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AMENDMENT NO. 01 TO THE 24B189
BETWEEN THE CITY PALM SPRINGS AND MANSFIELD
1. Parties and Date.
This Amendment No. 01 to the Contract Service Agreement is made and entered into as of this 12th day of November 2025, by and between the City of Palm Springs, a California charter city and municipal corporation (“City”), and Mansfield Power and Gas, LLC, a Georgia Limited Liability Company. City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties.”
2. Recitals.
2.1 Agreement. City and Contractor entered into an agreement titled “Natural Gas” dated September 12, 2024, (24B189) for the purpose of retaining the services of a licensed and qualified vendor to provide natural gas in an amount not to exceed $447,185.00 and a term of one (1) year, commencing on January 1, 2025, and continuing through December 31, 2025.
2.2 Amendment Purpose. City and Contractor now desire to amend the Agreement to extend the contract for an additional year term through December 31, 2026. and to add additional in the amount of $469,553.00 for a revised contract amount not to exceed $916,738.00, as identified in Attachment A.
2.3 Amendment Authority. This Amendment No. 01 is authorized pursuant to Section 3.3 Changes of the Agreement.
3. Terms.
3.1 Amendment. Section 3.1 Compensation of Contractor of the Agreement is hereby amended in its entirety to read as follows:
“3.1 Compensation of Contractor. Contractor shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit “A”. The total amount of Compensation shall not exceed $916,738.00”
3.2 Amendment. Exhibit “A” Scope of Services/Work including, Schedule of Fees and Schedule of Performance is hereby amended to include Attachment “A” 2026 Schedule of Fees attached hereto and incorporated herein by reference.
3.3 Amendment. Section 4.4 Term of the Agreement is hereby amended in its entirety to read as follows:
“4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, the Agreement shall continue in full force and effect for a period two years, commencing on January 1, 2025, and ending on December 31, 2026, unless extended by mutual written agreement of the Parties.”
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3.4 Continuing Effect of Agreement. Except as amended by this Amendment No. 01, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 01. From and after the date of this Amendment No. 01, whenever the term “Agreement” or “Contract” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 01.
3.5 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. 01.
3.6 Severability. If any portion of this Amendment No. 01 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.7 Counterparts. This Amendment No. 01 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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SIGNATURE PAGE FOR AMENDMENT NO. 01 TO THE
CONTRACT SERVICE AGREEMENT 24B189
BETWEEN THE CITY PALM SPRINGS AND MANSFIELD POWER AND GAS, LLC IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: ____________________________
Signature
Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______ Item No.
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________ City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager – up to/over $150,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
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ATTACHMENT “A”
2026 SCHEDULE OF FEES
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ATTACHMENT B
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CONTRACT ABSTRACT
Contract/Amendment
Name of Contract:
Company Name:
Company Contact:
Email:
Summary of Services:
Contract Price:
Contract Term:
Public Integrity/ Business
Disclosure Forms:
Contract Administration
Lead Department:
Contract Administrator/ Ext:
Contract Approvals
Council/City Manager Approval Date:
Agreement Number:
Amendment Number:
Contract Compliance
Exhibits:
Insurance:
Routed By:
Bonds:
Business License:
Sole Source Co-Op
Sole Source CoOp Agmt #:
Documents: CoOp Name:
CoOp Pricing:
Submitted on: By:
Contract Abstract Form Rev 8.16.23
Authorized Signers:
Name, Email
(Corporations require 2 signatures)
Natural Gas Mansfield Power and Gas, LLC Derek Betlejewski [email protected] provide the City with Natural Gas
$447,185 01/01/2025 - 12/31/2025 Yes Tammy Norman, [email protected] Maintenance & Facilities Tabitha Richards 24B189 N/A Yes Yes Yes Procurement N/A No IFB 24-25
N/A N/A N/A August 9, 2024 Brian Sotak-Rossman
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CONTRACT SERVICES AGREEMENT 24B189
NATURAL GAS
THIS AGREEMENT FOR CONTRACT SERVICES (“Agreement”) is made and entered into on September 12, 2024, by and between the City of Palm Springs, a California charter city and municipal corporation (“City”), and Mansfield Power and Gas, LLC, a Georgia Limited Liability Company, (“Contractor”). City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.
RECITALS
A. City requires the services of a licensed and qualified vendor to provide natural gas, (“Project”).
B. Contractor has submitted to City a Bid to provide natural gas, under the terms of this Agreement.
C. Based on its experience, education, training, and reputation, Contractor is qualified and desires to provide the necessary services to City for the Project.
D. City desires to retain the services of Contractor for the Project.
NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. CONTRACTOR SERVICES
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Contractor shall provide services to City as described in the Scope of Services/Work attached to this Agreement as Exhibit “A” and incorporated herein by reference (the “Services” or “Work”).
Exhibit "A" includes the agreed upon schedule of performance and the schedule of fees.
Contractor warrants that the Services shall be performed in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced, and well qualified members of the profession currently practicing under similar conditions. In the event of any inconsistency between the terms contained in the Scope of Services/Work and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern.
1.2 Compliance with Law. Contractor shall comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations when performing the Services. Contractor shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement.
1.3 Licenses and Permits. Contractor shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the Services required by this Agreement.
1.4 Familiarity with Work. By executing this Agreement, Contractor warrants that it has carefully considered how the Work should be performed and fully understands the facilities, difficulties, and restrictions attending performance of the Work under this Agreement.
2. TIME FOR COMPLETION
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The time for completion of the Services to be performed by Contractor is an essential condition of this Agreement. Contractor shall prosecute regularly and diligently the work of this Agreement according to the agreed upon schedule of performance set forth in Exhibit “A.” Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non-performing Party. Delays shall not entitle Contractor to any additional compensation regardless of the Party responsible for the delay.
3. COMPENSATION OF CONTRACTOR
3.1 Compensation of Contractor. Contractor shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit “A”. The total amount of Compensation shall not exceed $447,185.00.
3.2 Method of Payment. In any month in which Contractor wishes to receive payment, Contractor shall submit to City an invoice for Services rendered prior to the date of the invoice, no later than the first working day of such month, in the form approved by City’s finance director.
Payments shall be based on the hourly rates set forth in Exhibit “A” for authorized services performed. City shall pay Contractor for all expenses stated in the invoice that are approved by City and consistent with this Agreement, within thirty (30) days of receipt of Contractor’s invoice.
3.3 Changes. In the event any change or changes in the Services is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into:
A. To provide for revisions or modifications to documents, work product, or Work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession.
3.4 Appropriations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal year. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City.
4. PERFORMANCE SCHEDULE
4.1 Time of Essence. Time is of the essence in the performance of this Agreement.
4.2 Schedule of Performance. All Services rendered under this Agreement shall be performed under the agreed upon schedule of performance set forth in Exhibit “A.” Any time period extension must be approved in writing by the Contract Officer.
4.3 Force Majeure. The time for performance of Services to be rendered under this Agreement may be extended because of any delays due to a Force Majeure Event if Contractor notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Contractor’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Contractor notification, the Contract Officer shall investigate the facts and the extent of any necessary delay, and extend the time for performing the Services for the period of the enforced delay when and if, in the Contract Officer’s judgment, such delay is justified.
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The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. The Contractor will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement shall continue in full force and effect for a period of one year, commencing on January 1, 2025, and ending on December 31, 2025, unless extended by mutual written agreement of the Parties.
4.5 Termination Prior to Expiration of Term. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor. Where termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Contractor shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for termination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to correct Contractor's deficiencies and charge the cost thereof to Contractor, who shall be liable for the full cost of the City's corrective action.
Contractor may not terminate this Agreement except for cause, upon thirty (30) days written notice to City.
5. COORDINATION OF WORK
5.1 Representative of Contractor. The following principal of Contractor is designated as being the principal and representative of Contractor authorized to act and make all decisions in its behalf with respect to the specified Services: Derek Betlejewski, Sr. Business Development Executive. It is expressly understood that the experience, knowledge, education, capability, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the Services under this Agreement. The foregoing principal may not be changed by Contractor without prior written approval of the Contract Officer.
5.2 Contract Officer. The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). Contractor shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the Services. Contractor shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer.
5.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, education, capability, and reputation of Contractor, its principals, and employees, were a substantial inducement for City to enter into this Agreement. Contractor shall not contract with any other individual or entity to perform any Services required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provisions making them subject to all provisions stipulated in this Agreement including without limitation the insurance and indemnification requirements. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City.
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5.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Contractor, its agents, or employees, perform the Services required, except as otherwise specified. Contractor shall perform all required Services as an independent contractor of City and shall not be an employee of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role; however, City shall have the right to review Contractor’s work product, result, and advice. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Contractor shall pay all wages, salaries, and other amounts due personnel in connection with their performance under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance. Contractor shall not have any authority to bind City in any manner.
5.5 Personnel. Contractor agrees to assign the following individuals to perform the services in this Agreement. Contractor shall not alter the assignment of the following personnel without the prior written approval of the Contract Officer. Acting through the City Manager, the City shall have the unrestricted right to order the removal of any personnel assigned by Contractor by providing written notice to Contractor.
Name: Title:
Derek Betlejewski Sr. Business Development Executive
5.6 California Labor Code Requirements.
A. Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify, and hold the City, its officials, officers, employees, and agents free and harmless from any claims, liabilities, costs, penalties, or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
B. If the Services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements.
6. INSURANCE
Contractor shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Exhibit "B", incorporated herein by reference.
7. INDEMNIFICATION.
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7.1 Indemnification. To the fullest extent permitted by law, Contractor shall defend (at Contractor’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (Contractor’s employees included), for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct committed by Contractor, its officers, employees, representatives, and agents, that arise out of or relate to Contractor’s performance of Services or this Agreement.
This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Contractor’s indemnification obligation or other liability under this Agreement. Contractor’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final.
7.2 Design Professional Services Indemnification and Reimbursement. If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligation shall be limited to the extent which the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor in the performance of the Services or this Agreement, and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction, Contractor’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault.
8. RECORDS AND REPORTS
8.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer reports concerning the performance of the Services required by this Agreement, or as the Contract Officer shall require.
8.2 Records. Contractor shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Contractor shall keep such books and records as shall be necessary to properly perform the Services required by this Agreement and enable the Contract Officer to evaluate the performance of such Services.
The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records.
8.3 Ownership of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of this Agreement shall be the property of City. Contractor shall deliver all above-referenced documents to City upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials. Contractor may retain copies of such documents for Contractor's own use. Contractor shall have an unrestricted right to use the concepts embodied in such documents.
8.4 Release of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer.
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8.5 Audit and Inspection of Records. After receipt of reasonable notice and during the regular business hours of City, Contractor shall provide City, or other agents of City, such access to Contractor’s books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Contractor’s performance under this Agreement. Contractor shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder.
9. ENFORCEMENT OF AGREEMENT
9.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
9.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs.
9.3 Waiver. No delay or omission in the exercise of any right or remedy of a nondefaulting Party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of City shall be deemed to waive or render unnecessary City’s consent to or approval of any subsequent act of Contractor. Any waiver by either Party of any default must be in writing. No such waiver shall be a waiver of any other default concerning the same or any other provision of this Agreement.
9.4 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative. The exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
9.5 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement.
9.6 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non-judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert contractor fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding.
10. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
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or breach by City or for any amount which may become due to the Contractor or its successor, or for breach of any obligation of the terms of this Agreement.
10.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement, nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement.
10.3 Covenant Against Discrimination. In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting.
11. MISCELLANEOUS PROVISIONS
11.1 Notice. Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person shall be in writing and either served personally or sent by pre-paid, first-class mail to the address set forth below.
Notice shall be deemed communicated seventy-two (72) hours from the time of mailing if mailed as provided in this Section. Either Party may change its address by notifying the other Party of the change of address in writing.
To City: City of Palm Springs
Attention: City Manager/ City Clerk
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
To Contractor: Mansfield Power and Gas, LLC
Attention: Tammy Norman
1025 Airport Parkway SW
Gainesville, GA 30501
11.2 Integrated Agreement. This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement.
11.3 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement signed by all Parties.
11.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of Docusign Envelope ID: 7258F98C-9E4A-420C-894B-F00222D78437
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competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the Parties.
11.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assignees.
11.6 Third Party Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any entity or person not a party to this Agreement.
11.7 Recitals. The above-referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same.
11.8 Authority. The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement on behalf of Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Agreement.
11.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
11.10 Compliance with Economic Sanctions in Response to Russia's Actions in Ukraine. When funding for the services is provided, in whole or in part, by an agency controlled of the State of California, Consultant shall fully and adequately comply with California Executive Order N-6-22 (“Russian Sanctions Program”). As part of this compliance process, Consultant shall also certify compliance with the Russian Sanctions Program by completing the form located in Exhibit “C” (Russian Sanctions Certification), attached hereto and incorporated herein by reference. Consultant shall also require any subconsultants to comply with the Russian Sanctions Program and certify compliance pursuant to this Section. [SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO CONTRACT SERVICES AGREEMENT BY AND BETWEEN THE
CITY OF PALM SPRINGS AND MANSFIELD POWER AND GAS, LLC
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _____________________________ By: _____________________________ Signature Signature
(2nd signature required for Corporation)
Date: ___________________________ Date: ___________________________ CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______________ Item No. _______________
APPROVED AS TO FORM: ATTEST:
By: _____________________________ By: _____________________________ City Attorney City Clerk
APPROVED:
By: _____________________________ Date: ____________________________ City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
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09/12/2024 1G
9/12/2024
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EXHIBIT “A”
SCOPE OF SERVICES/WORK
Including,
Schedule of Fees
And
Schedule of Performance
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1.1 Background:
The City of Palm Springs, California operates one co-generation plant to produce electricity and to meet its thermal production needs. The City’s current contract for supply of natural gas expires on December 31, 2024. The City is now prepared to receive pricing and other relate information for our next contract period, commencing January 1, 2025, for the projected needs of the Municipal Cogeneration Plant.
1.2 Scope:
Historic Usage: Although the City’s natural gas supply requirements are traditionally very stable, there has been some fluctuation in gas usage in prior years due to conducting a series of tests or downtime for maintenance/repairs and engine replacement. The following table represents the actual amounts of natural gas in dekatherms that the City purchased during 2024 and 2023, for the Municipal Plant.
Actual Usage
2024
Core
13990757
Non-Core
12886051 Municipal Plant
Jan-24 124 7,036 7,160
Feb-24 251 3,445 3,696
Mar-24 731 6,299 7,030
Apr-24 1,024 6,992 8,016
May-24 714 7,865 8,579
Jun-24* 1,600 7,748 9,348
July-24* 1,730 7,955 9,685
Aug-24* 1,819 6,250 8,069
Sep-24* 1,234 6,528 7,762
Oct-24* 1,112 5,278 6,390
Nov-24* 884 4,709 5,593
Dec-24* 552 5,606 6,158
Plant Total (Dth) 87,486
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Actual / Estimated
Usage 2023
Core
13990757
Non-Core
12886051
Municipal Plant
Jan-23 1,309 4,584 5,893
Feb-23 389 2,815 3,204
Mar-23 1,662 3,439 5,101
Apr-23 1,577 2,407 3,984
May-23 1,610 7,218 8,828
Jun-23 1,944 7,420 9,364
July-23 1,721 8,441 10,162
Aug-23 2,117 6,682 8,799
Sep-23 2,104 4,283 6,387
Oct-23 2,007 3,101 5,108
Nov-23 1,546 653 2,199
Dec-23 454 5,996 6,450
Plant Total (Dth): 75,479
*Notes estimated usage
Projected Usage for next 12-month period (January 2025 thru December 2025): The projected amount of natural gas in dekatherms that the City will require during the next 12-month period is as follows: (These estimated amounts should be used for the basis of your quotation, however there may be maintenance downtime or other factors that could impact these projections)
Projected Usage
January - December
2025
Core
13990757
Non-Core
12886051
Municipal
Plant
Jan-25 540 5,500 6,040
Feb-25 400 3,600 4,000
Mar-25 900 5,200 6,100
Apr-25 1,000 5,800 6,800
May-25 1,200 7,450 8,650
Jun-25 1,600 7,750 9,350
July-25 1,750 8,000 9,750
Aug-25 1,890 6,250 8,140
Sep-25 1,350 6,550 7,900
Oct-25 1,120 5,300 6,420
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Nov-25 900 4,725 6,625
Dec-25 575 5,650 6,225
Plant Total (Dth) 85,000
1.3 Purchase of Natural Gas:
The City’s gas is purchased and billed monthly, not in one tranche. Application for payment shall be submitted once per month, the Contractor shall submit to the City an invoice for services provided during the previous month.
