPENSATION* I am aware of the provisions of section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this Contract.

Confirmed

12. Enter your valid CA Contractors State License Board (CSLB) number* Please enter your License Number here. This will be verified against the state database. 288229
Click to Verify Value will be copied to clipboard

13. Enter your California Department of Industrial Relations (DIR) Registration number* Please enter your Public Works Contractor DIR Number. This will be verified against the state database. 1000005457
Click to Verify Value will be copied to clipboard

14. Type of Business*
C Corporation (if corporation, two signatures are required)

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PROPOSAL DOCUMENT REPORT
IFB No. MLS00005 (854-21)
Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

PROPOSAL DOCUMENT REPORT
PUBLIC WORKS - Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

Page 8 ends

15. Type your Legal Company Name Here*
State your Company's Name Here. This will be verified against the California Secretary of State's Website.

American Landscape, Inc.

Click to Verify Value will be copied to clipboard

16. How many years has Bidder’s organization been in business as a Contractor? * 49 17. List the Signatory(s) Authorized to Sign and Bind an Agreement.* (If two (2) signatures are required, include the following information for both signatories) A. Full Name
B. Title
C. Physical Business Address
D. Email Address
E. Phone Number
Gary Peterson
President
7013 Owensmouth Avenue., Canoga Park, CA 91303
[email protected]
818-999-2041 x 203
Jamie Tsui

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PROPOSAL DOCUMENT REPORT
IFB No. MLS00005 (854-21)
Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

PROPOSAL DOCUMENT REPORT
PUBLIC WORKS - Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

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Secretary
7013 Owensmouth Ave., Canoga Park, CA 91303
[email protected]
818-999-2041 x 214

PRICE TABLES

BASE BID
Irrigation, Landscape, and Material Costs. Line items to include Labor, Material, and Equipment needed to complete task.

Line Item Description Quantity Unit of
Measure
Unit Cost Total

PROJECT FACILITATION
1 Mobilization / Demobilization (Not to exceed 5% of Total Estimate Cost) 1 LS $199,364.00 $199,364.00 2 Dust Control 1 LS $31,000.00 $31,000.00
3 Establish Borrow Pits 1 LS $22,000.00 $22,000.00

TEE COMPLEX RENOVATION / EXPANSION
4 Landscape Demolition 1 LS $36,400.00 $36,400.00
5 Turf Removal and Hauling Onsite 132,860 SF $0.42 $55,801.20 6 Irrigation Removal and Modifications 1 LS $329,170.00 $329,170.00 7 Layout Staking 1 LS $7,000.00 $7,000.00

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PROPOSAL DOCUMENT REPORT
IFB No. MLS00005 (854-21)
Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

PROPOSAL DOCUMENT REPORT
PUBLIC WORKS - Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

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Line Item Description Quantity Unit of
Measure
Unit Cost Total
8 Import Materials for Leveling 1,230 CY $62.00 $76,260.00 9 Rough Shaping 1 LS $6,000.00 $6,000.00
10 Finish Shaping/Laser Level Tee Tops 132,860 SF $2.30 $305,578.00 11 Seed Bed Prep/Soil Amendments 132,860 SF $0.07 $9,300.20 12 Finish Float Tee Surface 132,860 SF $0.02 $2,657.20
13 Irrigation As-Built 1 LS $3,500.00 $3,500.00
14 Grassing (Tifgreen 328 Sod) 132,860 SF $2.16 $286,977.60 15 DG Refreshment (2” Depth) 1,916 CY $220.00 $421,520.00 16 Miscellaneous Drainage Modifications 1 Allow $19,000.00 $19,000.00

GREEN(S) COMPLEX EXPANSION
17 Turf and Soil Removal (3.5” Depth) and Hauling Onsite 113,965 SF $0.63 $71,797.95 18 Scarification of Surface 113,965 SF $0.02 $2,279.30
19 Basamid (or Approved Equal) Application 113,965 SF $2.25 $256,421.25 20 Irrigation Removal and Modifications 19 EA $26,450.00 $502,550.00 21 Layout Staking 1 LS $3,500.00 $3,500.00
22 Install Greens Mix (4" Depth) 2,210 Tons $195.00 $430,950.00

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PROPOSAL DOCUMENT REPORT
IFB No. MLS00005 (854-21)
Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

PROPOSAL DOCUMENT REPORT
PUBLIC WORKS - Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

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Line Item Description Quantity Unit of
Measure
Unit Cost Total
23 Rototill to 6" Depth 113,965 SF $0.03 $3,418.95
24 Finish Shape Greens Surface 113,965 SF $0.30 $34,189.50 25 Soil Amendments 113,965 SF $0.13 $14,815.45
26 Finish Float Greens Surface 113,965 SF $0.03 $3,418.95 27 Grassing (Certified TifDwarf Springs) 113,965 SF $2.14 $243,885.10 TOTAL $3,378,754.65

BID ALTERNATE ONE

GENERAL TURF REDUCTION
Line Item Description Quantity Unit of
Measure
Unit Cost Total
28 Dust Control 1 LS $16,065.00 $16,065.00
29 Turf Removal via Bleckavator 384,435 SF $0.06 $23,066.10 30 Shaping 384,435 SF $0.04 $15,377.40
31 Staking of Cobble Limits and Boulder Locations 1 LS $1,905.00 $1,905.00 32 Flag Plant Locations 1 LS $2,850.00 $2,850.00
33 Irrigation Removal and Modifications 1 LS $35,790.00 $35,790.00 34 Planting/Irrigation/Rocks/Boulders 1 LS $168,784.00 $168,784.00

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PROPOSAL DOCUMENT REPORT
IFB No. MLS00005 (854-21)
Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

PROPOSAL DOCUMENT REPORT
PUBLIC WORKS - Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

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Line Item Description Quantity Unit of
Measure
Unit Cost Total
35 60-Day Maintenance Period 1 LS $55,284.00 $55,284.00 TOTAL $319,121.50

BID ALTERNATE TWO
10TH TEE RELOCATION
Line Item Description Quantity Unit of
Measure
Unit Cost Total
36 Cart Path Demolition 2,975 SF $4.37 $13,000.75
37 Clearing and Grubbing 29,990 SF $0.93 $27,890.70
38 Turf Removal and Hauling Onsite 6,070 SF $0.42 $2,549.40 39 Drainage Modification – 12” x 12” Concrete Box Drainage Inlet with Grate 2 EA $827.00 $1,654.00 40 Drainage Modification – 6” PVC Drainage Pipe 100 LF $30.00 $3,000.00 41 Irrigation Removal and Modifications 1 LS $600.00 $600.00 42 Layout Staking 1 LS $2,118.00 $2,118.00
43 Import Materials for Tee Leveling 57 CY $110.00 $6,270.00 44 Rough Shaping 1 LS $255.00 $255.00
45 Cart Path Construction per Plans 3,805 SF $15.00 $57,075.00 46 Concrete Curb – 4” x 8” per Plans 265 LF $20.00 $5,300.00

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PROPOSAL DOCUMENT REPORT
IFB No. MLS00005 (854-21)
Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

PROPOSAL DOCUMENT REPORT
PUBLIC WORKS - Greens/Tee Box Renovation and Turf Reduction at Desert Willow Golf Resort