The contract pricing shall allow for the City to consume as little as 90% of the contracted amount of as much as 110% of the contracted amount without penalty. Should the usage exceed this 10% threshold the incremental bandwidth factor will be applied to the price.
1.4 Delivery Point: SoCal Citygate
The contract pricing is BTS tariff “neutral”, such that any BTS tariff per Dth shall be charged according to the filed tariff rates at the time of delivery.
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Docusign Envelope ID: 7258F98C-9E4A-420C-894B-F00222D78437
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EXHIBIT “B”
INSURANCE PROVISIONS
Including
Verification of Coverage,
Sufficiency of Insurers,
Errors and Omissions Coverage,
Minimum Scope of Insurance,
Deductibles and Self-Insured Retentions, and
Severability of Interests (Separation of Insureds)
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INSURANCE
1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Contractor’s performance under this Agreement.
Contractor shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of this Agreement.
Contractor shall also carry workers’ compensation insurance in accordance with California workers’ compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including any extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers.
2. Minimum Scope of Insurance. The minimum amount of insurance required under this Agreement shall be as follows:
1. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate;
2. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence;
3. Professional liability (errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate is:
_________ required
___x_____ is not required;
4. Workers’ Compensation insurance in the statutory amount as required by the State of California and Employer’s Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Invitation for Waiver of Workers’ Compensation Insurance Requirement form.
3. Primary Insurance. For any claims related to this Agreement, Contractor’s insurance coverage shall be primary with respect to the City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it. For Workers’ Compensation and Employer’s Liability Insurance only, the insurer shall waive all rights of subrogation and contribution it may have against City, its elected officials, officers, employees, agents, and volunteers.
4. Errors and Omissions Coverage. If Errors & Omissions Insurance is required, and if Contractor provides claims made professional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completion of Contractor’s services under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor’s services under this Agreement. Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy.
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5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City.
6. Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, effecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies.
Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate:
A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
B. "This insurance is primary and non-contributory over any insurance or selfinsurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
C. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out.
D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers.
In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies.
All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Contractor’s obligation to provide them.
7. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Certificates of Insurance must include evidence of the amount of any deductible or self-insured retention under the policy. Contractor guarantees payment of all deductibles and self-insured retentions.
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8. Severability of Interests (Separation of Insureds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer’s liability.
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EXHIBIT “C”
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CITY OF PALM SPRINGS
3200 E TAHQUITZ CANYON WAY, PALM
SPRINGS, CA 92262
(760) 322-8328
BUSINESS LICENSE CERTIFICATE
Fees Paid: $0.00
ISSUANCE OF THIS LICENSE DOES NOT ENTITLE THE
LICENSEE TO OPERATE OR MAINTAIN A BUSINESS
IN VIOLATION OF ANY OTHER LAW OR ORDINANCE.
THIS IS NOT AN ENDORSEMENT OF THE ACTIVITY
NOR OF THE APPLICANT'S QUALIFICATIONS.
Business Name: Mansfield Power and Gas, LLC
DBA:
Owner: Mansfield Power and Gas LLC
Mailing Address: 1025 AIRPORT PKWY SW
GAINESVILLE, GA 30501
License Number: OC-007174-2024
Expiration Date: 08/31/2025
PLEASE NOTE THAT IT IS YOUR RESPONSIBILITY TO
RENEW AND UPDATE THIS LICENSE ANNUALLY.
Business Location: 1025 AIRPORT PKWY SW,
GAINESVILLE, GA 30501
Business Description: Natural Gas supplier
TO BE POSTED IN A CONSPICUOUS PLACE
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INSR ADDL SUBR
LTR INSR WVD
DATE (MM/DD/YYYY)
PRODUCER CONTACT
NAME:
PHONE FAX
(A/C, No, Ext): (A/C, No):
E-MAIL
ADDRESS:
INSURER A :
INSURED INSURER B :
INSURER C :
INSURER D :
INSURER E :
INSURER F :
POLICY NUMBER
POLICY EFF POLICY EXP TYPE OF INSURANCE (MM/DD/YYYY) (MM/DD/YYYY) LIMITS
COMMERCIAL GENERAL LIABILITY
AUTOMOBILE LIABILITY
UMBRELLA LIAB
EXCESS LIAB
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
AUTHORIZED REPRESENTATIVE
INSURER(S) AFFORDING COVERAGE NAIC #
Y / N
N / A
(Mandatory in NH)
ANY PROPRIETOR/PARTNER/EXECUTIVE
OFFICER/MEMBER EXCLUDED?
EACH OCCURRENCE $
DAMAGE TO RENTED
CLAIMS-MADE OCCUR PREMISES (Ea occurrence) $
MED EXP (Any one person) $
PERSONAL & ADV INJURY $
GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $
PRODUCTS - COMP/OP AGG $
$
PROOTHER:
JECT LOC
COMBINED SINGLE LIMIT
(Ea accident) $
ANY AUTO BODILY INJURY (Per person) $
OWNED SCHEDULED BODILY INJURY (Per accident) $ AUTOS ONLY AUTOS
AUTOS ONLY
HIRED PROPERTY DAMAGE $
AUTOS ONLY (Per accident)
$
OCCUR EACH OCCURRENCE $
CLAIMS-MADE AGGREGATE $
DED RETENTION $ $
PER OTHSTATUTE ER
E.L. EACH ACCIDENT $
E.L. DISEASE - EA EMPLOYEE $
If yes, describe under
DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ POLICY
NON-OWNED
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer any rights to the certificate holder in lieu of such endorsement(s).
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
CERTIFICATE HOLDER CANCELLATION
© 1988-2015 ACORD CORPORATION. All rights reserved.
ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD
ACORDTM CERTIFICATE OF LIABILITY INSURANCE
Starr Indemnity & Liability Company
Zurich American Insurance Company
Allied World Assurance Company (U.S.) I
Harleysville Insurance Company New York
Gemini Insurance Co.
Crum & Forster Specialty Ins. Co.
1/30/2024
Marsh & McLennan Agency LLC
11330 Lakefield Drive
Suite 100
Johns Creek, GA 30097-1508
Jasleen Kaur
-
[email protected]
Mansfield Oil Company of
Gainesville, Inc.
1025 Airport Parkway, SW
Gainesville, GA 30501
38318
16535
19489
10674
10833
44520
A X
X
1000090701241 02/01/2024 02/01/2025 1,000,000
1,000,000
10,000
1,000,000
2,000,000
2,000,000
B
X
X MCS90
X X
X CA9948
BAP015277704 02/01/2024 02/01/2025 1,000,000
SEE BELOW 02/01/2024 02/01/2025
B
N
WC015277504
(FL,MA,WI)
WC015277604
02/01/2024 02/01/2025 X
1,000,000
1,000,000
1,000,000
C Pollution Liab.-
Claims Made
03059391 12/23/2020 03/01/2024 $10,000,000 Each Inc.
$10,000,000 Aggregate
INSURER G - AXIS Surplus Ins. Co. - NAIC #26620
INSURER H - RSUI Indemnity Co.. - NAIC #22314
INSURER I - Great American Assurance Co. NAIC #26344
(See Attached Descriptions)
City of Palm Springs, its
officials, employees and agents
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
1 of 2
#S13712164/M13711586
Client#: 644412 MANSFENERG
JJKXW
1 of 2
#S13712164/M13711586
Docusign Envelope ID: 7258F98C-9E4A-420C-894B-F00222D78437
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SAGITTA 25.3 (2016/03)
DESCRIPTIONS (Continued from Page 1)
EXCESS AUTO LIABILITY:
Insurer D - Policy #CRA0000052 - $3,000,000 xs Primary
Insurer E - Policy #GVE100229306 - $3,000,000 xs $3,000,000 Insurer F - Policy #SE0128243- $3,000,000 xs $6,000,000 Insurer G - Policy #P00100105226502 - $5,000,000 xs $9,000,000 EXCESS GENERAL LIABILITY:
Insurer A - Policy #1000095554241 - $15,000,000 xs Primary EXCESS EMPLOYERS LIABILITY:
Insurer H - Policy #NHA106463 - $5,000,000 xs Primary
Insurer I - Policy #EXC5202937- $5,000,000 xs $5,000,000 (GL) Additional Insured per form OG183 04/12 - Additional Insured - Where Required Under Contract or Agreement (Primary Coverage)
(GL) Additional Insured per form CG2037 0413 - Additional Insured Owners, Lessees or Contractors - Completed Operations
(GL) Additional Insured Primary & Non-Contributory per form CG2001 0413-Primary and Non-Contributory -Other Insurance Condition
(GL) Waiver of Subrogation per form CG2404 0509 - Waiver of Transfer of Rights of Recovery Against Others To Us
(Auto) Additional Insured per form CA2048 1013 Designated Insured For Covered Autos Liability Coverage (Auto) Waiver of Subrogation per form CA0444 1013 Waiver of Transfer of Rights of Recovery Against Others to Us (Waiver of Subrogation)
(WC) Waiver of Subrogation per form: WC000313 0484 - Waiver of Transfer of Rights of Recovery Against Others To Us
Excess Liability Follow Form per forms:
Policy #CRA0000052 - Form XLAP7RAR 0122 - Commercial Excess Liability Coverage Form Policy #GVE100229306 - Form GEMFFXLT 08/2020 - Excess Liability Policy Policy #SEO128243 - Form CFSICEX 101.0.302 8-22 - Excess Liability Coverage form Policy #P00100105226502 - Form AXIS 1010402 0417 - AXIS Excess Insurance Policy Policy #1000095554241 - Form XS-100 1008 - Excess Liability Policy Form Policy #NHA106463 - Form RSG31001 0507 - Commercial Excess Liability Policy Policy # EXC5202937 - Form GAI6524 0697 - Excess Liability Coverage Form Mansfield Power & Gas, LLC is included as a Named Insured on the above policies. 2 of 2
#S13712164/M13711586
Docusign Envelope ID: 7258F98C-9E4A-420C-894B-F00222D78437
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ATTACHMENT C
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CITY OF PALM SPRINGS – PUBLIC INTEGRITY DISCLOSURE
(INSTRUCTION FOR APPLICANTS)
(Revised 09 13 18)
CITY OF PALM SPRINGS
PUBLIC INTEGRITY DISCLOSURE
(INSTRUCTIONS FOR APPLICANTS)
Who Must File?
Applicants that are NOT a natural person or group of natural people that will be identified on the application, and seek a City approval determined by a vote of City officials. Examples include corporations, limited liability companies, trusts, etc. that seek a City Council approval, or an approval by one of the City’s board or commissions.
Why Must I File?
The City of Palm Springs Public Integrity Ordinance advances transparency in municipal government and assists public officials in avoiding conflicts of interest. The City’s Public Integrity Ordinance, codified in Chapter 2.60 of the municipal code, reflects the City’s interest in ensuring that companies (and other legal entities that are not natural people) doing business in the community are transparent and make disclosure as to their ownership and management, and further that those companies disclose the identity of any person, with an ownership interest worth two thousand dollars ($2,000) or more, who has a material financial relationship with any elected or appointed voting City official, or with the City Manager or City Attorney.
Note: A material financial relationship is a relationship between someone who is an owner/investor in the applicant entity and a voting official (or the City Manager or City Attorney), which relationship includes any of the following:
(1) the owner/investor and the official have done business together during the year prior to the application;
(2) the official has earned income from the owner/investor during the year prior to the filing of the application;
(3) the owner/investor has given the official gifts worth fifty dollars ($50) or more during the year prior to the filing of the application; or
(4) the official might reasonably be anticipated to gain or lose money or a thing of value, based upon the owner/investor’s interest in the applicant entity, in relation to the application’s outcome.
When Must I File?
You must file this form with the Office of the City Clerk at the same time when you file your application for a City approval determined by a vote of City officials, whether elected or appointed.
I – Page 237 of 1899
CITY OF PALM SPRINGS – PUBLIC INTEGRITY DISCLOSURE
(INSTRUCTION FOR APPLICANTS)
(Revised 09 13 18)
What Must I Disclose?
A. The names of all natural persons who are officers, directors, members, managers, trustees, and other fiduciaries serving trusts or other types of organizations (attorneys, accountants, etc.).
Note: (1) only trusts or other organizations that are not the fiduciaries, (2) if a second entity that is not a natural person serves the applicant entity (e.g., as a member of an applicant LLC), then all officers, directors, members, managers, trustees, etc., of the second entity must be disclosed).
B. The names of persons owning an interest with a value of two thousand dollars ($2,000) or more who have a material financial relationship with an elected or appointed City official who will vote on the applicant’s application, or with the City Manager or City Attorney.
PENALTIES
Falsification of information or failure to report information required to be reported may subject you to administrative action by the City.
I – Page 238 of 1899
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
1. Name of Entity
2. Address of Entity (Principal Place of Business)
3. Local or California Address (if different than #2)
4. State where Entity is Registered with Secretary of State If other than California, is the Entity also registered in California? Yes No
5. Type of Entity
Corporation Limited Liability Company Partnership Trust Other (please specify)
6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust, or other entity
________________________ Officer Director Member Manager [name] General Partner Limited Partner
Other ___________________________
______________________________ Officer Director Member Manager [name] General Partner Limited Partner
Other _______________________
______________________________ Officer Director Member Manager [name] General Partner Limited Partner
Other _________________________
Mansfield Power and Gas, LLC
1025 Airport Parkway SW, Gainesville, GA 30501
25844 Business Center Drive, Suite K, Redlands, CA 92374 Michael Mansfield Sr.
CEO
John Byrd
Tammy Norman
Georgia
I – Page 239 of 1899
7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity
EXAMPLE
JANE DOE
[name of owner/investor]
50%, ABC COMPANY, Inc.
[percentage of beneficial interest in entity
and name of entity]
A.
[name of owner/investor]
[percentage of beneficial interest in entity
and name of entity]
B.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
C.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
D.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
E.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
Signature of Disclosing Party, Printed Name, Title Date Michael Mansfield Sr. 95%, Mansfield Energy Corporation October 28th, 2025
Mansfield Family Trust 5%, Mansfield Family Trust
I – Page 240 of 1899
CITY COUNCIL STAFF REPORT
DATE: November 12, 2025 CONSENT CALENDAR
SUBJECT: APPROVE CONTRACT FOR CONSTRUCTION NO. 25S423 WITH
ACTION TARGET FOR DESIGN, EQUIPMENT, AND INSTALLATION OF
HVAC AND RANGE SYSTEMS FOR THE POLICE DEPARTMENT FIRING RANGE
FROM: Scott C. Stiles, City Manager
BY: David McAbee, Director of Public Works
SUMMARY:
This action will approve Contract for Construction No. 25S423 with Action Target in the amount of $1,455,155.38 for the design, equipment purchase, and installation of HVAC and range systems for the Police Department’s indoor firing range. The project addresses aging infrastructure and deferred maintenance issues that, if left unaddressed, could compromise the safety and functionality of a critical public safety training facility. The firing range is essential for officer training, certification, and maintaining compliance with state and federal law enforcement standards.
RECOMMENDATION:
1) Approve Contract for Construction No. 25S423 (Attachment A) with Action Target, Inc. for an amount not to exceed $1,455,155.38 for the design, equipment purchase, and installation of HVAC and range systems at the Police Department’s firing range; and
2) Authorize the City Manager, or designee, to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
According to the Public Integrity Disclosure form (Attachment B), Action Target, Inc. is registered to do business in the states of Utah and California.
BACKGROUND:
The Palm Springs Police Department operates an indoor firing range that serves as a cornerstone of officer training, ensuring compliance with California Peace Officer Standards and Training (POST) and maintaining readiness for field operations.