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Line Item Description Quantity Unit of
Measure
Unit Cost Total
47 Finish Shaping / Laser Level Tee Tops 6,070 SF $3.00 $18,210.00 48 Seed Bed Prep/Soil Amendments 6,070 SF $0.85 $5,159.50 49 Finish Float Tee Surface 6,070 SF $0.05 $303.50
50 Irrigation As-Built 1 LS $2,736.00 $2,736.00
51 Grassing (Tifgreen 328 Sod) 5,680 SF $1.30 $7,384.00 52 DG Refreshment (2” Depth) 179 CY $205.00 $36,695.00
53 Planting/Irrigation/Rocks/Boulders 1 LS $90,031.00 $90,031.00 54 60-Day Maintenance Period 1 LS $10,155.00 $10,155.00 TOTAL $290,386.85

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Desert Willow Golf Resort - Firecliff 11/22/2023
Bid Item Qty Unit Unit Cost Total
1 - Mobilization 1 LS 398,826.30 398,826.30
2 - Dust Control 1 LS 28,710.20 28,710.20
3 - Establish Borrow Pits 1 LS 21,225.00 21,225.00
Project Facilitation Total 448,761.50
4 - Landscape Demolition at Tees 1 LS 34,200.00 34,200.00 5 - Turf Removal and Hauling Onsite at Tees 132860 SF 0.37 49,158.20 6 - Irrigation Removal and Modifications at Tees 1 LS 298,250.00 298,250.00 7 - Layout Staking of Tees 1 LS 6,750.00 6,750.00
8 - Import Materials for Leveling Tees 1230 CY 57.00 70,110.00 9 - Rough Shaping at Tees 1 LS 5,670.00 5,670.00
10 - Finish Shaping/Laser Level Tee Tops 132860 SF 2.11 280,334.60 11 - Seed Bed Prep/Soil Amendments at Tees 132860 SF 0.10 13,286.00 12 - Finish Float Tee Surface 132860 SF 0.01 1,328.60
13 - Irrigation As-Built at Tees 1 LS 3,500.00 3,500.00 14 - Grassing (Tifgreen 328 Sod) at Tees 132860 SF 1.89 251,105.40 15 - DG Refreshment (2" Depth) at Tees 1916 CY 218.00 417,688.00 16 - Misc Drainage Modifications 1 Allow 19,000.00 19,000.00 Tee Complex Renovation / Expansion Total 1,450,380.80
17 - Turf and Soil Removal (3.5" Depth) and Haul Onsite at Greens 113965 SF 0.60 68,379.00 18 - Scarification of Surface at Greens 113965 SF 0.02 2,279.30 19 - Basamid Application at Greens 113965 SF 2.19 249,583.35 20 - Irrigation Removal and Modifications at Greens - See Add Below 19 EA - N/A 21 - Layout Staking at Greens 1 LS 3,500.00 3,500.00
22 - Install Greens Mix (4" Depth) 2210 TN 166.00 366,860.00 23 - Rototill to 6" Depth at Greens 113965 SF 0.03 3,418.95 24 - Finish Shape Greens Surface 113965 SF 0.27 30,770.55 25 - Soil Amendments at Greens 113965 SF 0.49 55,842.85 26 - finish Float Greens Surface 113965 SF 0.03 3,418.95 27 - Grassing (Sprigging TifDwarf) - Changed to Miniverde Sprigs 113965 SF 2.06 234,767.90 Greens Complex Expansion Total 1,018,820.85
Alt #1 - 28 - Dust Control 1 LS 13,100.00 13,100.00
Alt #1 - 29 - Turf Removal Via Bleckavator 384435 SF 0.06 23,066.10 Alt #1 - 30 - Shaping 384435 SF 0.04 15,377.40
Alt #1 - 31 - Staking Of Cobble Limits and Boulder Locations 1 LS 1,905.00 1,905.00 Alt #1 - 32 - Flag Plant Locations 1 LS 2,850.00 2,850.00 Alt #1 - 33 - Irrigation Removal and Modifications 1 LS 509,370.00 509,370.00 Alt #1 - 34 - Planting/Irrigation/Rocks/Boulders 1 LS 168,784.00 168,784.00 Alt #1 - 35 - 60-Day Maintenance 1 LS 55,284.00 55,284.00 Alternate #1 Total 789,736.50
Alt #2 - 36 - Cart Path Demolition 2975 SF 4.37 13,000.75 Alt #2 - 37 - Clearing & Grubbing 29990 SF 0.93 27,890.70 Alt #2 - 38 - Turf Removal And Hauling Onsite 6070 SF 0.42 2,549.40 Alt #2 - 39 - Drainage 12"x12" Concrte Drainage Box 2 EA 827.00 1,654.00 Alt #2 - 40 - Drainage Modification 6" PVC Drain Pipe 100 LF 30.00 3,000.00 Alt #2 - 41 - Irrigation Removal and Modifications 1 LS 13,078.00 13,078.00 Alt #2 - 42 - Layout Staking 1 LS 2,118.00 2,118.00
Alt #2 - 43 - Import Materials For Tee Leveling 57 CY 57.00 3,249.00

Page 749 of 1057 ends

Alt #2 - 44 - Rough Shaping 1 LS 255.00 255.00
Alt #2 - 45 - Cart Path Construction 3805 SF 15.00 57,075.00 Alt #2 - 46 - Concrete Curb 4"x8" 265 LF 20.00 5,300.00 Alt #2 - 47 - Finish Shaping/Laser Level Tee Tops 6070 SF 2.11 12,807.70 Alt #2 - 48 - Seed Bed Prep/Soil Amendments 6070 SF 0.10 607.00 Alt #2 - 49 - Finish Float Tee Surface 6070 SF 0.01 60.70 Alt #2 - 50 - Irrigation As-Built 1 LS 2,736.00 2,736.00 Alt #2 - 51 - Grassing - Tifgreen 328 Sod 5680 SF 1.30 7,384.00 Alt #2 - 52 - DG Refreshment 2" Depth 179 CY 218.00 39,022.00 Alt #2 - 53 - Planting/Irrigation/Rocks/Boulders 1 LS 95,715.85 95,715.85 Alt #2 - 54 - 60-Day Maintenance 1 LS 10,155.00 10,155.00 Alternate #2 Total 297,658.10
Grand total 4,005,357.75
Additional Item requested by City - Now shown in bid plans:
20 - Irrigation Removal and Modifications at Greens (Remove and replace existing heads per City's direction) 117 HEADS 667.00 78,039.00

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Page 1 of 2 ends

CITY OF PALM DESERT

STAFF REPORT
MEETING DATE: December 14, 2023
PREPARED BY: Randy Chavez, Deputy Director of Public Works REQUEST: AUTHORIZE THE CITY MANAGER TO AWARD TASK ORDER

CONTRACTS TO MULTIPLE VENDORS FOR CITYWIDE TROPICAL

STORM HILARY MAINTENANCE AND REPAIRS IN AN AMOUNT NOT
TO EXCEED $2,000,000 (PROJECT NO. SDS00003)
RECOMMENDATION:

1. Authorize the City Manager to review and reject bids, waive any minor irregularities, and award task order contracts to qualified contractors for Citywide Tropical Storm Hilary Maintenance and Repairs for a period of two (2) years in an aggregate amount not to exceed $2,000,000, pursuant to the terms of the agreement(s).

2. Authorize the Director of Finance to appropriate $500,000 from General Fund Facility Reserve Funds to Account No. 1104159-4219100.

3. Authorize the City Manager to execute the agreements, and to review and approve up to two (2) additional one-year terms per vendor contract.

4. Authorize the City Attorney to make any necessary non-monetary changes to the agreement.

BACKGROUND/ANALYSIS:

On August 20, 2023, Tropical Storm Hilary brought unprecedented rain to the city. Flood waters and debris from the Morongo Valley basin overwhelmed the City’s storm drain system, catch basins, culverts, and other infrastructure used to convey flood water. Many of the storm channels were silted with over five feet of sediment and debris.