J – Page 241 of 1899
City Council Staff Report
November 12, 2025 -- Page 2
Approve Construction Agreement With Action Target Inc.
In addition to use by the City’s officers, the range is utilized by regional and interagency law enforcement partners, fostering collaboration and ensuring consistent training standards across jurisdictions.
The existing HVAC and range systems – now more than 20 years old – have deteriorated due to age and deferred maintenance. The facility currently experiences inadequate ventilation, substandard air filtration, and outdated target retrieval mechanisms.
Replacing these systems is necessary to preserve safety, meet environmental and occupational standards, and sustain long-term operational reliability.
STAFF ANALYSIS:
In accordance with City of Palm Springs Municipal Code Section 7.03.09, “Special Procurement Methods,” Section 2, “Sole Source Procurement”, the City may award a contract without competition when the procurement is made after conducting a good faith review of available sources and the Director has determined that there is only one source for the procurement. The Director shall conduct negotiations, as appropriate, as to price, delivery, and terms.
Action Target, Inc. is the sole provider of the Fixed Lateral Turning Target System and the integrated SmartRange AXIS™ Control System, both of which are protected by U.S.
Patent #11,585,642 and D886,846. These proprietary systems are not available through third-party vendors, dealers, or distributors, and have not been licensed for resale by other manufacturers.
The SmartRange AXIS™ system provides advanced functionality critical to dynamic law enforcement training and is uniquely suited to the Police Department’s operational needs.
No other vendor can legally supply or install these systems, making a sole source procurement justified and necessary to maintain compatibility, operational performance, and safety standards.
The project also includes essential HVAC and bullet trap upgrades to enhance air quality, energy efficiency, and regulatory compliance. Together, these improvements will extend the facility’s service life and minimize future maintenance disruptions.
Scope of Work Includes:
- Engineering and project-specific Design
- Procurement and installation of HVAC upgrades
- Installation of Fixed Lateral Turning Target System and SmartRange AXIS™ Control System
- System programming, testing, and commissioning
Additional work required to prepare the existing range, including remediation, demolition, fire sprinkler systems, electrical analysis, and lighting, will be performed by City contractors and is not included in Action Target’s scope of work.
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City Council Staff Report
November 12, 2025 -- Page 3
Approve Construction Agreement With Action Target Inc.
Operational and Interagency Impact:
- Ensures compliance with modern safety and air quality standards - Enables advanced, dynamic firearms training
- Minimizes range downtime and scheduling disruptions
- Preserves interagency access for regional law enforcement training partnerships.
Approval prior to December 31, 2025, is necessary to secure current pricing and avoid anticipated cost increases (up to 20% increase on equipment) after January 1, 2026. The firing range is essential for officer training, certification, and maintaining compliance with State and Federal Law Enforcement Standards. Staff recommend City Council approve Contract for Construction No. 25S423 with Action Target, Inc. in the amount of $1,455,155.38 for the design, equipment purchase, and installation of HVAC and range systems for the Police Department’s indoor firing range.
ENVIRONMENTAL ASSESSMENT:
This project is Categorically Exempt from the California Environmental Quality Act (CEQA) under Section 15301 (Existing Facilities) of the CEQA guidelines. The proposed improvements involve minor repairs and upgrades to existing public safety infrastructure, including HVAC, bullet traps, and range control systems, with no expansion of use or change in facility capacity.
In accordance with CEQA Guidelines Section 15301, the Class 1 exemption applies to the operation, repair, maintenance, or minor alteration of existing public structures, facilities, mechanical equipment, or topographical features where there is negligible or no expansion of existing or former use. The proposed work meets these criteria, as it consists solely of necessary maintenance and modernization of existing systems to ensure continued safe and efficient operation of the Police Department’s firing range, with no potential for significant environmental effects.
ALIGNMENT WITH STRATEGIC PLANNING:
Approval of this action supports the City Council strategic plan to provide quality, well maintained infrastructure and facilities.
FISCAL IMPACT:
Funding for this project is budgeted and available in the following accounts:
• Safety Augmentation Fund: 1215035-80000
• Public Works/Measure J Deferred Maintenance: 2603205-50119
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City Council Staff Report
November 12, 2025 -- Page 3
Approve Construction Agreement With Action Target Inc.
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City Council Staff Report
November 12, 2025 -- Page 4
Approve Construction Agreement With Action Target Inc.
REVIEWED BY:
Assistant Director of Public Works: Daniel Martinez
Director of Public Works: David McAbee
Procurement and Contracting Manager: Tabitha Richards
Assistant City Manager: Teresa Gallavan
City Manager: Scott Stiles
ATTACHMENTS:
A. Contract for Construction No. 25S423
B. Public Integrity Disclosure – Action Target
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ATTACHMENT A
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-i- 55575.18165\44349892.1
CITY OF PALM SPRINGS
CONTRACT DOCUMENTS FOR
FIRING RANGE AND ASSOCIATED HVAC
RENOVATIONS
CONTRACT NO. 25S423
THE CITY OF PALM SPRINGS
Public Works Department
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00 52 13 – CONTRACT FOR CONSTRUCTION
This Contract for Construction (“Contract”), No. 25S423 is made and entered into this ____ day of _______, 2025, by and between the City of Palm Springs, with its principal place of business at 3200 E. Tahquitz Canyon Way Palm Springs, California 92262, sometimes hereinafter called the “City” and Action Target, Inc. (“Contractor”), sometimes hereinafter called “Contractor.” WITNESSETH: That the parties hereto have mutually covenanted and agreed, and by these presents do covenant and agree with each other as follows:
ARTICLE 1. SCOPE OF WORK.
The Contractor shall perform all Work within the time stipulated in the Contract, and shall provide all labor, materials, equipment, tools, utility services, and transportation to complete all of the Work required in strict compliance with the Contract Documents as specified in Article 5, below, for the following Project:
FIRING RANGE AND ASSOCIATED HVAC RENOVATIONS
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 280 Working Days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work.
ARTICLE 3. CONTRACT PRICE.
The City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of One-Million Four Hundred Fifty-Five thousand One Hundred Fifty-Five Dollars and Thirty-Eight Cents ($1,455,155.38). 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 Contractor’s Bid.
ARTICLE 4. LIQUIDATED DAMAGES.
Contractor acknowledges that the City will sustain actual damages for each and every Day completion of the Project is delayed beyond the Contract Time. Because of the nature of the Project, it would be impracticable or extremely difficult to determine the City’s actual damages.
Accordingly, in accordance with Government Code section 53069.85, it is agreed that the Contractor will pay the City the sum of $500.00 for each and every calendar day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as liquidated damages and not as a penalty or forfeiture. This Article 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
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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
Contractor’s Bid
Non-Collusion Declaration Form
Iran Contracting Act Certification
Public Works Contractor DIR Registration Certification
Executive Order N-22 Certification
Fleet Compliance Certification
Performance Bond
Payment (Labor and Materials) Bond
Community Workforce Agreement
Contract for Construction
General Conditions
Special Conditions
Specifications
Construction Plans and Drawings
Applicable Local Agency Standards and Specifications, as last revised Reference Specifications
Approved and fully executed Change Orders
Permits
Any other documents contained in or incorporated into the Contract The Contractor shall complete the Work in strict accordance with all of the Contract Documents.
All of the Contract Documents are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. In the event of conflict, the various Contract Documents will be given effect in the order set forth in the General Conditions. This Contract shall supersede any prior agreement of the parties.
ARTICLE 6. PROVISIONS REQUIRED BY LAW AND CONTRACTOR COMPLIANCE.
Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of applicable federal, state and local laws, rules and regulations, including, but not limited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Work.
ARTICLE 7. INDEMNIFICATION.
Contractor shall provide indemnification and defense as set forth in the General Conditions.
ARTICLE 8. PREVAILING WAGES.
Contractor shall be required to pay the prevailing rate of wages in accordance with the Labor Code which such rates shall be made available at the City or may be obtained online at http://www.dir.ca.gov and which must be posted at the job site.
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ARTICLE 9. FALSE CLAIMS.
Contractor acknowledges that if a false claim is submitted to the City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that the False Claims Act, California Government Code sections 12650, et seq., provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include within their scope false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of the information. In the event the City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorneys’ fees. Contractor hereby acknowledges that the filing of a false claim may the Contractor to an administrative debarment proceeding wherein Contractor may be prevented from further bidding on public contracts for a period of up to five (5) years.
ARTICLE 10. CONFLICT OF INTEREST.
Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement, nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Contract and for one (1) year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Contract.
ARTICLE 11. COVENANT AGAINST DISCRIMINATION.
Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Contract, and in executing this Contract, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.05.02, including without limitation the provision of benefits, relating to non-discrimination in city contracting.
ARTICLE 12. COMMUNITY WORKFORCE AGREEMENT.
The Work is subject to the City’s Community Workforce Agreement dated August 31, 2021 (“CWA”), attached to this Contract as Exhibit “B”, and a copy of which is on file with the City, available upon request, and incorporated herein by reference as if fully set forth herein. Contractor and all subcontractors of Contractor of any tier shall at all times comply with the requirements of the CWA in the prosecution of the Work. Contractor has executed or agrees to execute and be bound by the terms of the CWA either directly or through the Letter of Assent (a form of which is attached to this Contract as Exhibit “B” and referred to herein as the “LOA”), and Contractor shall furnish evidence of compliance with the same to City prior to the commencement of any Work.
Contractor further agrees to require, or has already required, each of its subcontractors, of whatever tier, to agree in writing in the form of a LOA to be bound by each and every provision of
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the CWA prior to the commencement of Work or at the time of such subcontract, whichever occurs first.
A. Subcontractors
Contractor shall include, and shall require all of Contractor’s subcontractors of any tier to include, contractual provisions in all contracts they enter into for the performance of the Work, requiring each subcontractor, of every tier, who furnishes any labor for the performance of Work, to comply with the provisions of the CWA at no additional cost.
B. Condition of Payment
Compliance by Contractor and all of Contractor’s subcontractors of any tier with the requirements of the CWA shall be a condition of Contractor’s right to payment under this Agreement.
C. Reformation
Any requirement currently set forth in, or hereafter developed, adopted or implemented pursuant to the terms of the CWA, that is applicable to the Project, that is not set forth herein or that is by mistake incorrectly stated, shall be deemed to be inserted in this Agreement and shall be read and enforced as though it were included herein; and, if through mistake or otherwise any such requirement is not inserted or if inserted and requires correction, then upon request of either party this Agreement shall forthwith be amended to make such insertion or correction.
D. Conflicts
In the event of a conflict between the CWA and any other provisions of the Contract Documents, the CWA shall control.
E. Costs of Compliance
Contractor represents and warrants that it has included in its Contract Price all costs of compliance with the requirements of this Article 12.
F. Not a Limitation
The requirements of this Article 12 are in addition to, and not a limitation upon, the other applicable provisions of the Contract Documents.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND ACTION TARGET, INC.
IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on the day and year above written.
CONTRACTOR:
By Date
Signature
By Date
Signature
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL: Date: 11/12/2025 Item No.
APPROVED AS TO FORM: ATTEST:
By By
City Attorney City Clerk
APPROVED:
By Date
City Manager – up to/over $150,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
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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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EXHIBIT “A”
COMMUNITY WORKFORCE AGREEMENT
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COMMUNITY WORKFORCE AGREEMENT
BY AND BETWEEN
THE CITY OF PALM SPRINGS
AND
SAN BERNARDINOIRIVERSIDE COL INTIES
BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL- CIO
AND THE SIGNATORY CRAFT COUNCILS AND UNIONS
City of Palm Springs CWA
55575 18000'-. 33985938 2
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TABLE OF CONTENTS Page
ARTICLE 1 DEFINITIONS 3
ARTICLE 2 SCOPE OF THE AGREEMENT 5
ARTICLE 3 UNION RECOGNITION AND EMPLOYMENT 8
ARTICLE 4 UNION ACCESS AND STEWARDS 12
ARTICLE 5 WAGES AND BENEFITS 13
ARTICLE 6 HOURS OF WORK, OVERTIME, SHIFTS AND HOLIDAYS 14 ARTICLE 7 WORK STOPPAGES AND LOCKOUTS 16
ARTICLE 8 WORK ASSIGNMENTS AND JURISDICTIONAI. DISPUTES 20 ARTICLE 9 MANAGEMENT RIGHTS 21
ARTICLE 10 SETTLEMENT OF GRIEVANCES AND DISPUTES 23
ARTICLE 11 REGULATORY COMPLIANCE 25
ARTICLE 12 SAFETY AND PROTECTION OF PERSON AND PROPERTY 25 ARTICLE 13 TRAVEL AND SUBSISTI; NCI : 26
ARTICLE 14 APPRENTICES 26
ARTICLE 15 WORKING CONDITIONS 27
ARTICLE 16 PRE - JOB CONFERENCES 28
ARTICLE 17 LABOR/MANAGEMENT COOPERATION 28
ARTICLE 18 SAVINGS AND SEPARABILITY 29
ARTICLE 19 WAIVER 29
ARTICLE 20 AMENDMENTS 29
ARTICLE 21 DURATION OF THE AGREEMENT 30
ATTACHMENT A — LETTE: R OF ASSENT 33
ATTACHMENT B — ZIP CODES 34
ATTACHMENT C — CRAFT REQUEST FORM 39
ATTACHMENT D - LIST OF NEUTRAL ARBITRATORS 41
7 City of Palm Springs CWA
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CITY OF PALM SPRINGS
COMMUNITY WORKFORCE AGREEMENT
This Community Workforce Agreement (" Agreement") is entered into effective as of Au0m 3 [ , 2021, by and between the City of Palm Springs, a municipal corporation City"), the San Bernardino/ Riverside Counties Building and Construction Trades Council Trades Council"), and the signatory Craft Councils and Local Unions signing this Agreement collectively, the " Union" or " Unions"). This Agreement establishes the labor relations policies and procedures for the City, the Contractors awarded contracts for Project Work and for the crafts persons employed by the Contractors and represented by the Unions engaged in the Project Work as more fully described below. The City, Trades Council and Unions are hereinafter referred to herein, as the context may require, as " Party" or " Parties." It is understood by the Parties to this Agreement that for the duration of this Agreement, it shall be the policy of the City, to the extent permitted by law, for all Project Work ( as defined in Sections 1. 9 and 2. 2.) to be contracted exclusively to Contractors who agree to execute and be bound by the terms of this Agreement, directly or through the Letter of Assent ( a form of which is attached as " Attachment A"), and to require each of its subcontractors, of whatever tier, to become so bound. The City shall include, directly or by incorporation by reference, the requirements of this Agreement in the advertisement of and/ or specifications for each and every contract for Project Work to be awarded by the City.
It is further understood that the City shall actively administer and enforce the obligations of this Agreement, again to the extent permitted by law, to ensure that the benefits envisioned from it flow to all Parties, the Contractors and crafts persons working under it, and the residents of the City. The City shall therefore designate a " CWA Administrator," either from its own staff or an independent contractor, to serve as the City' s liaison for Contractors and other persons; monitor compliance with this Agreement; assist, as the authorized representative of the City, in developing and implementing the programs referenced herein, all of which are critical to fulfilling the intent and purposes of the Parties and this Agreement; and to otherwise implement and administer this Agreement.
ARTICLE I
DEFINITIONS
Section 1. 1 " Agreement" or " CWA" means this Community Workforce Agreement.
Section 1. 2 " Apprentice" means those employees indentured and participating in a Joint Labor/ Management Apprenticeship Program approved by the State of California, Department of Industrial Relations, and Division of Apprenticeship Standards.
Section 1. 3 " Construction Contract" or " Construction Contracts" means any contract entered into by the City, for the construction of Project Work as specified in Section 2. 2.
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Section 1. 4 " Contractor" means any individual firm, partnership or corporation, or combination thereof, including joint ventures, which is an independent business enterprise and which has entered into a Construction Contract with the City or any of its contractors or any of the City's or contractor's subcontractors of any tier, with respect to the construction of any part of a Project under contract terms and conditions approved by the City and which incorporate this Agreement.
Section 1. 5 " City" means the City of Palm Springs.