Shortly after the tropical storm, the City Council issued an Emergency Declaration. The declaration enabled staff to mobilize quickly to retain vendors and contractors to repair and clean areas that needed immediate attention. Work included pumping water out of flooded areas, performing cleanup on city streets and rights of way, and clearing retention basins and channels that had been breached by the storm. This initial emergency cleanup focused on strategic locations along the north section of the city. When the Emergency Declaration expired, Purchasing Ordinance procedures were reinstated, and formal bidding processes were reinstated to secure contractors.

The Tropical Storm Hilary Maintenance and Repairs Project entails assessing and cleaning the entire Mid Valley Channel, from Monterey Avenue to Washington Street. The project also will involve cleaning culverts along the whitewater channel at Cook Street and other infrastructure impacted by Tropical Storm Hilary and will be scheduled based on immediate needs. The project is currently being advertised with proposals due January 4, 2024. The review and recommendation process would take an additional several weeks under normal processes.

Page 925 of 1057 ends

City of Palm Desert
Authorize the City Manager to Approve Tropical Strom Hilary Maintenance and Repairs

Page 2 of 2 ends

Due to City Council’s winter break and the possibility of rain in the near future, staff is requesting City Council authorize the City Manager to award Tropical Strom Hilary Maintenance and Repairs task order contracts to vendors who submit qualified proposals. Staff intends to award multiple vendors to expedite cleanup efforts. Due to relatively scarce availability of qualified contractors in the area, staff proposes that the City award the contracts for two (2) year terms; this flexibility can help secure contractors. In order to maximize potential reimbursement from state and federal sources, contractors will be required to adhere to Code of Federal Regulations Part 2, 200.

Legal Review:

This report has been reviewed by the City Attorney’s office.

Strategic Plan:

This project will assist with maintaining City infrastructure in a high-quality state.

FINANCIAL IMPACT:

To date, the City Council has approved a total of $5,050,000 for emergency response and repairs following the Hilary Storm Events. This total includes an appropriation of $1,765,000 and $360,000 to cover the initial emergency response, as well as any immediate anticipated recovery costs; a $2,000,000 appropriation for costs associated with the Mid Valley Channel; and an appropriation of $925,000 for costs associated with Freedom Park.

Currently, a total of $1,508,557 is available in the emergency fund account; however, funds are designated for the repairs at the Mid Valley Channel. Therefore, staff request an appropriation of $500,000 to be utilized for repairs at Cook Street whitewater channel and other infrastructure.

Below is the most recent update relative to this effort:

Description Budget Expenses /
Encumbrances
Pending
Expenses
Balance
Initial Appropriation $1,765,000 $1,338,792 $100,000
August Appropriation $360,000 $360,000
Mid-Valley Channel Appropriation $2,000,0000 $500,000
Freedom Park Appropriation $925,000 $617,651 $625,000
Total $5,050,000 $1,956,443 $1,585,000 $1,508,557
On-call Contractors $2,000,000
Remaining Budget -($491,443)
This Appropriation Request $500,000 $0.00 $0.00 $500,000 ATTACHMENTS:

1. Short-Form Construction Agreement

Page 926 of 1057 ends

Contract No. ___________
Exhibit “A”
Revised 07-2023
BBK 72500.00001\32375220.1

CITY OF PALM DESERT

SHORT FORM CONSTRUCTION CONTRACT

1. Parties and Date. This Agreement is made and entered into this 14th day of December, 2023, by and between the City of Palm Desert, a municipal corporation organized under the laws of the State of California with its principal place of business at 73-510 Fred Waring Drive, Palm Desert, California 92260-2578, (“City”) and [***INSERT NAME OF COMPANY***], Choose an item., with its principal place of business at [***INSERT ADDRESS***] ("Vendor"). The City and Vendor are sometimes individually referred to herein as "Party" and collectively as "Parties."

2. Recitals.

2.1 City. City is a public agency organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.

2.2 Contractor. Contractor desires to perform and assume responsibility for the provision of certain construction services required by the City on the terms and conditions set forth in this Contract. Contractor represents that it is duly licensed and experienced in providing Citywide Tropical Storm Hilary Maintenance and Repairs related construction services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the services in the State of California, and that it is familiar with the plans of City. The following license classifications are required for this Project: Class A or any combination of Class C licenses needed to perform project.

2.3 Project.

The City is a public agency of the State of California and is in need of services for the following project:

Citywide Tropical Storm Hilary Maintenance and Repairs Project Project No. SDS00003
(hereinafter referred to as “the Project”).

2.4 Project Documents & Certifications. Contractor has obtained, and delivers concurrently herewith, Performance Bonds and PYMENT Bonds for each approved Task Order, and insurance as required by the Contract.

3. Terms.

3.1 Incorporation of Documents. This Contract includes and hereby incorporates in full by reference the following documents, including all exhibits, drawings, specifications, and documents therein, and attachments and addenda thereto:
 Services/Schedule (Exhibit “A”)
 Plans and Specifications (Exhibit “B”) RESERVED
 Special Conditions (Exhibit “C”)
 Contractor’s Certificate Regarding Workers’ Compensation (Exhibit “D”)  Public Works Contractor Registration Certification (Exhibit “E”)  Payment and Performance Bonds (Exhibit “F”)
 Task Order Forms (Exhibit “G”)
 Code of Federal Regulations 2. CFR 200 (Exhibit “H”)

3.1.1 Precedence. To the extent there is a conflict between any portions of this Contract, the order of precedence shall be as follows: change orders, special conditions, technical

Page 927 of 1057 ends

Contract No. ___________
Exhibit “A”
Revised 07-2023
BBK 72500.00001\32375220.1
specifications, plans/construction drawings, general contract terms, scope of work, standard plans, advertisements for bid/proposals, bids/proposals or other documents submitted by Contractor.

3.2 Contractor’s Basic Obligation; Scope of Work. Contractor promises and agrees, at its own cost and expense, to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately complete the Project, including all structures and facilities necessary for the Project or described in the Contract (hereinafter sometimes referred to as the “Work”), for a Total Contract Price as specified pursuant to this Contract. All Work shall be subject to, and performed in accordance with the above referenced documents, as well as the exhibits attached hereto and incorporated herein by reference. The plans and specifications for the Work are further described in Exhibit “B” attached hereto and incorporated herein by this reference. Special Conditions, if any, relating to the Work are described in Exhibit “C” attached hereto and incorporated herein by this reference.

3.2.1 Change in Scope of Work. Any change in the scope of the Work, method of performance, nature of materials or price thereof, or any other matter materially affecting the performance or nature of the Work shall not be paid for or accepted unless such change, addition or deletion is approved in advance and in writing by a valid change order executed by the City (“Change Order”).