Section 1. 6 " Joint Labor; Management Apprenticeship Program" means a joint Union and Contractor administered apprenticeship program certified by the State of California, Department of Industrial Relations, and Division of Apprenticeship Standards.
Section 1. 7 " Letter of Assent" means the document that each Contractor ( of any tier) must sign and submit to the City before beginning any Project Work, which formally binds such Contractor( s) to adherence to all the forms, requirements and conditions of this Agreement in the form attached hereto as " Attachment A."
Section 1. 8 " CWA Administrator" means the City' s authorized representative who will be the liaison between the City, Contractors, and the Unions; responds to inquiries about the CWA; charged with monitoring compliance with the CWA, developing and implementing programs set forth in the CWA including but not limited to grievance procedures.
Section 1. 9 " Project", " Project Work" or " City Project" means the demolition and construction work to be performed on City property or within easements secured by the City consisting of the construction of public works, pursuant to a Construction Contract entered into by the City, that are estimated by the City to exceed One Million Dollars ($ 1, 000, 000), as determined by the City. Projects that are estimated by the City not to exceed $ 1, 000, 000 shall not be a Project, Project Work or City Project, and shall not be subject to this Agreement.
Section 1. 10 " Specialty Contracts" means a contract for Project Work with a specialty contractor which is either limited to a particular single trade or craft or limited to a singular scope of work ( i. e. installing a toilet.)
Section 1. 11 " Master Labor Agreements" means the local collective bargaining agreements of the signatory Unions having jurisdiction over the Project Work and which have signed this Agreement.
Section 1. 12 " Subscription Agreement" means the contract between a Contractor and a Union' s Labor/ Management Trust Fund( s) that allows the Contractor to make the appropriate fringe benefit contributions in accordance with the terms of the Master Labor Agreements.
Section 1. 13 " Willful or Knowing Breach" means a default of a material term or covenant of this Agreement, which is done either willfully or knowingly, and continues following written notice by the non -defaulting party and a reasonable opportunity to cure. For purposes of this definition, " willfully" means a purpose or willingness to commit the act, or make the omission 4 City of Palm Springs CWA
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referred to, and " knowingly" means a knowledge that the facts exist that bring the act or omission within the provisions of this Agreement.
Section 1. 14 The use of masculine or feminine gender or titles in this Agreement should be construed as including both genders and not as gender limitations unless the Agreement clearly requires a different construction. Further, the use of Article titles and/ or Section headings are for information only, and carry no legal significance.
ARTICLE 2
SCOPE OF THE AGREEMENT
Section 2. 1 General This Agreement shall apply to all of the City' s Project Work, as defined in Section 1. 9, performed by those Contractor(s) of whatever tier that have contracts awarded for such work, for the development of the City' s facilities which, jointly, constitute the Project, and have been designated by the City for construction or rehabilitation.
Section 2. 2 Specific Project Work covered by this Agreement is defined and limited to:
2. 2. 1 All construction and major rehabilitation work pursuant to " prime multi -trade construction contracts" that exceed one million dollars ($ 1, 000, 000) and all subcontracts flowing from these prime multi -trade contracts; and
2. 2. 2 All prime " Specialty Contracts," as defined in Section 1. 10 that exceed one million dollars ($ 1, 000, 000) and all subcontracts flowing from these specialty contracts; and
2. 2. 3 The City may, at any time and at its sole discretion, determine to build additional buildings, facilities, and other projects under this Agreement which is not otherwise covered as Project Work.
2. 2.4 This Agreement is not intended to, and shall not apply to any work performed at any time prior to the effective date, or after the expiration or termination of this Agreement, except as otherwise provided herein. This Agreement shall in no way limit the City' s right to terminate, modify or rescind any construction contract and;`or any related subcontract or agreement. Should the City remove or terminate any contract or agreement for construction that does not fail within the scope of this Agreement and thereafter authorize that work be commenced on any contract for such construction, the contract for construction shall be performed under the terms of this Agreement.
Section 2. 3 Bundling of Contracts
2. 3. 1 The City, in its sole discretion, may seek to group ( or " bundle") for bidding, contracts not meeting the threshold of Section 2. 2 above. ( Small contracts for like types of work, scheduled to be undertaken at the same facility or on the same project site, and within the same timeframe, will be considered for such bundling, consistent with economies of scale, and the purposes of this Agreement); and
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2. 3. 2 Project Work will not be intentionally split, divided or otherwise separated for contract award purposes to avoid application of this Agreement.
Section 2. 4 Applicability This Agreement shalt not apply to any work of any Contractor other than that on Project Work specifically covered by this Agreement.
Section 2. 5 Exclusions Items specifically excluded from the scope of this Agreement includes the following:
2. 5. 1 Work of non -manual employees, including but not limited to: superintendents; teachers; supervisors ( except those covered by Master Labor Agreements above the level of general foreman); staff engineers; time keepers; mail carriers; clerks; office workers; messengers; guards; safety personnel; emergency medical and first aid technicians; and other professional, engineering, executive, administrative, supervisory and management employees;
2. 5. 2 Equipment and machinery owned or controlled and operated by the City;
2. 5. 3 All off -site manufacture and handling of materials, equipment or machinery; provided, however, that lay down or storage areas for equipment or material and manufacturing prefabrication) sites, dedicated solely to the Project, and the movement of materials or goods between such locations and a Project site are within the scope of this Agreement;
2. 5. 4 All work performed by City employees, the CWA Administrator, design teams including, but not limited to architects engineers and master planners), or any other consultants for the City (including, but not limited to, project managers and construction managers and their employees where not engaged in Project Work) and their sub -consultants, and other employees of professional service organizations, not performing manual labor within the scope of this Agreement; provided, however, that it is understood and agreed that Building/ Construction Inspector and Field Soils and Materials Testers ( Inspectors) are a covered craft under the Agreement. This inclusion applies to the scope of work defined in the State of California Wage Determination for said Craft. This shall also specifically include such work where it is referred to by utilization of such terms as " quality control" or " quality assurance." Every Inspector performing under the wage classification of Building/ Construction Inspector and Field Soils and Material Testers under a professional services agreement or a construction contract shall be bound to all applicable requirements of the Community Workforce Agreement ( CWA). Covered Work as defined by this Agreement shall be performed pursuant to the terms and conditions of this Agreement regardless of the manner in which the work was awarded;
2. 5. 5 Any work performed near, or leading to a site of work covered by this Agreement and undertaken by state, county or other governmental bodies, or their Contractors; or by public utilities, or their Contractors; and/ or by adjacent third party landowners; andior by the City or its Contractors ( for work which is not within the scope of this Agreement);
2. 5. 6 Off -site maintenance of leased equipment and on -site supervision of such work; City of Palm Springs CWA
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2. 5. 7 Work by employees of a manufacturer or vendor supervising the work of Craft employees under this Agreement, necessary to maintain such manufacturers or vendor' s warranties or guaranty;
2. 5. 8 Non -construction support services contracted by the City, City consultants, the CWA Administrator, or Contractor in connection with a Project;
2. 5. 9 Laboratory work for testing.
2. 5. 10 Covera
Exception This Agreement shall not apply if the City receives funding or assistance from any Federal, State, local or other public entity for the Construction Contract if a requirement, condition or other term of receiving that funding or assistance, at the time of the awarding of the contract, is that the City not require bidders, contractors, or other persons or entities to enter into an agreement with one or more labor organi7.ations. The City agrees that it will make reasonable efforts to establish the enforcement of this Agreement with any governmental agency or granting authority.
Section 2. 6 Awarding of Contracts for Project Work
2.6. 1 The City and/ or the Contractors, as appropriate, have the absolute right to award contracts or subcontracts on Project Work to any Contractor notwithstanding the existence or non- existence of any agreements between such Contractor and any Union parties, provided only that such Contractor is ready, willing, and able to execute and comply with this Agreement should such Contractor be awarded work covered by this Agreement.
2. 6. 2 It is agreed that all Contractors of whatever tier, who have been awarded Project Work contracts, shall be required to accept and be bound to the terms and conditions of this Agreement, and shall evidence their acceptance by the execution of the Letter of Assent set forth in " Attachment A" hereto, prior to the commencement of any Project Work. At the time that any Contractor enters into a subcontract with any subcontractor of any tier providing for the performance of the construction contract, the Contractor shall provide a copy of this Agreement to said subcontractor and shall require the subcontractor, as a part of accepting the award of a construction subcontract, to agree in writing in the form of a Letter of Assent to be bound by each and every provision of this Agreement prior to the commencement of work on the Project.
No Contractor or subcontractor shall commence Project Work without having first provided a copy of the Letter of Assent as executed by it to the CWA Administrator and to the Trades Council before the commencement of Project Work.
2. 6. 3 Under all circumstances, the City shall retain the absolute right to select the lowest responsive and responsible bidder for the award of contracts on all projects.
Section 2. 7 Master Labor Agreements
2. 7. 1 The provisions of this Agreement, including the Master Labor Agreements as such may be changed from time -to -time and which also are incorporated herein by reference, City of Palm Springs CWA
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shall apply to Project Work. This Agreement is not intended to supersede such Master Labor Agreements between any of the Employers performing construction work on the Project and a Union signatory thereto except to the extent the provisions of this Agreement are inconsistent with such Master Labor Agreements, in which event the provisions of this Agreement shall apply. However, such does not apply to work performed under the National Cooling Tower Agreement, the National Stack Agreement, the National Transit Division Agreement ( NTD), work within the jurisdiction of the International Union of Elevator Constructors, and all instrument calibration and loop checking work performed under the terms of the UA.'IBEW Joint National Agreement for Instrument and Control Systems Technicians except that Article 9 dealing with Strikes, Work Stoppages and Lock -Outs, Work Assignments and Jurisdictional Disputes, and Settlement of Grievances and Disputes shall apply to such work. Where a subject is covered by the provisions of a Master Labor Agreement and not in conflict with the provisions of this Agreement, the provisions of the Master Labor Agreement shall apply. It is specifically agreed that no later agreement shall be deemed to have precedence over this Agreement unless signed by all parties signatory hereto who are then currently employed or represented at the Project. Any dispute as to the applicable source between this Agreement and any Master Labor Agreements for determining the wages, hours of working conditions of employees on this Project shall be resolved under the procedures established in Article 10.
2. 7. 2 It is understood that this Agreement, together with the referenced Master Labor Agreements, constitutes a self-contained, stand- alone agreement and by virtue of having become bound to this Agreement, the Contractor will not be obligated to sign any other local, area or national collective bargaining agreement as a condition of performing work within the scope of this Agreement ( provided, however, that the Contractor may be required to sign a uniformly applied, non- discriminatory Subscription Agreement at the request of the trustees or administrator of a trust fund established pursuant to Section 302 of the Labor Management Relations Act, and to which such Contractor is bound to make contributions under this Agreement, provided that such Subscription Agreement does not purport to bind the Contractor beyond the terms and conditions of this Agreement and:'or expand its obligation to make contributions pursuant thereto). It shall be the responsibility of the prime Contractor to have each of its subcontractors sign the appropriate Subscription Agreement, with the appropriate Craft Union prior to the subcontractor beginning work on Project Work.
Section 2. 8 Binding Signatories Only This Agreement shall only be binding on the signatory Parties hereto, and shall not apply to the parents, affiliates, subsidiaries, or other ventures of any such Party not performing Project Work.
Section 2. 9 Other City Work Nothing contained herein shall be interpreted to prohibit, restrict, or interfere with the performance of any other operation, work or function not covered by this Agreement, which may be performed by City employees or contracted for by the City for its own account, on its property or in and around a Project site.
Section 2. 10 Separate Liabilitx It is understood that the liability of the Contractor(s) and the liability of the separate Unions under this Agreement shall be several and not joint. The Unions agree that this Agreement does not have the effect of creating any joint employment status between or among the City or CWA Administrator andior any Contractor. 8 City of Palm Springs CWA
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Section 2. 1 I Completed Project Work As areas of Project Work are accepted by the City, this Agreement shall have no further force or effect on such items or areas except where the Contractor is directed by the City or its representatives to engage in repairs, modification, checkout and/ or warranties functions required by its contract( s) with the City under the original contract.
ARTICLE 3
UNION RECOGNITION AND EMPLOYMENT
Section 3. 1 Recognition The Contractor recognizes the Trades Council and the Unions as the sole and exclusive bargaining representative for the employees engaged in Project Work.
Contractors further recognize that the Unions shall be the primary source of all craft labor employed on the Projects. In the event that a Contractor has its own core workforce, said Contractor shall follow the procedures outlined below.
Section 3. 2 Contractor Selection of Employees The Contractor shall have the right to determine the competency of all employees, the number of employees required, the duties of such employees within their craft jurisdiction, and shall have the sole responsibility for selecting employees to be laid off, consistent with Section 3. 3 and Section 4. 3, below. The Contractor shall also have the right to reject any applicant referred by a Union for any reason, subject to any reporting pay required by Section 6. 6; provided, however, that such right is exercised in good faith and not for the purpose of avoiding the Contractor' s commitment to employ qualified workers through the procedures endorsed in this Agreement.
Section 3. 3 Referral Procedures
3. 3. 1 For signatory Unions now having a job referral system contained in a Master Labor Agreement, the Contractor agrees to comply with such system and it shall be used exclusively by such Contractor, except as modified by this Agreement. Such job referral system will be operated in a nondiscriminatory manner and in full compliance with federal, state, and local laws and regulations which require equal employment opportunities and nondiscrimination. All of the foregoing hiring procedures, including related practices affecting apprenticeship, shall be operated so as to consider the goals ofthe City to encourage employment of City residents and utilization of small local businesses on the Project, and to facilitate the ability of all Contractors to meet their employment needs.
3. 3. 2 The local Unions will exert their best efforts to recruit and refer sufficient numbers of skilled craft workers to fulfill the labor requirements of the Contractor, including specific employment obligations to which the Contractor may be legally and/ or contractually obligated; and to refer apprentices as requested to develop a larger, skilled workforce. The Unions will work with their affiliated regional and national unions, and jointly with the CWA Administrator and others designated by the City, to identify and refer competent craft persons as needed for Project Work, and to identify and hire individuals, particularly residents of the City, for entrance into joint labor/ management apprenticeship programs, or to participate in other identified programs and procedures to assist individuals in qualifying and becoming eligible for 9 City of Palm Springs CWA
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such apprenticeship programs, all maintained to increase the available supply of skilled craft personnel for Project Work and future construction of maintenance work to be undertaken by the City.
3. 3. 3 The Union shall not knowingly refer an employee currently employed by a Contractor on a covered Project to any other Contractor.
Section 3. 4 Non -Discrimination in Referral Employment, and ContraqtLng The Unions and Contractors agree that they will not discriminate against any employee or applicant for employment in hiring and dispatching on the basis of race, color, religion, sex, gender, national origin, age, membership in a labor organization, sexual orientation, political affiliation, marital status, disability or other protected class under Title 7, Section 7. 09. 040 of the Municipal Code of the City of Palm Springs. Further, it is recognized that the City has certain policies, programs, and goals for the utilization of local small business enterprises. The Parties shall jointly endeavor to assure that these commitments are fully met, and that any provisions of this Agreement which may appear to interfere with local small business enterprises successfully bidding for work within the scope of this Agreement shall be carefully reviewed, and adjustments made as may be appropriate and agreed upon among the Parties, to ensure full compliance with the spirit and letter of the City' s policies and commitment to its goals for the significant utilization of local small businesses as direct Contractors or suppliers for Project Work.
Section 3. 5 Emgloyment_ of City Residents
3. 5. 1 The Unions and Contractors agree that, to the extent allowed by law, and as long as they possess the requisite skills and qualifications, the Unions will exert their best efforts to refer and/ or recruit sufficient numbers of skilled craft " Local Residents" as defined herein, to fulfill the requirements of the Employers. In recognition of the fact that the City and the communities surrounding Project Work will be impacted by the construction of the Project Work, the parties agree to support the hiring of workers from the residents of these surrounding areas for Project Work. Towards that end, the Unions shall exert their best efforts to encourage and provide referrals and utilization of qualified workers residing in those U. S. Postal Service zip codes which overlap all of the City of Palm Springs, as set forth in " Attachment B" attached hereto, with Tier IA ( Palm Springs residents) who will always be the first contacted for work under this CWA. If the Unions cannot provide the Contractors in the attainment of a sufficient number of Local Residents from within the first tier zip codes, the Unions shall exert their best efforts to then recruit and identify for referral Local Residents residing within Riverside County.