3.2.1.1 Change Orders. Changes to the Contract Time (as defined in Section 3.3) or Total Contract Price shall be in the form of a written Change Order, either signed by both parties or issued unilaterally by the City. No adjustment shall be made to the Contract Time unless the delay impacts the critical path to completion and the delay was not caused in whole or in part by the Contractor. Failure to timely request a Change Order shall constitute a waiver of any right to adjust the Contract Time or the Total Contract Price. All requests for Change Orders shall be accompanied by detailed supporting documentation, including but not limited to payroll records, invoices, schedules, and any other documentation requested by the City for the purpose of determining the additional costs or the impact of any delay. If the change involves Work bid at a unit price, then the Total Contract Price shall be increased at the unit price. If there is no unit price, then the Total Contract Price shall be adjusted to account for costs actually incurred plus an allowed mark-up of fifteen percent (15%), which shall constitute the entire amount of profit, mark-ups, field or home office overhead costs, including personnel, equipment or office space, any materials, or any costs of equipment idle time for such work. Nothing herein shall prevent the Parties from agreeing to a lump sum cost.
(A) Changes Ordered By City. City may at any time issue a written directive ordering additions, deletions, or changes to the Work. Contractor shall proceed with the work in accordance with the directive. To the extent the directive results in extra work or requires additional Contract Time, Contractor shall request a Change Order within seven (7) days of receiving the Work Directive. If any costs are not capable of being determined within seven (7) days, then Contractor shall request a Change Order within seven (7) days of when the costs are capable of being determined.
(B) Changes Requested By Contractor. With respect to any matter that may involve or require an adjustment to the Contract Time or the Contract Price, Contractor shall provide written notice of the underlying facts and circumstances that gave rise to the potential change within seven (7) days or prior to the alteration of conditions, whichever is earlier. Failure to give notice shall constitute a waiver of Contractor’s right to a change order. If any costs are not capable of being determined within seven (7) days, then Contractor shall request a Change Order within seven (7) days of when the costs are capable of being determined.

Page 928 of 1057 ends

Contract No. ___________
Exhibit “A”
Revised 07-2023
BBK 72500.00001\32375220.1

3.2.2 Substitutions/”Or Equal”. Pursuant to Public Contract Code section 3400(b), the City may make a finding that designates certain products, things, or services by specific brand or trade name. Unless specifically designated in this Contract, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such Specifications shall be deemed to be used for the purpose of facilitating the description of the material, process or article desired and shall be deemed to be followed by the words “or equal”.

Contractor may, unless otherwise stated, offer for substitution any material, process or article which shall be substantially equal or better in every respect to that so indicated or specified in this Contract. However, the City may have adopted certain uniform standards for certain materials, processes, and articles. Contractor shall submit requests, together with substantiating data, for substitution of any “or equal” material, process, or article no later than thirty-five (35) days after award of the Contract. To facilitate the construction schedule and sequencing, some requests may need to be submitted before thirty-five (35) days after award of Contract. Provisions regarding submission of “or equal” requests shall not in any way authorize an extension of time for performance of this Contract. If a proposed “or equal” substitution request is rejected, Contractor shall be responsible for providing the specified material, process, or article. The burden of proof as to the equality of any material, process or article shall rest with Contractor.

The City has the complete and sole discretion to determine if a material, process, or article is an “or equal” material, process or article that may be substituted. Data required to substantiate requests for substitutions of an “or equal” material, process or article data shall include a signed affidavit from Contractor stating that, and describing how, the substituted “or equal” material, process or article is equivalent to that specified in every way except as listed on the affidavit.

Substantiating data shall include any and all illustrations, specifications, and other relevant data including catalog information which describes the requested substituted “or equal” material, process or article, and substantiates that it is an “or equal” to the material, process or article. The substantiating data must also include information regarding the durability and lifecycle cost of the requested substituted “or equal” material, process, or article. Failure to submit all the required substantiating data, including the signed affidavit, to the City in a timely fashion will result in the rejection of the proposed substitution.

Contractor shall bear all of the City’s costs associated with the review of substitution requests. Contractor shall be responsible for all costs related to a substituted “or equal” material, process, or article. Contractor is directed to the Special Conditions (if any) to review any findings made pursuant to Public Contract Code section 3400.

3.3 Period of Performance and Liquidated Damages. Contractor shall perform and complete all Work under this Contract as specified on the approved Task Order, beginning the effective date of the Notice to Proceed (“Contract Time”). Contractor shall perform its Work in strict accordance with any completion schedule, construction schedule or project milestones developed by the City. Such schedules or milestones may be included as part of Exhibits “A” or “B” attached hereto or may be provided separately in writing to Contractor. Contractor agrees that if such Work is not completed within the aforementioned Contract Time and/or pursuant to any such completion schedule, construction schedule or project milestones developed pursuant to provisions of the Contract, it is understood, acknowledged and agreed that the City will suffer damage. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages the sum of TWO HUNDRED FIFTY Dollars ($250.00) per day for each and every calendar day of delay beyond the Contract Time or beyond any completion schedule, construction schedule, or Project milestones established pursuant to the Contract.

Page 929 of 1057 ends

Contract No. ___________
Exhibit “A”
Revised 07-2023
BBK 72500.00001\32375220.1

3.4 Standard of Performance; Performance of Employees. Contractor shall perform all Work under this Contract in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Work. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Work assigned to them. Finally, Contractor represents that it, its employees, and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Work, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Contract. Contractor shall perform, at its own cost and expense and without reimbursement from the City, any work necessary to correct errors or omissions which are caused by Contractor’s failure to comply with the standard of care provided for herein. Any employee who is determined by the City to be uncooperative, incompetent, a threat to the safety of persons or the Work, or any employee who fails or refuses to perform the Work in a manner acceptable to the City, shall be promptly removed from the Project by Contractor and shall not be re-employed on the Work.

3.5 Control and Payment of Subordinates; Contractual Relationship. City retains Contractor on an independent contractor basis and Contractor is not an employee of City. Any additional personnel performing the work governed by this Contract on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance under this Contract and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance.

3.6 City’s Basic Obligation. City agrees to engage and does hereby engage Contractor to furnish all materials and to perform all Work according to the terms and conditions herein contained for the sum set forth above. Except as otherwise provided in the Contract, the City shall pay to Contractor, as full consideration for the satisfactory performance by Contractor of the services and obligations required by this Contract, the below-referenced compensation in accordance with compensation provisions set forth in the Contract.

3.7 Compensation and Payment.

3.7.1 Amount of Compensation. As consideration for performance of the Work required herein, City agrees to pay Contractor the Total Contract Price of Two Million Dollars and No Cents ($2,000,000.00) (“Total Contract Price”) provided that such amount shall be subject to adjustment pursuant to the applicable terms of this Contract or written Change Orders approved and signed in advance by the City.

3.7.2 Payment of Compensation. If the Work is scheduled for completion in thirty (30) or less calendar days, City will arrange for payment of the Total Contract Price upon completion and approval by City of the Work. If the Work is scheduled for completion in more than thirty (30) calendar days, City will pay Contractor on a monthly basis as provided for herein. On or before the fifth (5th) day of each month, Contractor shall submit to the City an itemized application for payment in the format supplied by the City indicating the amount of Work completed since commencement of the Work or since the last progress payment. These applications shall be supported by evidence which is required by this Contract and such other documentation as the City may require. The Contractor shall certify that the Work for which payment is requested has been done and that the materials listed are stored where indicated. Contractor may be required to furnish a detailed schedule of values upon request of the City and in such detail and form as the City shall request, showing the quantities, unit prices, overhead, profit, and all other expenses involved in order to provide a basis for determining the amount of progress payments.

Page 930 of 1057 ends

Contract No. ___________
Exhibit “A”
Revised 07-2023
BBK 72500.00001\32375220.1
Contractor shall submit its final invoice to City within thirty (30) days from the last date of the Work or termination in accordance with this Contract and failure by the Contractor to submit a timely invoice shall constitute a waiver of its right to final payment.

3.7.3 Prompt Payment. City shall review and pay all progress payment requests in accordance with the provisions set forth in Section 20104.50 of the California Public Contract Code. No progress payments will be made for Work not completed in accordance with this Contract. Contractor shall comply with all applicable laws, rules and regulations relating to the proper payment of its employees, subcontractors, suppliers, or others.

3.7.4 Contract Retentions. From each approved progress estimate, 5% will be deducted and retained by the City, and the remainder will be paid to Contractor. All Contract retention shall be released and paid to Contractor and subcontractors pursuant to California Public Contract Code section 7107.

3.7.5 Other Retentions. In addition to Contract retentions, the City may deduct from each progress payment an amount necessary to protect City from loss because of: (1) liquidated damages which have accrued as of the date of the application for payment; (2) any sums expended by the City in performing any of Contractor’s obligations under the Contract which Contractor has failed to perform or has performed inadequately; (3) defective Work not remedied; (4) stop notices as allowed by state law; (5) reasonable doubt that the Work can be completed for the unpaid balance of the Total Contract Price or within the Contract Time; (6) unsatisfactory prosecution of the Work by Contractor; (7) unauthorized deviations from the Contract; (8) failure of Contractor to maintain or submit on a timely basis proper and sufficient documentation as required by the Contract or by City during the prosecution of the Work; (9) erroneous or false estimates by Contractor of the value of the Work performed; (10) any sums representing expenses, losses, or damages as determined by the City, incurred by the City for which Contractor is liable under the Contract; and (11) any other sums which the City is entitled to recover from Contractor under the terms of the Contract or pursuant to state law, including Section 1727 of the California Labor Code. The failure by the City to deduct any of these sums from a progress payment shall not constitute a waiver of the City’s right to such sums.

3.7.6 Substitutions for Contract Retentions. In accordance with California Public Contract Code section 22300, the City will permit the substitution of securities for any monies withheld by the City to ensure performance under the Contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the City, or with a state or federally chartered bank in California as the escrow agent, and thereafter the City shall then pay such monies to Contractor as they come due. Upon satisfactory completion of the Contract, the securities shall be returned to Contractor. For purposes of this Section and Section 22300 of the Public Contract Code, the term “satisfactory completion of the contract” shall mean the time the City has issued written final acceptance of the Work and filed a Notice of Completion as required by law and provisions of this Contract. Contractor shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon. The escrow agreement used for the purposes of this Section shall be in the form provided by the City.

3.7.7 Payment to Subcontractors. Contractor shall pay all subcontractors for and on account of work performed by such subcontractors in accordance with the terms of their respective subcontracts and as provided for in Section 7108.5 of the California Business and Professions Code. Such payments to subcontractors shall be based on the measurements and estimates made and progress payments provided to Contractor pursuant to this Contract.

3.7.8 Title to Work. As security for partial, progress, or other payments, title to Work for which such payments are made shall pass to the City at the time of payment. To the

Page 931 of 1057 ends

Contract No. ___________
Exhibit “A”
Revised 07-2023
BBK 72500.00001\32375220.1
extent that title has not previously been vested in the City by reason of payments, full title shall pass to the City at delivery of the Work at the destination and time specified in this Contract. Such transferred title shall in each case be good, free, and clear from any and all security interests, liens, or other encumbrances. Contractor promises and agrees that it will not pledge, hypothecate, or otherwise encumber the items in any manner that would result in any lien, security interest, charge, or claim upon or against said items. Such transfer of title shall not imply acceptance by the City, nor relieve Contractor from the responsibility to strictly comply with the Contract and shall not relieve Contractor of responsibility for any loss of or damage to items.

3.7.9 Labor and Material Releases. Contractor shall furnish City with labor and material releases from all subcontractors performing work on, or furnishing materials for, the Work governed by this Contract prior to final payment by City.

3.8 Labor

3.8.1 Prevailing Wages. Contractor is aware of the requirements of California Labor Code Section 1720 et seq., and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. Since the Work is being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $25,000 or more for a public works project or $15,000 or more for a maintenance project, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Contract. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request and shall post copies at Contractor’s principal place of business and at the project site. Contractor shall defend, indemnify, and hold the City and their respective officers, agents, employees, volunteers, and representatives free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. Contractor and any subcontractor shall forfeit a penalty of up to $200 per calendar day or portion thereof for each worker paid less than the prevailing wage rates.

3.8.2 Apprenticeable Crafts. When Contractor employs workmen in an apprenticeable craft or trade, Contractor shall comply with the provisions of Section 1777.5 of the California Labor Code with respect to the employment of properly registered apprentices upon public works. The primary responsibility for compliance with said section for all apprenticeable occupations shall be with Contractor. The Contractor or any subcontractor that is determined by the Labor Commissioner to have knowingly violated Section 1777.5 shall forfeit as a civil penalty an amount not exceeding $100 for each full calendar day of noncompliance, or such greater amount as provided by law.

3.8.3 Hours of Work. Contractor is advised that eight (8) hours labor constitutes a legal day’s work. Pursuant to Section 1813 of the California Labor Code, Contractor shall forfeit a penalty of $25.00 per worker for each day that each worker is permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week, except when payment for overtime is made at not less than one and one-half (1-1/2) times the basic rate for that worker.

3.8.4 Payroll Records. Contractor and each subcontractor shall keep an accurate payroll record, 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

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the public work. The payroll records shall be certified and shall be available for inspection at all reasonable hours at the principal office of Contractor in the manner provided in Labor Code section 1776. In the event of noncompliance with the requirements of this section, Contractor shall have 10 days in which to comply subsequent to receipt of written notice specifying in what respects such Contractor must comply with this section. Should noncompliance still be evident after such 10-day period, Contractor shall, as a penalty to City, forfeit not more than $100.00 for each calendar day or portion thereof, for each worker, until strict compliance is effectuated. The amount of the forfeiture is to be determined by the Labor Commissioner. A contractor who is found to have violated the provisions of law regarding wages on Public Works with the intent to defraud shall be ineligible to bid on Public Works contracts for a period of one to three years as determined by the Labor Commissioner. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payments then due. The responsibility for compliance with this section is on Contractor. In accordance with Labor Code section 1771.4, the Contractor and each subcontractor shall furnish the certified payroll records directly to the DIR on a weekly basis and in the format prescribed by the DIR, which may include electronic submission. The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

3.8.5 Contractor and Subcontractor Registration. Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. No bid will be accepted, nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work. Contractor is directed to review, fill out and execute the Public Works Contractor Registration Certification attached hereto as Exhibit “E” prior to contract execution. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.

3.8.6 Labor Compliance; Stop Orders. This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be the Contractor’s sole responsibility to evaluate and pay the cost of complying with all labor compliance requirements under this Contract and applicable law. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Work, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the City.

Contractor shall defend, indemnify, and hold the City and their respective officers, agents, employees, volunteers, and representatives free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.

3.9 Performance of Work; Jobsite Obligations.

3.9.1 Water Quality Management and Compliance.

3.9.1.1 Water Quality Management and Compliance. Contractor shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Work including, without limitation, all applicable provisions of the Federal

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Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); local ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State.