3. 5. 2 A goal of 30% of the total work hours shall be performed from workers residing within the areas described in Section 3. 5. 1. Per Article 3. 6, referral of local residents shall be facilitated through the requirement to utilize the " Craft Employee Request Form" ( Attachment C). Accountability and monitoring requirements shall be discussed and addressed as set forth in Article 17. 2.
3. 5. 3 The Unions agree to support the operation of pre -apprentice referral programs in the City. Further, the Unions agree to place on their referral roles or in their apprentice training programs, as appropriate and needed, qualified persons sent to them by designated City 10 City of Palm Springs CWA
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organizations or other organizations working with the City to increase construction industry work opportunities for City residents.
3. 5. 4 The Parties to this CBA support the development of increased numbers of skilled Construction Workers from among residents of the City of Palm Springs. Towards that end, the Parties agree to cooperatively seek to establish work opportunities for local residents and address Training and Employment needs in the Community. The goal is for the Career placement of disadvantaged and at -risk youth, Low Income and Under/ unemployed residents, Women, Minorities, LGTBQ+ members of the community, and Veterans. The Unions commit to:
a) Coordinate and participate in City based Career and Apprenticeship fairs and Events, including events such as Village Fest, the annual Pride festival, and the ONEPS Picnic.
Without limiting the nature of the foregoing, the Unions commit to hold at least one ( 1) annual career fair in the City of Palm Springs, to provide an opportunity for Palm Springs residents to learn about careers in the building trades;
b) Provide Industry Speakers for City Programs and Outreach Events; c) Support Local Events and Programs designed to recruit and develop adequate numbers of competent workers in the Construction Industry; d) Work cooperatively with the City and Community groups to provide pre - apprenticeship training utilizing Building Trades and Union Apprenticeship readiness Programs. e) The Trades Council and Unions shall seek partnerships with the Riverside County Workforce Development Board, Palm Springs Unified School District, Desert Community College District, and non- profit community groups to provide construction career opportunity awareness and outreach throughout the City and greater Coachella Valley. These partnerships will include Apprenticeship Readiness Programs, Career awareness through Job Fairs, and Pre - Apprenticeship Training. Outreach shall include a focus on demographic groups that have been traditionally underrepresented in the Construction Industry, including, but not limited to, Women, Minorities, economically disadvantaged, LGBTQ+, and formerly incarcerated individuals.
Trades Council, on behalf of the Unions shall, commencing on the first anniversary of the effective date of this CWA, submit to the City an annual written report, which provides the number of skilled Construction Workers, including any legally permissible demographics.
Section 3. 6 Requirements on Contractors to facilitate the dispatch of Local Residents, all Contractors will be required to utilize the Craft Employee Request Form whenever they are requesting the referral of any employee from a Union referral list for any Covered Project, a sample of which is attached as " Attachment C." When Local Residents are requested by the Employers, the Unions will refer such workers regardless of their place in the Unions' hiring halls' list and normal referral procedures.
Section 3. 7 Helmets to Hardhats
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3. 7. 1 The Contractors and the Unions recognize a desire to facilitate the entry into the building and construction trades of Veterans who are interested in careers in the building and construction industry. The Contractors and Unions agree to utilize the services of non- profit Veterans support organizations, including but not limited to, the Center for Military Recruitment, Assessment and Veterans Employment ( hereinafter " Center") and the Center' s " Helmets to Hardhats" program to serve as a resource for preliminary orientation, assessment of construction aptitude, referral to apprenticeship programs or hiring halls, counseling and mentoring, support network, employment opportunities and other needs as identified by the Parties. For purposes of this Agreement the term " Eligible Veteran" shall have the same meaning as the term " veteran" as defined under Title 5, Section 2108( 1) of the United States Code as the same may be amended or re -codified from time to time. It shall be the responsibility of each qualified applicant to provide the Unions with proof of his/ her status as an Eligible Veteran.
3. 7. 2 The Unions and Contractors agree to coordinate with non- profit Veteran organizations, including, the Center to create and maintain an integrated database of veterans interested in working on this Project Work and of apprenticeship and employment opportunities for working on Project Work. To the extent permitted by law, the Unions will give credit to such Veterans for bona fide, provable past experience.
Section 3. 8 Core Employees
3. 8. 1 Contractors not currently signatory to a Master Labor Agreement may employ, as needed, first, a member of his core workforce, then an employee through a referral from the appropriate Union hiring hall, then a second core employee, then a second employee through the referral system, and so on until a maximum of five ( 5) core employees are employed, thereafter, all additional employees in the affected trade or craft shall be requisitioned from the craft hiring hall in accordance with Section 3. 3. In the laying off of employees, the number of core employees shall not exceed one- half plus one of the workforce for an employer with 10 or fewer employees, assuming the remaining employees are qualified to undertake the work available. As part of this process, and in order to facilitate the contract administration procedures, as well as appropriate fringe benefit fund coverage, all Contractors shall require their core employees and any other persons employed other than through the referral process, to register with the appropriate Union hiring hall, if any, prior to their first day of employment at a project site.
3. 8. 2 The core work force is comprised of those employees whose names appeared on the Contractor' s active payroll for sixty (60) of the one hundred ( 100) working days immediately before award of Project Work to the Contractor; who possess any license required by state or federal law for the Project Work to be performed; who have the ability to safely perform the basic functions of the applicable trade and who have been residing within Riverside County for the one hundred ( 100) working days immediately prior to the award of Project Work to the Contractor.
3. 8. 3 Prior to each Contractor performing any work on the Project, each Contractor shall provide a list of his core employees to the CWA Administrator and the Trades Council.
Failure to do so will prohibit the Contractor from using any core employees. Upon request by 12 City of Palm Springs CWA
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any Party to this Agreement, the Contractor hiring any core employee shall provide satisfactory proof ( i. e., payroll records, quarterly tax records, driver' s license, voter registration, postal address and such governmental documentation) evidencing the core employee' s qualification as a core employee to the CWA Administrator and the Trades Council.
Section 3. 9 Time for Referral If any Union' s registration and referral system does not fulfill the requirements for specific classifications requested by any Contractor within forty- eight 48) hours ( excluding Saturdays, Sundays and holidays), that Contractor may use employment sources other than the Union registration and referral services, and may employ applicants meeting such classification from any other available source. The Contractors shall inform the Union of any applicants hired from other sources and such applicants shall register with the appropriate hiring hall, if any, before commencing work.
Section 3. 10 Lack of Referral Procedure If a signatory Union does not have a job referral system as set forth in Section 3. 3 above, the Contractors shall give the Union equal opportunity to refer applicants. Contractors shall notify the Union of employees so hired, as set forth in Section 3. 5.
Section 3. 11 Union Security Employees are not required to become or remain union members or pay dues or fees as a condition of performing Covered Work under this Agreement.
Employers shall make and transmit all deductions for union dues, fees, and assessments that have been authorized by employees in writing in accordance with the applicable Master Agreement.
Nothing in this Section 3. 11 is intended to supersede the requirements of applicable Master Agreements as to those Employers otherwise signatory to such Master Agreements and as to the employees of those Employers who are performing Covered Work.
Section 3. 12 Individual Seniority Except as provided in Section 4. 3, individual seniority shall not be recognized or applied to employees working on Project Work; provided, however, that group and/ or classification seniority in a Union' s Master Labor Agreement as of the effective date of this Agreement shall be recognized for purposes of layoffs.
Section 3. 13 Foremen The selection and number of craft foreman andlor general foreman shall be the responsibility of the Contractor. All foremen shall take orders exclusively from the designated Contractor representatives. Craft foreman shall be designated as working foreman at the request of the Contractors.
Section 3. 14 Out of State Workers In determining compliance with the targeted hiring goals of Section 3. 5 above, hours of Project Work performed by residents of states other than California will be excluded from the calculation.
ARTICLE 4
UNION ACCESS AND STEWARDS
Section 4. 1 Access to Project Sites Authorized representatives of the Union shall have access to Project Work, provided that they do not interfere with the work of employees and 13 City of Palm Springs CWA
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further provided that such representatives shall notify the person charged with on -site project supervision and fully comply with posted visitor, security and safety rules.
Section 4. 2 Stewards
4. 2. 1 Each signatory Union shall have the right to dispatch a working journeyperson as a steward for each shift, and shall notify the Contractor in writing of the identity of the designated steward or stewards prior to the assumption O[ such person' s duties as steward. Such designated steward or stewards shall not exercise any supervisory functions. There will be no non -working stewards. Stewards will receive the regular rate of pay for their respective crafts.
4. 2. 2 In addition to his/ her work as an employee, the steward should have the right to receive, but not to solicit, complaints or grievances and to discuss and assist in the adjustment of the same with the employee' s appropriate supervisor. Each steward should be concerned only with the employees of the steward' s Contractor and, if applicable, subcontractor( s), and not with the employees of any other Contractor. A Contractor will not discriminate against the steward in the proper performance of his:'her Union duties.
4.2. 3 When a Contractor has multiple, non- contiguous work locations at one site, the Contractor may request and the Union shall appoint such additional working stewards as the Contractor requests to provide independent coverage of one or more such locations. In such cases, a steward may not service more than one work location without the approval of the Contractor.
4. 2.4 The stewards shall not have the right to determine when overtime shall be worked or who shall work overtime.
Section 4. 3 Steward Layoff/Discharge Contractor agrees to notify the appropriate Union twenty- four ( 24) hours before the layoff of a steward, except in the case of disciplinary discharge for just cause. If the steward is protected against such layoff by the provisions of the applicable Master Labor Agreement, such provisions shall be recognized when the steward possesses the necessary qualifications to perform the remaining work. In any case in which the steward is discharged or disciplined for just cause, the appropriate Union will be notified immediately by the Contractor, and such discharge or discipline shall not become final ( subject to any later filed grievance) until twenty- four ( 24) hours after such notice has been given.
Section 4. 4 Employees on Non -Project Work On work where the personnel of the City may be working in close proximity to the construction activities covered by this Agreement, the Union agrees that the Union representatives, stewards, and individual workers will not interfere with the City personnel, or with personnel employed by the any other employer not a Party to this Agreement.
ARTICLE 5
WAGES AND BENEFITS
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Section 5. 1 Wages All employees covered by this Agreement shall be classified in accordance with work performed and paid by the Contractors the hourly wage rates for those classifications in compliance with the applicable prevailing wage rate determination established pursuant to applicable law. If a prevailing rate increases under law, the Contractor shall pay that rate as of its effective date under the law. This Agreement does not relieve Contractors directly signatory to a Master Labor Agreement with one of the Unions signing this Agreement from paying all of the wages set forth in such Agreements.
Section 5. 2 Benefits
5. 2. 1 Contractors shall pay contributions to the established employee benefit funds in the amounts designated in the appropriate Master Labor Agreement and make all ernployee— authorized deductions in the amounts designated in the appropriate Master Labor Agreement; however, such contributions shall not exceed the contribution amounts set forth in the applicable prevailing wage determination. This Agreement does not relieve Contractors directly signatory to one or more of the Master Labor Agreements from making all contributions set forth in those Master Labor Agreements without reference to the foregoing.
5. 2. 2 The Contractor adopts and agrees to be bound by the written terms of the applicable, legally established, trust agreement( s) specifying the detailed basis on which payments are to be made into, and benefits paid out of, such trust funds for its employees. The Contractor authorizes the Parties to such trust funds to appoint trustees and successor trustees to administer the trust funds and hereby ratifies and accepts the trustees so appointed as if made by the Contractor.
5. 2. 3 Each Contractor and subcontractor is required to certify to the CWA Administrator that it has paid all benefit contributions due and owing to the appropriate Trust( s) prior to the receipt of its final payment and/ or retention. Further, upon timely notification by a Union to the CWA Administrator, the CWA Administrator shall work with any prime Contractor or subcontractor who is delinquent in payments to assure that proper benefit contributions are made, to the extent of requesting the City or the prime Contractor to withhold payments otherwise due such Contractor, until such contributions have been made or otherwise guaranteed.
Section 5. 3 Wage Premiums Wage premiums, including but not limited to pay based on height of work, hazard pay, scaffold pay and special skills shall not be applicable to work under this Agreement, except to the extent provided for in any applicable prevailing wage determination.
ARTICLE 6
HOURS OF WORK, OVERTIME, SHIFTS AND HOLIDAYS
Section 6. 1 Hours of Work Eight ( 8) hours per day between the hours of 6: 00 a. m. and 5: 30 p. m., plus one- half ('/ z) hour unpaid lunch approximately mid -way through the shift, shall constitute the standard work day. Forty ( 40) hours per week shall constitute a regular week' s work. The work week will start on Sunday and conclude on Saturday. The foregoing provisions of this Article are applicable unless otherwise provided in the applicable prevailing wage 15 City of Palm Springs CWA
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determination, or unless changes are permitted by law and such are agreed upon by the Parties.
Nothing herein shall be construed as guaranteeing any employee eight ( 8) hours per day or forty 40) hours per week, or a Monday through Friday standard work schedule.
Section 6. 2 Place of Work Employees shall be at their place of work ( as designated by the Contractor), at the starting time and shall remain at their place of work, performing their assigned functions, until quitting time. The place of work is defined as the gang or tool box or equipment at the employee' s assigned work location or the place where the foreman gives instructions. The Parties reaffirm their policy of a fair day' s work for a fair day' s wage. Except as provided in Section 6.6, there shall be no pay for time not worked unless the employee is otherwise engaged at the direction of the Contractor.
Section 6. 3 Overtime Overtime shall be paid in accordance with the requirements of the applicable prevailing wage determination. There shall be no restriction on the Contractor' s scheduling of overtime or the nondiscriminatory designation of employees who will work overtime. There shall be no pyramiding of overtime ( payment of more than one form of overtime compensation for the same hour) under any circumstances.
Section 6. 4 Shifts and Alternate Work Schedules
6. 4. 1 Alternate starting and quitting time and/ or shift work may be performed at the option of the Contractor upon three ( 3) days' prior notice to the affected Union( s), unless a shorter notice period is provided for in the applicable Master Labor Agreement If two shifts are worked, each shall consist of eight ( 8) hours of continuous work exclusive of a one- half (` z) hour non -paid lunch period, for eight ( 8) hours pay. The last shift shall start on or before 6: 00 p. m.
The first shift starting at or after 6: 00 a. m. is designated as the first shift, with the second shift following.
6. 4. 2 Contractors, the Trades Council and the Union recognize the economic impact upon the City and City residents of the Project being undertaken by the City and agree that all Parties to this Agreement desire and intend Project Work to be undertaken in a cost efficient and effective manner to the highest standard of quality and craftsmanship. Recognizing the economic conditions, the Parties agree that, except to the extent permitted by law, employees performing Project Work shall not be entitled to any differentials or additional pay based upon the shift or work schedule of the employees. Instead, all employees working on Project Work shall be paid at the same base rate regardless of shift or work schedule worked.
6.4. 3 Because of operational necessities, the second shift may, at the City' s direction, be scheduled without the preceding shift having been worked. It is recognized that the City' s operations and/ or mitigation obligations may require restructuring of normal work schedules.
Except in an emergency or when specified in the City' s bid specification, the Contractor shall give affected Union( s) at least three ( 3) days' notice of such schedule changes.
Section 6. 5 Holidays Recognized holidays for Project Work shall be those set forth and governed by the prevailing wage determination( s) applicable to such Project Work. 16 City of Palm Springs CWA
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Section 6. 6 Show -up Pay
6. 6. 1 Except as otherwise required by State law, Employees reporting for work and for whom no work is provided, except when given prior notification not to report to work, shall receive two ( 2) hours pay at the regular straight time hourly rate. Employees who are directed to start work shall receive four ( 4) hours of pay at the regular straight time hourly rate. Employees who work beyond four ( 4) hours shall be paid for actual hours worked. Whenever reporting pay is provided for employees, they will be required to remain at the Project Site and available for work for such time as they receive pay, unless released earlier by the principal supervisor of the Contractor( s) or his/ her designated representative. Each employee shall furnish his..'her Contractor with his/ her current address and telephone number, and shall promptly report any changes to the Contractor.
6. 6. 2 An employee called out to work outside of his: -her shift shall receive a minimum of two ( 2) hours pay at the appropriate rate. This does not apply to time worked as an extension of (before or after) the employee' s normal shift.
6. 6. 3 When an employee leaves the job or work location of his/ her own volition, or is discharged for cause or is not working as a result of the Contractor' s invocation of Section 12. 3, the employee shall only be paid for actual time worked.
Section 6. 7 Meal Periods The Contractor will schedule a meal period of no more than onehalf hour duration at the work location at approximately mid -point of the schedule shift; provided, however, that the Contractor may, for efficiency of the operation, establish a schedule which coordinates the meal periods of two or more crafts. An employee may be required to work through his meal period because of an emergency or a threat to life or property, or for such other reasons as are in the applicable Master Labor Agreement, and if he is so required, he shall be compensated in the manner established in the applicable Master Labor Agreement.
Section 6. 8 Make- up Days To the extent permitted by the applicable Master Labor Agreement ( MLA) determination, when an employee has been prevented from working for reasons beyond the control of the employer, including, but not limited to inclement weather or other natural causes, during the regularly scheduled work week, a make- up day may be worked on a non -regularly scheduled work day for which an employee shall receive eight ( 8) hours pay at the straight time rate of pay or any premium rate required for such hours under the state prevailing wage law.
ARTICLE 7
WORK STOPPAGES AND LOCK -OUTS
Section 7. 1 No Work Stoppages or Disruptive Activity The Trades Council and the Unions signatory hereto agree that neither they, and each of them, nor their respective officers or agents or representatives, shall incite or encourage, condone or participate in any strike, walk -out, slowdown, picketing, observing picket lines or other activity of any nature or kind whatsoever, for any cause or dispute whatsoever with respect to or in any way related to Project Work, or which interferes with or otherwise disrupts, Project Work, or with respect to or related to the City or 17 City of Palm Springs CWA
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Contractors, including, but not limited to, economic strikes, unfair labor practice strikes, safety strikes, sympathy strikes and jurisdictional strikes whether or not the underlying dispute is arbitrable. Any such actions by the Trades Council, or Unions, or their members, agents, representatives or the employees they represent shall constitute a violation of this Agreement.
The Trades Council and the Union shall take all steps necessary to obtain compliance with this Article and neither should be held liable for conduct for which it is not responsible.
Section 7. 2 Employee Violations The Contractor may discharge any employee violating Section 7. 1 above and any such employee will not be eligible for rehire under this Agreement.
Section 7. 3 Standing to Enforce The City, the CWA Administrator, or any Contractor affected by an alleged violation of Section 7. 1 shall have standing and the right to enforce the obligations established therein.
Section 7. 4 Expiration of Master Labor Agreement If the Master Labor Agreement, or any local, regional, and other applicable collective bargaining agreements expire during the term of the Project, the Union( s) agree that there shall be no work disruption of any kind as described in Section 7. 1 above as a result of the expiration of any such agreement( s) having application on this Project and/ or failure of the involved Parties to that agreement to reach a new contract.
Terms and conditions of employment established and set at the time of bid shall remain established and set. Otherwise to the extent that such agreement does expire and the Parties to that agreement have failed to reach concurrence on a new contract, work will continue on the Project on one of the following two ( 2) options, both of which will be offered by the Unions involved to the Contractors affected:
7. 4. 1 Each of the Unions with a contract expiring must offer to continue working on the Project under interim agreements that retain all the terms of the expiring contract, except that the Unions involved in such expiring contract may each propose wage rates and employer contribution rates to employee benefit funds under the prior contract different from what those wage rates and employer contributions rates were under the expiring contracts. The terms of the Union' s interim agreement offered to Contractors will be no less favorable than the terms offered by the Union to any other employer or group of employers covering the same type of construction work in Riverside County.
7.4. 2 Each of the Unions with a contract expiring must offer to continue working on the Project under all the terms of the expiring contract, including the wage rates and employer contribution rates to the employee benefit funds, if the Contractor affected by that expiring contract agrees to the following retroactive provisions: if a new Master Labor Agreement, local, regional or other applicable labor agreement for the industry having application at the Project is ratified and signed during the term of this Agreement and if such new labor agreement provides for retroactive wage increases, then each affected Contractor shall pay to its employees who performed work covered by this Agreement at the Project during the hiatus between the effective dates of such expired and new labor agreements, an amount equal to any such retroactive wage increase established by such new labor agreement, retroactive to whatever date is provided by the new labor agreement for such increase to go into effect, for each employee' s hours worked 18 City of Palm Springs CWA
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on the Project during the retroactive period. All Parties agree that such affected Contractors shall be solely responsible for any retroactive payment to its employees.
7. 4. 3 Some Contractors may elect to continue to work on the Project under the terms of the interim agreement option offered under paragraph 7. 4. 1 and other Contractors may elect to continue to work on the Project under the retroactivity option offered under paragraph 7. 4. 2. To decide between the two options, Contractors will be given one week after the particular labor agreement has expired or one week after the Union has personally delivered to the Contractors in writing its specific offer of terms of the interim agreement pursuant to paragraph 7. 4. 1, whichever is the later date. If the Contractor fails to timely select one of the two options, the Contractor shall be deemed to have selected the provisions of 7. 4. 2.
Section 7. 5 No Lockouts Contractors shall not cause, incite, encourage, condone or participate in any lock -out of employees with respect to Project Work during the term of this Agreement. The term " lock -out" refers only to a Contractor' s exclusion of employees in order to secure collective bargaining advantage, and does not refer to the discharge, termination or layoff of employees by the Contractor for any reason in the exercise of rights pursuant to any provision of this Agreement, or any other agreement, nor does " lock -out" include the City' s decision to stop, suspend or discontinue any Project Work or any portion thereof for any reason.
Section 7. 6 Best Efforts to End Violations
7. 6. 1 If a Contractor contends that there is any violation of this Article or Section 8. 3, it shall notify, in writing, the Executive Secretary of the Trades Council, the Senior Executive of the involved Union( s) and the CWA Administrator. The Executive Secretary and the leadership of the involved Union( s) will immediately instruct, order and use their best efforts to cause the cessation of any violation of the relevant Article.
7. 6. 2
If the Union contends that any Contractor has violated this Article, it will notify that the Contractor and the CWA Administrator, setting forth the facts which the Union contends violate the Agreement, at least twenty- four ( 24) hours prior to invoking the procedures of Section 7. 8. The CWA Administrator shall promptly order the involved Contractor( s) to cease any violation of the Article.
Section 7. 7 Withholding of services for failure to pay wages and fringe benefits
7. 7. 1 Notwithstanding any provision of this Agreement to the contrary, it shall not be a violation of this Agreement for any Union to withhold the services of its members ( but not the right to picket) from a particular Contractor who.
a) Fails to timely pay its weekly payroll; or
b) Fails to make timely payments to the Union' s Joint Labor/ Management Trust Funds in accordance with the provisions of the applicable Master Labor Agreements. Prior to withholding its members' services for the Contractor' s failure to make timely payments to the Union' s Joint 19 City of Palm Springs CWA
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Labor/ Management Trust Funds, the Union shall give at least ten ( 10) days ( unless a lesser period of time is provided in the Union' s Master Labor Agreement, but in no event less than forty-eight (48) hours) written notice of such failure to pay by registered or certified mail, return receipt requested, and by facsimile transmission to the involved Contractor and to the City. Union will meet within the ten ( 10) day period to attempt to resolve the dispute.
7. 7. 2 Upon the payment of the delinquent Contractor of all monies due and then owing for wages and/ or fringe benefit contributions, the Union shall direct its members to return to work and the Contractor shall return all such members back to work.
Section 7. 8 Expedited Enforcement Procedure Any party, including the City, which the Parties agree is a Party to the Agreement for purposes of this Article and an intended beneficiary of this Article, or the CWA Administrator, may institute the following procedures, in lieu of or in addition to any other action at law or equity, when a breach of Section 7. 1 or 7. 5, above, or Section 8. 3 is alleged.
7. 8. 1 The Party invoking this procedure shall notify Fred Horowitz, or Louis Zigman, Subject to Confirmation] who have been selected by the negotiating Parties, and whom the Parties agree shall be the permanent arbitrators under this procedure. If the permanent arbitrators are unavailable at any time, any one of the permanent Arbitrators who is notified shall appoint his alternate to hear the matter. Expenses incurred in arbitration shall be borne equally by the Parties involved in the arbitration and the decision of the arbitrator shall be final and binding on the Parties, provided, however, that the arbitrator shall not have the authority to alter or amend or add to or delete from the provisions of this Agreement in any way. Notice to the arbitrator shall be by the most expeditious means available, with notices to the Parties alleged to be in violation, and to the Trades Council if it is a Union alleged to be in violation. For purposes of this Article, written notice may be given by telegram, facsimile, hand delivery or overnight mail and will be deemed effective upon receipt.
7. 8. 2 Upon receipt of said notice, the arbitrator named above or his. -her alternate shall sit and hold a hearing within twenty- four ( 24) hours if it is contended that the violation still exists, but not sooner than twenty- four ( 24) hours after notice has been dispatched to the Executive Secretary and the Senior Official(s) as required by Section 7.6, as above.
7. 8. 3 The arbitrator shall notify the Parties of the place and time chosen for this hearing. Said hearing shall be completed in one session, which, with appropriate recesses at the arbitrator' s discretion, shall not exceed 24 hours unless otherwise agreed upon by all Parties. A failure of any Party or Parties to attend said hearings shall not delay the hearing of evidence or the issuance of any award by the arbitrator.
7. 8. 4 The sole issue at the hearing shall be whether or not a violation of Sections 7. 1 or
7.5, above, or Section 8. 3 has in fact occurred. The arbitrator shall have no authority to consider any matter in justification, explanation or mitigation of such violation. The award shall be issued in writing within three ( 3) hours after the close of the hearing, and may be issued without an 20 City of Palm Springs CWA
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opinion. If any Party desires a written opinion, one shall be issued within fifteen ( 15) days, but its issuance shall not delay compliance with, or enforcement of, the Award. The arbitrator may order cessation of the violation of the Article and other appropriate relief, and such award shall be served on all Parties by hand or registered mail upon issuance.
7. 8. 5 Such award shall be final and binding on all Parties and may be enforced by any court of competent jurisdiction upon the filing of this Agreement and all other relevant documents referred to herein above in the following manner. Written notice of the filing of such enforcement proceedings shall be given to the other Party. In any judicial proceeding to obtain a temporary order enforcing the arbitrator' s award as issued under this Article, all Parties waive the right to a hearing and agree that such proceedings may be ex parte. Such agreement does not waive any Party' s right to participate in a hearing for a final order of enforcement. The court' s order or orders enforcing the arbitrator' s award shall be served on all Parties by hand or by delivery to their address as shown on this Agreement ( for a Union), as shown on their business contract for work under this Agreement ( for a Contractor) and to the representing Union ( for an employee), by certified mail by the Party or Parties first alleging the violation.
7. 8. 6 Any rights created by statute or law governing arbitration proceedings inconsistent with the above procedure or which interfere with compliance hereto are hereby waived by the Parties to whom they accrue.
7. 8. 7 The fees and expenses of the arbitrator shall be equally divided between the Party or Parties initiating this procedure and the respondent Party or Parties.
ARTICLE 8
WORK ASSIGNMENTS AND JURISDICTIONAL DISPUTES
Section 8. 1 Assignment of Work, The assignment of Project Work will be solely the responsibility of the Employer performing the work involved; and such work assignments will be in accordance with the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry ( the " Plan") or any successor Plan.
Section 8. 2 The Plan
8. 2. 1 All jurisdictional disputes on Project Work between or among the building and construction trades Unions and the Employers parties to this Agreement, shall be settled and adjusted according to the present Plan established by the Building and Construction Trades Department or any other plan or method of procedure that may be adopted in the future by the Building and Construction Trades Department. Decisions rendered shall be final, binding and conclusive on the Employers and Unions parties to this Agreement.
8. 2. 2 If a dispute arising under this Article involves the Southwest Regional Council of Carpenters or any of its subordinate bodies, an Arbitrator shall be chosen by the procedures specified in Article V, Section 5, of the Plan from a list composed of John Kagel, Thomas Angelo, Robert Hirsch, and Thomas Pagan, [ Subject to Confirmation] and the Arbitrator' s 21 Clry of Palm Springs CWA
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hearing on the dispute shall be held at the offices of the Trades Council within 14 days of the selection ofthe Arbitrator. All other procedures shall be as specified in the Plan.
Section 8. 3 No Work Disruption Over Jurisdiction All jurisdictional disputes shall be resolved without the occurrence of any strike, work stoppage, or slow -down of any nature, and the Employer' s assignment shall be adhered to until the dispute is resolved. Individuals violating this section shall be subject to immediate discharge.
Section 8. 4 Pre -Job Conferences As provided in Article 16, each Contractor will conduct a prejob conference with the appropriate affected Union( s) prior to commencing work. The Trades Council and the CWA Administrator shall be advised in advance of all such conferences and may participate ifthey wish.
Section 8. 5 Resolution of Jurisdictional Disputes If any actual or threatened strike, sympathy strike, work stoppage, slow down, picketing, hand -billing or otherwise advising the public that a labor dispute exists, or interference with the progress of Project Work by reason of a jurisdictional dispute or disputes occurs, the Parties shall exhaust the expedited procedures set forth in the Plan, if such procedures are in the plan then currently in effect, or otherwise as in Article 7 above.
ARTICLE 9
MANAGEMENT RIGHTS
Section 9. 1 Contractor and City Rights The Contractors and the City have the sole and exclusive right and authority to oversee and manage construction operations on Project Work without any limitations unless expressly limited or required by a specific provision of this Agreement or an MLA. In addition to the following and other rights of the Contractors enumerated in this Agreement, the Contractors expressly reserve their management rights and all the rights conferred upon them by law. The Contractor' s rights include, but are not limited to, the right to:
a) Plan, direct and control operations of all work in the manner required by, and in compliance with, the contract document, including but not limited to, plans, specifications, and scope of work under contract;
b) Hire, promote, transfer and layoff their own employees, respectively, as deemed appropriate to satisfy work and! or skill requirements; c) Promulgate and require all employees to observe reasonable job rules and security and safety regulations;
d) Discharge, suspend or discipline their own employees for just cause; e) Utilize, in accordance with City approval, any work methods, procedures or techniques, and select, use and install any types or kinds of materials, apparatus or 22 City of Palm Springs CWA
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equipment, regardless of source of manufacture or construction; assign and schedule work at their discretion; and
f) Assign overtime, determine when it will be worked and the number and identity of employees engaged in such work, subject to such provisions in the applicable Master Labor Agreement ( s) requiring such assignments be equalized or otherwise made in a nondiscriminatory manner.
Section 9. 2 Specific City Rights In addition to the following and other rights of the City enumerated in this Agreement, the City expressly reserves its management rights and all the rights conferred on it by law. T' he City' s rights ( and those of the Contract Administrator on its behalf) include but are not limited to the right to;
a) Inspect any construction site or facility to ensure that the Contractor follows the applicable safety and other work requirements, and to insure compliance with contract documents, including but not limited to, plans, specifications, and scope of work under contract;
b) Require Contractors to establish a different work week or shift schedule for particular employees as required to meet the operational needs of the Project Work at a particular location;
c) At its sole option, terminate, delay and::or suspend any and all portions of the covered work at any time; prohibit some or all work on certain days or during certain hours of the day to accommodate the ongoing operations of the City' s Facilities and/ or to mitigate the effect of ongoing Project Work on businesses and residents in the neighborhood of the Project site; and/ or require such other operational or schedule changes it deems necessary, in its sole judgment, to effectively maintain its primary mission and remain a good neighbor to those in the area of its facilities. ( In order to permit the Contractors and Unions to make appropriate scheduling plans, the City will provide the CWA Administrator, and the affected Contractor(s) and Union(s) with reasonable notice of any changes it requires pursuant to this section; provided, however, that if notice is not provided in time to advise employees not to report for work, show -up pay shall be due pursuant to the provision of Article 6, Section 6. 6);
d) Approve any work methods, procedures and techniques used by Contractors whether or not these methods, procedures or techniques are part of industry practices or customs; and
e) Investigate and process complaints, through the CWA Administrator, in the matter set forth in Articles 7 and 10.