3.9.1.2 Compliance with the Statewide Construction General Permit.

Contractor shall comply with all conditions of the most recent iteration of the National Pollutant Discharge Elimination System General Permit for Storm Water Discharges Associated with Construction Activity, issued by the California State Water Resources Control Board (“Permit”). It shall be Contractor’s sole responsibility to file a Notice of Intent and procure coverage under the Permit for all construction activity which results in the disturbance of more than one acre of total land area, or which is part of a larger common area of development or sale. Prior to initiating work, Contractor shall be solely responsible for preparing and implementing a Storm Water Pollution Prevention Plan (SWPPP) as required by the Permit. Contractor shall be responsible for procuring, implementing, and complying with the provisions of the Permit and the SWPPP, including the standard provisions, and monitoring and reporting requirements as required by the Permit. The Permit requires the SWPPP to be a “living document” that changes as necessary to meet the conditions and requirements of the job site as it progresses through difference phases of construction and is subject to different weather conditions. It shall be Contractor’s sole responsibility to update the SWPPP as necessary to address conditions at the project site.

3.9.1.3 Other Water Quality Rules Regulations and Policies. Contractor shall comply with the lawful requirements of any applicable municipality, drainage City, or local agency regarding discharges of storm water to separate storm drain systems or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.

3.9.1.4 Cost of Compliance. Storm, surface, nuisance, or other waters may be encountered at various times during construction of the Work. Therefore, the Contractor, hereby acknowledges that it has investigated the risk arising from such waters and assumes any and all risks and liabilities arising therefrom.

3.9.1.5 Liability for Non-Compliance. Failure to comply with the Permit is a violation of federal and state law. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to defend, indemnify, and hold harmless the City and their respective directors, officers, agents, employees, volunteers, and representatives for any alleged violations.

In addition, City may seek damages from Contractor for any delay in completing the Work in accordance with the Contract, if such delay is caused by or related to Contractor’s failure to comply with the Permit.

3.9.1.6 Reservation of Right to Defend. City reserves the right to defend any enforcement action brought against the City for Contractor’s failure to comply with the Permit or any other relevant water quality law, regulation, or policy. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to be bound by, and to reimburse the City for the costs (including the City’s attorney’s fees) associated with, any settlement reached between the City and the relevant enforcement entity.

3.9.1.7 Training. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies described in paragraph 3.9.1. Contractor further warrants that it, its employees, and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and

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policies described in paragraph 3.9.1 as they may relate to the Work provided under this Contract.

Upon request, City will provide the Contractor with a list of training programs that meet the requirements of this paragraph.

3.9.2 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. Contractor shall comply with the requirements of the specifications relating to safety measures applicable in particular operations or kinds of work. In carrying out its Work, Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the Work and the conditions under which the Work is to be performed. Safety precautions as applicable shall include, but shall not be limited to, adequate life protection and lifesaving equipment; adequate illumination for underground and night operations; instructions in accident prevention for all employees, such as machinery guards, safe walkways, scaffolds, ladders, bridges, gang planks, confined space procedures, trenching and shoring, fall protection and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and adequate facilities for the proper inspection and maintenance of all safety measures. Furthermore, Contractor shall prominently display the names and telephone numbers of at least two medical doctors practicing in the vicinity of the Project, as well as the telephone number of the local ambulance service, adjacent to all telephones at the Project site.

3.9.3 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state, and federal laws, rules and regulations in any manner affecting the performance of the Contract or the Work, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with the Work. If Contractor observes that the drawings or specifications are at variance with any law, rule, or regulation, it shall promptly notify the City in writing. Any necessary changes shall be made by written Change Order. If Contractor performs any work knowing it to be contrary to such laws, rules, and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Contract to the same extent as though set forth herein and will be complied with.

3.9.4 Permits and Licenses. Contractor shall be responsible for securing City permits and licenses necessary to perform the Work described herein, including, but not limited to, any required business license. While Contractor will not be charged a fee for any City permits, Contractor shall pay the City’s business license fee, if any. Any ineligible contractor or subcontractor pursuant to Labor Code Sections 1777.1 and 1777.7 may not perform work on this Project.

3.9.5 Trenching Work. If the Total Contract Price exceeds $25,000 and if the Work governed by this Contract entails excavation of any trench or trenches five (5) feet or more in depth, Contractor shall comply with all applicable provisions of the California Labor Code, including Section 6705. To this end, Contractor shall submit for City’s review and approval a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer.

3.9.6 Hazardous Materials and Differing Conditions. As required by California Public Contract Code section 7104, if this Contract involves digging trenches or other excavations

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that extend deeper than four (4) feet below the surface, Contractor shall promptly, and prior to disturbance of any conditions, notify City of: (1) any material discovered in excavation that Contractor believes to be a hazardous waste that is required to be removed to a Class I, Class II or Class III disposal site; (2) subsurface or latent physical conditions at the site differing from those indicated by City; and (3) unknown physical conditions of an unusual nature at the site, significantly different from those ordinarily encountered in such contract work. Upon notification, City shall promptly investigate the conditions to determine whether a Change Order is appropriate.

In the event of a dispute, Contractor shall not be excused from any scheduled completion date and shall proceed with all Work to be performed under the Contract but shall retain all rights provided by the Contract or by law for making protests and resolving the dispute.

3.9.7 Underground Utility Facilities. To the extent required by Section 4215 of the California Government Code, City shall compensate Contractor for the costs of: (1) locating and repairing damage to underground utility facilities not caused by the failure of Contractor to exercise reasonable care; (2) removing or relocating underground utility facilities not indicated in the construction drawings; and (3) equipment necessarily idled during such work. Contractor shall not be assessed liquidated damages for delay caused by failure of City to provide for removal or relocation of such utility facilities.

3.9.8 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Although CARB limits and requirements are broader, Contractor shall specifically be aware of their application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify City against any fines or penalties imposed by CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Contract.

3.9.9 State Recycling Mandates. Contractor shall comply with State Recycling Mandates. Any recyclable materials/debris collected by the Contractor that can be feasibly diverted via reuse or recycling must be hauled by the appropriate handler for reuse or recycling.

3.9.10 Inspection Of Site. Contractor has visited sites where Work is to be performed and has become acquainted with all conditions affecting the Work. Contractor warrants that it has made such examinations as it deems necessary to determine the condition of the Work sites, its accessibility to materials, workmen and equipment, and to determine the Contractor’s ability to protect existing surface and subsurface improvements. No claim for allowances–time or money–will be allowed as to such matters.

3.9.11 Field Measurements. Contractor shall make field measurements, verify field conditions, and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents before commencing activities.

Errors, inconsistencies, or omissions discovered shall be reported to the City immediately and prior to performing any work or altering the condition.

3.10 Completion of Work. When Contractor determines that it has completed the Work required herein, Contractor shall so notify City in writing and shall furnish all labor and material releases required by this Contract. City shall thereupon inspect the Work. If the Work is not acceptable to the City, the City shall indicate to Contractor in writing the specific portions or items of Work which are unsatisfactory or incomplete. Once Contractor determines that it has completed the incomplete or unsatisfactory Work, Contractor may request a re-inspection by the City. Once

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the Work is acceptable to City, City shall pay to Contractor the Total Contract Price remaining to be paid, less any amount which City may be authorized or directed by law to retain.

3.11 Claims; Government Code Claim Compliance.

3.11.1 Except as otherwise provided in this Contract, if any dispute shall arise between the City and Contractor regarding performance of the Work, or any alleged change in the Work, Contractor shall timely perform the disputed work and shall give written notice of a claim for additional compensation for the work to the City within three (3) days after commencement of the disputed work. Contractor’s failure to give written notice within the three (3)-day period constitutes an agreement by Contractor that it will receive no extra compensation for the disputed work and shall constitute a waiver of the right to further pursue the claim under the Contract or at law.

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

The intent of this Section is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code. This Section shall be construed to be consistent with all applicable law, including but not limited to these statutes.