Section 9. 3 Use of Materials There should be no limitations or restriction by Union upon a Contractor' s choice of materials or design, nor, regardless of source or location, upon the full use and utilization, of equipment, machinery, packaging, precast, prefabricated, prefinished, or preassembled materials, tools or other labor saving devices, subject to the application of the State 23 City of Palm Springs CWA
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Public Contracts and Labor Codes as required by law. The onsite installation or application of such items shall be performed by the craft having jurisdiction over such work.
Section 9. 4 Special Equipment, Warranties and Guaranties
9. 4. 1 It is recognized that certain equipment of a highly technical and specialized nature may be installed at Project Work sites. The nature of the equipment, together with the requirements for manufacturer' s warranties, may dictate that it be prefabricated pre -piped and/ or pre -wired and that it be installed under the supervision and direction of the City' s and:`or manufacturer' s personnel. The Unions agree to install such equipment without incident to insure compliance with the specifications for the equipment being installed and to insure compliance with contract documents, including but not limited to, plans, specifications, and scope of work under contract.
9.4. 2 The Parties recognize that the Contractor will initiate from time to time the use of new technology, equipment, machinery, tools, and other labor -savings devices and methods of performing Project Work. The Union agrees that they will not restrict the implementation of such devices or work methods. The Unions will accept and will not refuse to handle, install or work with any standardized and/ or catalogue: parts, assemblies, accessories, prefabricated items, preassembled items, partially assembled items, or materials whatever their source of manufacture or construction.
9. 4. 3 If any disagreement between the Contractor and the Unions concerning the methods of implementation or installation of any equipment, or device or item, or method of work, arises, or whether a particular part or pre -assembled item is a standardized or catalog part or item, the work will precede as directed by the Contractor and the Parties shall immediately consult over the matter. If the disagreement is not resolved, the affected Union( s) shall have the right to proceed through the procedures set forth in Article 10.
Section 9. 5 No Less Favorable Treatment The parties agree that Project Work will not receive less favorable treatment than that on any other project which the Unions, Contractors and employees work.
ARTICLE 10
SETTLEMENT OF GRIEVANCES AND DISPUTES
Section 10. 1 Cooperation and Harmony on Site
10. 1. 1 This Agreement is intended to establish and foster continued close cooperation between management and labor. The Trades Council shall assign a representative to this Project for the purpose of assisting the local Unions, and working with the CWA Administrator, together with the Contractors, to complete the construction of the Project economically, efficiently, continuously and without any interruption, delays or work stoppages.
10. 1. 2 The CWA Administrator, the Contractors, Unions, and employees collectively and individually, realize the importance to all Parties of maintaining continuous and 24 City of Palm Springs CWA
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uninterrupted performance of the Project Work, and agree to resolve disputes in accordance with the grievance provisions set forth in this Article or, as appropriate, those of Article 7 or 8.
10. 1. 3 The CWA Administrator shall oversee the processing of grievances under this Article and Articles 7 and 8, including the scheduling and arrangements of facilities for meetings, selection of the arbitrator from the agreed -upon panel to hear the case, and any other administrative matters necessary to facilitate the timely resolution of any dispute; provided, however, it is the responsibility of the principal parties to any pending grievance to insure the time limits and deadlines are met.
Section 10. 2 Processing Grievances Any questions arising out of and during the term of this Agreement involving its interpretation and application, which includes applicable provisions of the Master Labor Agreement, but not jurisdictional disputes or alleged violations of Section 7. 1 and 7. 4 and similar provisions, shall be considered a grievance and subject to resolution under the following procedures.
A. Employee Grievances
Step 1. When any employee subject to the provisions of this Agreement feels aggrieved by an alleged violation of this Agreement, the employee shall, through his local Union business representative or, job steward, within ten 10) working days after the occurrence of the violation, give notice to the work site representative of the involved Contractor stating the provision( s) alleged to have been violated. A business representative of the local Union or the job steward and the work site representative of the involved Contractor shall meet and endeavor to resolve the matter within ten ( 10) working days after timely notice has been given. If they fail to resolve the matter within the prescribed period, the grieving party may, within ten 10) working days thereafter, pursue Step 2 of this grievance procedure provided the grievance is reduced to writing, setting forth the relevant information, including a short description thereof, the date on which the alleged violation occurred, and the provision( s) of the Agreement alleged to have been violated. Grievances and disputes settled at Step 1 shall be non- precedential except as to the parties directly involved.
B. Union/ Contractor Grievances
Should the Union( s) or any Contractor have a dispute with the other Party( ies) and, if after conferring within ten ( 10) working days after the disputing Party knew or should have known of the facts or occurrence giving rise to the dispute, a settlement is not reached within five ( 5) working days, the dispute shall be reduced to writing and processed to Step 2 in the same manner as outlined in Step 1 above for the adjustment of an employee complaint.
St. ep 2. The business manager of the involved Union or his designee, together with the site representative of the involved Contractor, and the labor relations 25 City of Palm Springs CWA
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representative of the CWA Administrator, shall meet within seven ( 7) working days of the referral of the dispute to this second step to arrive at a satisfactory settlement thereof. If the Parties fail to reach an agreement, the dispute may be appealed in writing in accordance with the provisions of Step 3 within seven ( 7) calendar days after the initial meeting at Step 2.
St.. ep 3. ( a) If the grievance shall have been submitted but not resolved under Step 2, either the Union of Contractor Party may request in writing to the CWA Administrator ( with copy( ies) to the other Party( ies) within seven 7) calendar days after the initial Step 2 meeting, that the grievance be submitted to an arbitrator selected from the agreed upon list in Attachment ( D)" attached hereto, on a rotational basis in the order listed.
The CWA Administrator shall notify the parties to the grievance of the date, time and location of the hearing. The failure of any party to attend said hearing shall not delay the hearing of evidence or the issuance of any decision by the arbitrator. The decision of the arbitrator shall be final and binding on all parties. Should any party seek confirmation of the award made by the arbitrator, the prevailing party shall be entitled to receive its reasonable attorney fees and costs.
b) Failure of the grieving Party to adhere to the time limits established herein shall render the grievance null and void. The time limits established herein may be extended only by consent of the Parties involved at the particular step where the extension is agreed upon. The arbitrator shall have the authority to make decisions only on issues presented and shall not have the authority to change, amend, add to or detract from any of the provisions of this Agreement.
c) The fees and expenses incurred by the arbitrator, as well as those jointly utilized by the Parties ( i. e. conference room, court reporter, etc.) in arbitration, shall be divided equally by the Parties to the arbitration, including Union( s) and Contractor( s) involved.
C. Union/ City Grievances
This provision shall be the sole and exclusive remedy for alleged violations of the Agreement between the City and the Unions. Should the Union or the City have a grievance for a violation of this Agreement against the other party, the Council and the City Manager, or his designee, shall meet in an attempt to resolve the grievance. If these parties are unable to resolve the matter, either party may request that the grievance be submitted to final and binding arbitration in accordance with the process set forth in Section 10. 2 Step 3, above. The City shall not be liable for monetary damages unless the Arbitrator, selected by the parties, finds a willful or knowing breach ofthis Agreement by the City.
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Section 10. 3 Limit on Use of Procedures The procedures contained in this Article shall not be applicable to any alleged violation of Articles 7 or 8, with a single exception that any employee discharged for violation of Section 7. 2, or Section 8. 3, may resort to the procedures of this Article to determine only if he/ she was, in fact, engaged in that violation.
Section 10. 4 Notice The CWA Administrator ( and the City, in the case of any grievance regarding the Scope of this Agreement), shall be notified by the involved Contractor of all actions at Steps 2 and 3, and further, the CWA Administrator shall, upon its own request, be permitted to participate fully as a party in all proceedings at such steps.
ARTICLE I I
REGULATORY COMPLIANCE
Section 11. 1 Compliance with All Laws The Trades Council and all Unions, Contractors, and their employees shall comply with all applicable federal and state laws, ordinances and regulations including, but not limited to, those relating to safety and health, employment and applications for employment. All employees shall comply with the safety regulations established by the City, the CWA Administrator or the Contractor. Employees must promptly report any injuries or accidents to a supervisor.
Section 11. 2 Prevailing Wage Compliance All Contractors shall comply with the state laws and regulations. Compliance with this obligation may be enforced by the appropriate parties through Article 10 above, or by pursing the remedies available under state law through the Labor Commissioner or the Department of Industrial Relations.
Section 11. 3 Violations of Law Should there be a finding by the City or a Court or administrative tribunal of competent jurisdiction that a Contractor has violated federal and/ or state law or regulation, the City, upon notice to the Contractor that it or its subcontractors is in such violation ( including any finding of non- compliance with the California prevailing wage obligations as enforced pursuant to DIR regulations), and in the absence of the Contractor or subcontractor remedying such violation, may take such action as it is permitted by law or contract to encourage that Contractor to come into compliance, including, but not limited to, assessing fines and penalties and/ or removing the offending Contractor from Project Work.
Additionally, in accordance with the Agreement between the City and the Contractor, the City may cause the Contractor to remove from Project work any subcontractor who is in violation of state or federal law.
ARTICLE 12
SAFETY AND PROTECTION OF PERSON AND PROPERTY
Section 12. 1 Safety
12. 1. 1 It shall be the responsibility of each Contractor to ensure safe working conditions and employee compliance with any safety rules contained herein or established by the City or the Contractor, whichever is most restrictive shall apply. It is understood that employees have an 27 City of Palm Springs CWA
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individual obligation to use diligent care to perform their work in a safe manner and to protect themselves and the property of the Contractor and the City.
12. 1. 2 Employees shall be bound by the safety, security and visitor rules established by the Contractor and/or the City. These rules will be published and posted. An employee' s failure to satisfy his/ her obligations under this section will subject him/ her to discipline, up to and including discharge.
12. 1. 3 The Parties shall adopt the Substance Abuse Policy attached hereto as Attachment " E," which shall be the policy and procedure utilized under this Agreement.
Section 12. 2 Suspension of Work for Safety A Contractor may suspend all or a portion of the job to protect the life and safety of employees. In such cases, employees will be compensated only for the actual time worked; provided, however, that where the Contractor requests employees to remain at the site and be available for work, the employees will be compensated for stand- by time at their basic hourly rate of pay.
Section 12. 3 Water and Sanitary Facilities The Contractor shall provide adequate supplies of drinking water and sanitary facilities for all employees as required by state law or regulation.
ARTICLE 13
TRAVEL AND SUBSISTENCE
Travel expenses, travel time, subsistence allowances, zone rates and parking reimbursements shall be paid in accordance with the applicable Master Labor Agreement unless superseded by the applicable prevailing wage determination.
ARTICLE 14
APPRENTICES
Section 14. 1 Importance of Training The Parties recognize the need to maintain continuing support of the programs designed to develop adequate numbers of competent workers in the construction industry, the obligation to capitalize on the availability of the local work force in the area served by the City, and the opportunities to provide continuing work under the construction program. To these ends, the Parties will facilitate, encourage, and assist local residents to commence and progress in LaborNanagement Apprenticeship and/ or training Programs in the construction industry leading to participation in such apprenticeship programs.
The City and the Trades Council, will work cooperatively to identify, or establish and maintain, effective programs and procedures for persons interested in entering the construction industry and which will help prepare them for the formal joint laborlmanagement apprenticeship programs maintained by the signatory Unions.
Section 14. 2 Use of Apprentices
14. 2. 1 Apprentices used on Projects under this Agreement shall be registered in Joint Labor Management Apprenticeship Programs approved by the State of California. Apprentices 28 City of Palm Springs CWA
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may comprise up to thirty percent ( 30%) of each craft' s work force ( calculated by hours worked) at any time, unless the standards of the applicable joint apprenticeship committee confirmed by the Division of Apprenticeship Standards (" DAS"), establish a lower or higher maximum percentage. Where the standards permit a higher percentage, such percentage shall apply on Project Work. Where the applicable standards establish a Iower percentage, the applicable Union will use its best efforts with the Joint Labor Management apprenticeship committee and, if necessary, the DAS to permit up to thirty percent ( 30%) apprentices on the Project.
14. 2. 2 The Unions agree to cooperate with the Contractor in furnishing apprentices as requested up to the maximum percentage. The apprentice ratio for each craft shall be ill compliance, at a minimum, with the applicable provisions of the Labor Code relating to utilization of apprentices. The City shall encourage such utilization, and, both as to apprentices and the overall supply of experienced workers, the CWA Administrator will work with the Trades Council to assure appropriate and maximum utilization of apprentices and the continuing availability of both apprentices and journey persons.
14. 2. 3 The Parties agree that apprentices will not be dispatched to Contractors working under this Agreement unless there is a journeymen working on the project where the apprentice is to be employed who is qualified to assist and oversee the apprentice' s progress through the program in which he is participating.
14. 2. 4 All apprentices shall work under the direct supervision of a journeyman from the trade in which the apprentice is indentured. A journeyman shall be defined as set forth in the California Code of Regulations, Title 8 [ apprenticeship] section 205, which defines a journeyman as a person who has either completed an accredited apprenticeship in his or her craft, or has completed the equivalent of an apprenticeship in length and content of work experience and all other requirements in the craft which has workers classified as journeyman in the apprenticeable occupation. Should a question arise as to a journeyman' s qualification under this subsection, the Contractor shall provide adequate proof evidencing the worker' s qualification as a journeyman to the Trades Council.
Section 14. 3 Identification and Retention of Skilled Labor and Employment of Local Residents The Project Work will require large numbers of craft personnel and other supporting employees.
It is therefore the understanding and intention of the Parties to use the opportunities provided by the extensive amount of work to be covered on these Projects to promote, through cooperative efforts, programs and procedures ( which may include, for example, programs to prepare persons for entrance into formal labor/ management apprenticeship and/ or training programs) to the community describing opportunities available as a result of the Project Work, for involvement of Local Residents in the construction industry, to assist them in entering the construction trades, and, through utilization of labor/ management apprenticeship and/ or training programs, to provide training opportunities for Local Residents and students and graduates of the City wishing to pursue a career in construction. Such cost for programs and training will be the responsibility of the Union and contractors. The City will work with the Unions, trade groups, and Contractors, in marketing such potential job and training opportunities to encourage application from residents of the City of Palm Springs. Further, with concurrence from the CWA Administrator, the Contractors and the
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Unions will work together to promptly develop and implement procedures for the identification of craft needs, the scheduling of work to facilitate the utilization of available craft employees, and the securing of services of craft employees in sufficient numbers to meet the demand of the Project Work to be undertaken. The City will work with the Contractors and Unions in promoting said opportunities to encourage application from residents of the City of Palm Springs.
ARTICLE 15
WORKING CONDITIONS
Section 15. 1 Meal and Rest Periods There will be no non -working times established during working hours except as may be required by applicable state law or regulations. Meal periods and Rest periods shall be as provided for in Wage Order 16. Individual coffee containers will be permitted at the employees' work location; however, there will be no organized coffee breaks.
Section 15. 2 Work Rules The City, the CWA Administrator, andlor relevant Contractor shall establish such reasonable work rules as they deem appropriate and not inconsistent with this Agreement. These rules will be posted at the work sites by the Contractor and may be amended thereafter as necessary. Failure to observe these rules and regulations by employees may be grounds for discipline up to and including discharge.
Section 15. 3 Emergency Use of Tools and Equipment There should be no restrictions on the emergency use of any tools by any qualified employee or supervisor, or on the use of any tools or equipment for the performance of work within the jurisdiction, provided the employee can safely use the tools and/or equipment involved and is compliance with applicable governmental rules and regulations.
Section 15. 4 Access Restrictions for Cars Recognizing the nature of the work being conducted on the site, employee access by a private automobile may be limited to certain roads and/ or parking areas.