3.11.1.2 Claims. For purposes of this Section, “Claim” means a separate demand by the Contractor for:
(A) An adjustment to the time for completion including, without limitation, for relief from damages or penalties for delay assessed by the City; (B) Payment by the City of money or damages arising from Work done by or on behalf of the Contractor pursuant to the Contract, payment for which is not otherwise expressly provided or to which the Contractor is not otherwise entitled; or (C) An amount the payment of which is disputed by the City.

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

3.11.1.3 Filing Claims. Claims governed by this Section may not be filed unless and until the Contractor completes any and all requirements of the Contract Documents pertaining to notices and requests for changes to the Contract Time or Contract Price, and Contractor’s request for a change has been denied in whole or in part. Claims governed by this Section must be filed no later than thirty (30) days after a request for change has been denied in whole or in part or after any other event giving rise to the Claim. The Claim shall be submitted in writing to the City and shall include on its first page the following words in 16-point capital font:
“THIS IS A CLAIM.” The Claim shall include all the information and documents necessary to substantiate the Claim, including but not limited to those identified below. Nothing in this Section is intended to extend the time limit or supersede notice requirements otherwise provided by Contract Documents. Failure to follow such contractual requirements shall bar any Claims or subsequent proceedings for compensation or payment thereon.

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3.11.1.4 Supporting Documentation. The Contractor shall submit all claims in the following format:
(A) Summary description of Claim including basis of
entitlement, merit and amount of time or money requested, with specific reference to the Contract Document provisions pursuant to which the Claim is made (B) List of documents relating to claim:
(1) Specifications
(2) Drawings
(3) Clarifications (Requests for Information)
(4) Schedules
(5) Other
(C) Chronology of events and correspondence
(D) Narrative analysis of claim merit
(E) Analysis of Claim cost, including calculations and
supporting documents
(F) Time impact analysis in CPM format

3.11.1.5 City’s Response. Upon receipt of a Claim pursuant to this Section, the City shall conduct a reasonable review of the Claim and, within a period not to exceed 45 days, shall provide the Contractor a written statement identifying what portion of the Claim is disputed and what portion is undisputed. Any payment due on an undisputed portion of the Claim will be processed and made within 60 days after the City issues its written statement. (A) If the City needs approval from its governing body to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the Claim, and the City’s governing body does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a Claim sent by registered mail or certified mail, return receipt requested, the City shall have up to three (3) days following the next duly publicly noticed meeting of the City’s governing body after the 45-day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputed portion.
(B) Within 30 days of receipt of a Claim, the City may
request in writing additional documentation supporting the Claim or relating to defenses or Claims the City may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of the City and the Contractor. The City’s written response to the Claim, as further documented, shall be submitted to the Contractor within 30 days (if the Claim is less than $50,000, within 15 days) after receipt of the further documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation, whichever is greater.

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

3.11.1.7 Mediation. Within 10 business days following the conclusion of the meet and confer conference, if the Claim or any portion of the Claim remains in dispute, the City shall provide the Contractor a written statement identifying the portion of the Claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the Claim shall be processed and made within 60 days after the City issues its written statement. Any disputed portion of the Claim, as identified by the Contractor in writing, shall be submitted to nonbinding mediation, with the City and the Contractor sharing the associated costs equally. The public entity and Contractor shall mutually agree to a mediator within 10 business days after the disputed portion of the Claim has been identified in writing, unless the parties agree to select a mediator at a later time.
(A) 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. (B) 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.
(C) Unless otherwise agreed to by the City and the
Contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced. (D) The mediation shall be held no earlier than the date the Contractor completes the Work or the date that the Contractor last performs Work, whichever is earlier. All unresolved Claims shall be considered jointly in a single mediation unless a new unrelated Claim arises after mediation is completed.

3.11.1.8 Procedures After Mediation. If following the mediation, the Claim or any portion remains in dispute, the Contractor must file a Claim pursuant to Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code prior to initiating litigation. For purposes of those provisions, the running of the period of time within which a Claim must be filed shall be tolled from the time the Contractor submits his or her written Claim pursuant to subdivision (a) until the time the Claim is denied, including any period of time utilized by the meet and confer conference.

3.11.1.9 Civil Actions. The following procedures are established for all civil actions filed to resolve Claims of $375,000 or less:
(A) Within 60 days, but no earlier than 30 days, following the filing or responsive pleadings, the court shall submit the matter to non-binding mediation unless waived by mutual stipulation of both parties or unless mediation was held prior to commencement of the action in accordance with Public Contract Code section 9204 and the terms of this Contract.

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The mediation process shall provide for the selection within 15 days by both parties of a disinterested third person as mediator, shall be commenced within 30 days of the submittal, and shall be concluded within 15 days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court. (B) If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The Civil Discovery Act of 1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration. In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced in construction law, and (B) any party appealing an arbitration award who does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, also pay the attorney’s fees on appeal of the other party.

3.11.1.10 Government Code Claim Procedures.
(A) This Section does not apply to tort claims and nothing in this Section is intended nor shall be construed to change the time periods for filing tort claims or actions specified by Chapter 1 (commending with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.5 of Title 1 of the Government Code. (B) In addition to any and all requirements of the Contract Documents pertaining to notices of and requests for adjustment to the Contract Time, Contract Price, or compensation or payment for additional work, disputed Work, construction claims and/or changed conditions, the Contractor must comply with the claim procedures set forth in Government Code Section 900, et seq. prior to filing any lawsuit against the City. (C) Such Government Code claims and any subsequent
lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to adjustment of the Contract Time or Contract Price for additional work, disputed Work, construction claims, and/or changed conditions have been followed by Contractor. If Contractor does not comply with the Government Code claim procedure or the prerequisite contractual requirements, Contractor may not file any action against the City. (D) A Government Code claim must be filed no earlier than the date the Work is completed or the date the Contractor last performs Work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved Claims known to Contractor or that should reasonably by known to Contractor excepting only new unrelated Claims that arise after the Government Code claim is submitted.

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

3.12 Loss and Damage. Except as may otherwise be limited by law, Contractor shall be responsible for all loss and damage which may arise out of the nature of the Work agreed to herein, or from the action of the elements, or from any unforeseen difficulties which may arise or be encountered in the prosecution of the Work until the same is fully completed and accepted by City. In the event of damage proximately caused by an Act of God, as defined by Section 7105 of the Public Contract Code, the City may terminate this Contract pursuant to the termination

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provisions provided herein; provided, however, that the City needs to provide Contractor with only one (1) day advanced written notice.

3.13 Indemnification.

3.13.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City and their respective officers, agents, employees, volunteers and representatives free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s services, the Project or this Contract, including without limitation the payment of all expert witness fees, attorneys’ fees and other related costs and expenses except such Claims caused by the sole or active negligence or willful misconduct of the City. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Contractor’s indemnity obligation shall not apply to liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense arising from the sole or active negligence or willful misconduct of the City or the City’s agents, servants, or independent contractors who are directly responsible to the City, or for defects in design furnished by those persons.

3.13.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense, and risk, any and all Claims covered by this section that may be brought or instituted against the City and their respective officers, agents, employees, volunteers and representatives. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against the City and their respective officers, agents, employees, volunteers, and representatives as part of any such claim, suit, action, or other proceeding. Contractor shall also reimburse the City for the cost of any settlement paid by the City and their respective officers, agents, employees, volunteers, and representatives as part of any such claim, suit, action, or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse the City and their respective officers, agents, employees, volunteers, and representatives, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of this Contract, and shall not be restricted to insurance proceeds, if any, received by the Contractor, the City and their respective officers, agents, employees, volunteers and representatives.

3.14 Insurance.

3.14.1 Minimum Requirements. Without limiting Contractor’s indemnification of the City, and prior to commencement of Work, Contractor shall obtain, provide and maintain at its own expense during the term of this Contract, policies of insurance of the type and amounts described below and in a form that is satisfactory to the City.

3.14.1.1 General Liability Insurance. Contractor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and property damage, and a $4,000,000 completed

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operations aggregate. The policy must include contractual liability that has not been amended.

Any endorsement restricting standard ISO “insured contract” language will not be accepted.

3.14.1.2 Automobile Liability Insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with Work to be performed under this Contract, including coverage for any owned, hired, nonowned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.

3.14.1.3 Umbrella or Excess Liability Insurance. Contractor may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Contractor may obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury, and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability, automobile liability and employer’s liability. Such policy or policies shall include the following terms and conditions:
(A) A drop-down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
(B) Pay on behalf of wording as opposed to reimbursement; (C) Concurrency of effective dates with primary policies; (D) Policies shall “follow form” to the underlying primary policies; and
(E) Insureds under primary policies shall also be insureds under the umbrella or excess policies.

3.14.1.4 Workers’ Compensation Insurance. Contractor may maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000) for Contractor’s employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, Contractor shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor’s employees. Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City and their respective officers, agents, employees, volunteers, and representatives.

3.14.1.5 Pollution Liability Insurance Environmental Impairment Liability Insurance shall be written on a Contractor’s Pollution Liability form or other form acceptable to the City providing coverage for liability arising out of sudden, accidental, and gradual pollution and remediation. The policy limit shall be no less than $1,000,000 dollars per claim and in the aggregate. All activities contemplated in this Contract shall be specifically scheduled on the policy as “covered operations”. The policy shall provide coverage for the hauling of waste from the Project site to the final disposal location, including non-owned disposal sites.

3.14.1.6 Builder’s Risk Insurance. RESERVED

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Contract No. ___________
Exhibit “A”
Revised 07-2023
BBK 72500.00001\32375220.1

3.14.2 Other Provisions or Requirements

3.14.2.1 Proof of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract.

City reserves the right to require complete, certified copies of all required insurance policies, at any time.

3.14.2.2 Duration of Coverage. Contractor shall procure and maintain for the duration of the 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 by Contractor, its agents, representatives, employees, or subcontractors. Contractor must maintain general liability and umbrella or excess liability insurance for as long as there is a statutory exposure to completed operations claims. The City and their respective officers, agents, employees, volunteers, and representatives shall continue as additional insureds under such policies.

3.14.2.3 Primary/Non-Contributing. Coverage provided by Contractor shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

3.14.2.4 Products/Completed Operations Coverage. Products/ completed operations coverage shall extend a minimum of three (3) years after project completion. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors, the Policy must include work performed “by or on behalf” of the insured. Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer. The City and their respective officers, agents, employees, volunteers, and representatives shall be included as additional insureds under the Products and Completed Operations coverage.

3.14.2.5 City’s Rights of Enforcement. In the event any policy of insurance required under this Contract does not comply with these requirements, or is canceled and not replaced, City has the right, but not the duty, to obtain the insurance it deems necessary, and any premium paid by City will be promptly reimbursed by Contractor, or City will withhold amounts sufficient to pay premium from Contractor payments. In the alternative, City may cancel this Contract.

3.14.2.6 Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.

3.14.2.7 Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against the City and

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Contract No. ___________
Exhibit “A”
Revised 07-2023
BBK 72500.00001\32375220.1
their respective officers, agents, employees, volunteers, and representatives, or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against the City and their respective officers, agents, employees, volunteers, and representatives and shall require similar written express waivers and insurance clauses from each of its subcontractors.

3.14.2.8 Enforcement of Contract Provisions (non-estoppel). Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.

3.14.2.9 Requirements Not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

3.14.2.10 Notice of Cancellation. Contractor agrees to oblige its insurance agent or broker and insurers to provide the City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.

3.14.2.11 Additional Insured Status. General liability, automobile liability, and if applicable, pollution liability policies shall provide or be endorsed to provide that the City and their respective officers, agents, employees, volunteers, and representatives shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies. Coverage shall be at least as broad as coverage provided by ISO’s Owners, Lessees, or Contractors Additional Insured Endorsement for the ongoing (i.e. ISO Form CG 20 10 07 04) and completed operations (i.e. ISO Form CG 20 37 07 04) of Contractor.

3.14.2.12 Prohibition of Undisclosed Coverage Limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing.

3.14.2.13 Separation of Insureds. A severability of interests provision must apply for all additional insureds ensuring that Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.

3.14.2.14 Pass Through Clause. Contractor agrees to ensure that its subconsultants, sub-contractors, and any other party involved with the Project who is brought onto or involved in the project by Contractor, provide the same minimum insurance coverage and endorsements required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Contractor agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the Project will be submitted to City for review.

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Contract No. ___________
Exhibit “A”
Revised 07-2023
BBK 72500.00001\32375220.1

3.14.2.15 City’s Right to Revise Requirements. The City or its Risk Manager reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Contractor ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Contractor, the City and Contractor may renegotiate Contractor’s compensation. If the City reduces the insurance requirements, the change shall go into effect immediately and require no advanced written notice.

3.14.2.16 Self-Insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City.

3.14.2.17 Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor’s performance under this Contract, and that involve or may involve coverage under any of the required liability policies.

3.14.2.18 Additional Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work.

3.15Bond Requirements.

3.15.1 Payment Bond. If required by law or otherwise specifically requested by City in Exhibit “C” and Exhibit “F” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Contract a Payment Bond in an amount required by the City and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the City.

3.15.2 Performance Bond. If specifically requested by City in Exhibit “C” and Exhibit “F” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Contract a Performance Bond in an amount required by the City and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the City.

3.15.3 Bond Provisions. Should, in the City’s sole opinion, any bond become insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the effected bond within (ten) 10 days of receiving notice from the City. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Contract until any replacement bonds required by this Section are accepted by the City. To the extent, if any, that the Total Contract Price is increased in accordance with the Contract, Contractor shall, upon request of the City, cause the amount of the bond to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the City. If Contractor fails to furnish any required bond, the City may terminate the Contract for cause.

3.15.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in California Code of Civil Procedure Section 995.120, shall be accepted. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.

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Contract No. ___________
Exhibit “A”
Revised 07-2023
BBK 72500.00001\32375220.1

3.16 Warranty. Contractor warrants all Work under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the Work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the Work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Work or non-conformance of the Work to the Contract, commence and prosecute with due diligence all Work necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the Work (or work of other contractors) damaged by its defective Work or which becomes damaged in the course of repairing or replacing defective Work. For any Work so corrected, Contractor’s obligation hereunder to correct defective Work shall be reinstated for an additional one-year period, commencing with the date of acceptance of such corrected Work.

Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the Work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming Work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense.

Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.

3.17 Employee/Labor Certifications.

3.17.1 Contractor’s Labor Certification. By its signature hereunder, Contractor certifies that he is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of that Code and agrees to comply with such provisions before commencing the performance of the Work. A certification form for this purpose, which is attached to this Contract as Exhibit “D” and incorporated herein by reference, shall be executed simultaneously with this Contract.

3.17.2 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination.

3.17.3 Verification of Employment Eligibility. By executing this Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors and sub-subcontractors to comply with the same.

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Palm Desert City CouncilDecember 14, 2023

Palm Desert City Council
December 14, 2023