ARTICLE 16
PRE -JOB CONFERENCES
Section 16. 1 Fach Primary Contractor which is awarded a Construction Contract by the City for Project Work shall conduct a Pre -Job conference with the appropriate affected Union( s) prior to commencing work. All Contractors who have been awarded contracts by the Primary Contractor shall attend the Pre -Job conference. The Trades Council and the CWA Administrator shall be advised in advance of all such conferences and may participate if they wish. All work assignments shall be disclosed by the Primary Contractor and all Contractors at the Pre -Job conference in accordance with industry practice. Should there be any formal jurisdictional dispute raised under Article 8, the CWA Administrator shall be promptly notified. Primary Contractor shall have available at the Pre -Job conference the plans and drawing for the work to be performed on the Project. Should additional Project Work not previously included within the 30 City of Palm Springs CWA
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scope of the Project Work be added, the Contractors performing such work will conduct a separate pre job for such newly included work.
ARTICLE 17
LABOR/ MANAGEMENT COOPERATION
Section 17. 1 Joint Committee The Parties to this Agreement may establish a six ( 6) person Joint Administrative Committee ( JAC). This JAC shall be comprised of three ( 3) representatives selected by the City and three ( 3) representatives selected by the Trades Council to monitor compliance with the terms and conditions of this Agreement and to recommend amendments to this Agreement, with the exception of the dollar threshold specified in Section 2. 2( a) and the term of this Agreement under Section 22. 1, when doing so would be to the mutual benefit of the Parties. Each representative shall designate an alternate who shall serve in his or her absence for any purpose contemplated by this Agreement. A quorum will consist of at least two ( 2) representatives selected by the City and at least two ( 2) representatives selected by the Trades Council. For voting purposes, only an equal number of City and Union representatives present may constitute a voting quorum.
Section 17. 2 Functions of Joint Committee The Committee shall meet on a schedule to be determined by the Committee or at the call of the joint chairs, to discuss the administration of the Agreement, the progress of the Project, general labor management problems that may arise, and any other matters consistent with this Agreement. Substantive grievances or disputes arising under Articles 7, 8 or 10 shall not be reviewed or discussed by this Committee, but shall be processed pursuant to the provisions of the appropriate Article. The CWA Administrator shall be responsible for the scheduling of the meetings, the preparation of the agenda topics for the meetings, with input from the Unions the Contractors and the City. Notice of the date, time and place of meetings, shall be given to the Committee members at least three ( 3) days prior to the meeting. The CWA Administrator shall prepare quarterly reports on apprentice utilization and the training and employment of City residents, and a schedule of Project Work and estimated number of craft workers needed. The Committee or an appropriate subcommittee, may review such reports and make any recommendations for improvement, if necessary, including increasing the availability of skilled trades, and the employment of local residents or other individuals who should be assisted with appropriate training to qualify for apprenticeship programs.
ARTICLE 18
SAVINGS AND SEPARABILITY
Section 18. 1 Savings Clause It is not the intention of the City, the CWA Administrator, Contractor or the Union parties to violate any laws governing the subject matter of this Agreement. The Parties hereto agree that in the event any provision of this Agreement is finally held or determined to be illegal or void as being in contravention of any applicable law or regulation, the remainder of the Agreement shall remain in full force and effect unless the part or parts so found to be void are wholly inseparable from the remaining portions of this Agreement.
Further, the Parties agree that if and when any provision( s) of this Agreement is finally held or determined to be illegal or void by a court of competent jurisdiction, the Parties will promptly enter into negotiations concerning the substantive effect of such decision for the purposes of 31 City of Palm Springs CWA
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achieving conformity with the requirements of any applicable laws and the intent of the Parties hereto. Ifthe legality of this Agreement is challenged and any form of injunctive relief is granted by any court, suspending temporarily or permanently the implementation of this Agreement, then the Parties agree that all Project Work that would otherwise be covered by this Agreement should be continued to be bid and constructed without application of this Agreement so that there is no delay or interference with the ongoing planning, bidding and construction of any Project Work.
Section 18. 2 Effect of Injunctions or Other Court Orders The Parties recognize the right of the City to withdraw, at its absolute discretion, the utilization of the Agreement as part of any bid specification should a Court of competent jurisdiction issue any order, or any applicable statute which could result, temporarily or permanently in delay of the bidding, awarding andior construction on the Project. Notwithstanding such an action by the City, or such court order or statutory provision, the Parties agree that the Agreement shall remain in full force and effect on covered Project Work to the maximum extent legally possible.
ARTICLE 19
WAIVER
A waiver of or a failure to assert any provisions of this Agreement by any or all of the Parties hereto shall not constitute a waiver of such provision for the future. Any such waiver shall not constitute a modification of the Agreement or change in the terms and conditions of the Agreement and shall not relieve, excuse or release any of the Parties from any of their rights, duties or obligations hereunder.
ARTICLE 20
AMENDMENTS
The provisions of this Agreement can be renegotiated, supplemented, rescinded or otherwise altered only by mutual agreement in writing, hereafter signed by the negotiating Parties hereto.
In the event of any conflict or ambiguity between this Agreement and any Attachment or exhibit, the provisions of this Agreement shall govern.
ARTICLE 21
DURATION OF THE AGREEMENT
Section 21. 1 Duration
21. 1. 1 This Agreement shall be effective from the date signed by all Parties and shall remain in effect for an initial period of five ( 5) years. Any covered Project Work awarded during the term of this Agreement shall continue to be covered hereunder, until completion of the Project Work, notwithstanding the expiration date of this Agreement.
21. 1. 2 This Agreement may be extended by written mutual consent of the City, as directed by the City Council and the signatory Unions for such further periods as the Parties shall agree to.
32 City of Palm Springs CWA
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Section 21. 2 Turnover and Final Acceptance of Completed Work
21. 2. 1 Construction of any phase, portion, section, or segment of Project Work shall be deemed complete when such phase, portion, section or segment has been turned over to the City by the Contractor and the City has accepted such phase, portion, section, or segment. As areas and systems of the Project are inspected and construction -tested and/ or approved and accepted by the City or third parties with the approval of the City, the Agreement shall have no further force or effect on such items or areas, except when the Contractor is directed by the City to engage and repairs or modifications required by its contract( s) with the City.
21. 2. 2 Notice of each final acceptance received by the Contractor will be provided to the Trades Council with the description of what portion, segment, etc. has been accepted. Final acceptance may be subject to a " punch" list, and in such case, the Agreement will continue to apply to each such item on the list until it is completed to the satisfaction of the City and Notice of Completion is issued by the City or its representative to the Contractor. At the request of the Union, complete information describing any " punch" list work, as well as any additional work required of a Contractor at the direction of the City pursuant to Section 22. 2. 1 above, involving otherwise turned -over and completed facilities which have been accepted by the City, will be available from the CWA Administrator.
IN WITNESS whereof the Parties have caused this Community Workforce Agreement to be executed as of the date and year above stated.
CITY OF PALM SPRINGS SAN BERNARDINO/ RIVERSIDE COUNTIES
BUILDING & CONSTRUCTION
TRADES COUNCIL, AFL-CIO
All?
By. U&" By:
Ju C1lfton Wiliam J. Per 1
City Manager Executive Secretary/ Business Manager
ATTEST:
City Clerk J APP i0VED BY CITY COUNCIL
710114. 11. A994- 7
APPROVED AS TO FORM:
33 City of Palm Springs CWA
55575. 18000U3985938 2
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J rey 9. 6alliInq&"
City Attorney
34 City of Palm Springs CWA
55575 18; Jt: A33985938 2
J – Page 288 of 1899
SAN BERNARDINOIRIVERSIDE COUNTIES BUILDING AND CONSTRUCTION
TRADES COUNCIL, AFL-CIO CRAFT UNIONS AND DISTRICT COUNCILS Siznatory Unions:
Boilermakers Local 92: - t.. prtf`ef
Bricklayers Local 4:
Cement Masons Local 500:
District Council # 36 ( Painters, Drywall finishers, Glaziers, Resilient Floor): ...- Electrical Workers Local 440:
Elevator Constructors Local 18:
Heat & Frost Insulators Local 5:
Iron Workers Local 416:
1-
01 Iron Workers Local 433:
Laborers Local 300:
Laborers Local 1184:
Operating Engineers Local 12: {
Plasterers Local 200 - o2j
Plater Tenders 1414:
U. A. Local 345:
U.A. Local 364:
3.5 City of Palm Springs CWA
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SA.N BERNARDINO/ RIVERSIDE COUNTIES BUILDING AND CONSTRUCTION
TRADES COUNCIL, AFL- CIO CRAFT UNIONS AND DISTRICT COUNCILS Signatory Unions:
Fsge I oft
Boilermakers Local 92:
Bricklayers Local 4:
Cement Masons Local 500:
District Council 436 ( Painters, Dry vall Finishers, Glaziers, Resilient Floor):
Electrical Workers Local 440:
Elevator Constructors Local 18:
Heat & Frost Insulators Local 5:
Iron Workers Local 416:
Iron Workers Local 433:
Laborers Local 300:
Laborers Local 1184:
Operating Engineers Local 12
Plasterers Local 200:
plater Tenders 1414:
U.A. Local 345:
U.A. Local 364:
35 City of Palm Springs CWA
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I
J – Page 290 of 1899
SAN BERNARDINOMIVERSIDE COUNTIES BUILDING AND CONSTRUCTION
TRADES COUNCIL, AFL- CIO CRAFT UNIONS AND DISTRICT COUNCILS Signatory Unions:
Boilermakers Local 92:
Bricklayers Local 4:
Cement Masons Local 500:
District Council # 36 ( Painters, Drywall Finishers, Glaziers, Resilient Floor):
Electrical Workers Local 440:
Elevator Constructors Local 18:
Heat & Frost Insulators Local 5:
Iron Workers Local 416:
Iron Workers Local 433:
Laborers Local 300:
Laborers Local 118 .
Operating Engineers Local 12:
Plasterers Local 200:
Plater Tenders 1414:
U. A. Local 345:
U. A. Local 364:
35 City of Palm Springs CWA
5575 18000%33985938 2
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SAN BERNARDINO/ RIVERSIDE COUNTIES BUILDING AND CONSTRUCTION
TRADES COUNCIL, AFL- CIO CRAFT UNIONS AND DISTRICT COUNCILS Signatory Unions:
Boilermakers Local 42:
Bricklayers Local 4:
Cement Masons Local 500: _
District Council # 36 ( Painters, Drywall Finishers, Glaziers, Resilient Floor):
Electrical Workers Local 440:
Elevator Constructors Local 18:
Heat & Frost Insulators Local 5: _
Iron Workers Local 416:
Iron Workers Local 433:
Laborers Local 300:
Laborers Local 1184:
Operating Engineers Local 12
Plasterers Local 200:
Plater Tenders 1414:
U. A. Local 345:
U.A. Local 364:
35 City of Palm Springs CWA
55575. 18000%33985938 2
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SAN BERNARDINO/RIVERSIDE COUNTIES BUILDING AND CONSTRUCTION
TRADES COUNCIL, AFL-CIO CRAFT UNIONS AND DISTRICT COUNCILS 5inatory UniionsPnge I of 2
Boilermakers Local 92:
Bricklayers Local 4:
Cement Masons Local 500:
District Council # 36 (Painters, Drywall Finishers, Glaziers, Resilient Floor):
Electrical Workers Local 440:
Elevator Constructors Local 18:
Heat & frost Insulators Local 5:
Iron Workers Local 416:
Iron Workers Local 433:
Laborers Local 300:
Laborers Local 1184:
Operating Engineers Local 12:
Plasterers Local 200:
Plater Tenders 1414:
U. A. Local
U. A. Local 364:
as
City of Palm Springs CWA
55 : 15 18000133985938. 2
J – Page 293 of 1899
Signatory Unions —
Roofers & Waterproofers Local 220:
Sheet Metal Local 105:
Road Sprinkler Fitters Local
Teamsters Local 166:
Southwest Regional Council of Carpenters:
7/ 13/ Z1
3C.
City of Palm Springs CWA
55575. 18000133985938 2
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Signatory Unions
Roofers & Waterproofers Local 220:
Sheet Metal Local 105:
Road Sprinkler Fitters Local 669: •%%%-
Teamsters Local 166:
Southwest Regional Council of Carpenters:
3G
City of Pairn Springs CWA
55575. 18000\ 33995938. 2
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ATTACHMENT A — LETTER OF ASSENT
To be signed by all contractors awarded work covered by the City of Palm Springs Community Workforce Agreement prior to commencing work.
Contractor' s Letterhead]
CWA Administrator
City of Palm Springs
3too E_ T41" V: z t, JQ7 Palm Springs, CA 92.0
Attn:
Re: Community Workforce Agreement - Letter of Assent
Dear Sir' Madame:
This is to confirm that [ name of company] agrees to be party to and bound by the City of Palm Springs Community Workforce Agreement effective _ _ _ _, 2021 as such Agreement may, from time to time, be amended by the negotiating parties or interpreted pursuant to its terms. Such obligation to be a party and bound by this Agreement shall extend to all work covered by the agreement undertaken by this Company on the project and this Company shall require all of its contractors and subcontractors of whatever tier to be similarly bound for all work within the scope of the Agreement by signing and furnishing to you an identical letter of assent prior to their commencement of work.
Sincerely,
Name of Construction Company]
By: [ _ _ _ Name and Title of Authorized Executive
Contractor State License No.:
Business Address:
Business Phone:
Copies of this letter must be submitted to the CWA Administrator and to the Trades Council Consistent with Section 2. 6 ( b).]
37 City of Palm Springs CWA
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ATTACHMENT B
FIRST TIER ZIP CODES ( CITY BOUNDARY including 20 MILE RADIUS) Some Zip Codes shared with neighboring cities
https:// www. zip- codes. com/ county/ ca- riverside. asp Tier 1A
92262 92264
Tier 1 B
92201 92236
92203 92240
92210 92241
92211 92253
92220 92260
92223 92270
92230 92276
92234 92282
38 City of Palm Springs CWA
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SECOND TIER ZIP CODES
REMAINDER OF RIVERSIDE COUNTY,
https:// www. zip- codes. com/ county/ ca- riverside. asp) Zip Code City
91752 Mira Loma
92201 Indio
92225 Blythe
92226 Blythe
92235 Cathedral City
92254 Mecca
92274 Thermal
92320 Calimesa
92501 Riverside
92503 Riverside
92504 Riverside
92505 Riverside
92506 Riverside
92507 Riverside
92508 Riverside
92509 Jurupa Valley
92518 March Air Reserve Base
92530 Lake Elsinore
92532 Lake Elsinor
92536 Aguanga
92539 Anza
92543 Hemet
92544 Hemet
92545 Hemet
92548 Homeland
92551 Moreno Valley
92553 Moreno Valley
92555 Moreno Valley
92571*
92557 Moreno Valley
92561 Mountain Center
92562 Murrieta
92563 Murrieta
92570*
92567 Nuevo
92582 San Jacinto
92583 San Jacinto
92584 Menifee
92585 Menifee
92586 Menifee
39 City of Palm Springs CWA
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92587 Menifee
92590 Temecula
92591 Temecula
92592 Temecula
92595 Wildomar
92596 Winchester
92860 Norco
92879 Corona
92880 Corona
92881 Corona
92882 Corona
92883 Corona
4n
City of Palm Springs CWA
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ATTACHMENT C
CITY OF PALM SPRINGS
CRAFT REQUEST FORM
TO THE CONTRACTOR: Please complete and fax this form to the applicable union to request craft workers that fulfil: thr. hiring requirements for this project. After faxing your request, please call the Local to verify receipt and substantiate their capacity to furnish workers as specified below. Please print your Fax Transmission Verification Reports and keep copies for yoU r records.
The City of Palm Springs Community Workforce Agreement establishes a goal that 30% of the total work hours shall be from workers residing: first, in those first tier zip codes which overlap all of the City of Palm Springs, with Tier 1 A ( Palm Springs residents) who will always be the first contacted for work under this CWA, as attached hereto, second, residing within Rivcrridc County. For Dispatch purposes, employees residing within either of these two ( 2) areas shall be referred to as local Residents.
TO THE t NION: Please complete the " Union Use Only" section on the next page and fax this form back to the requesting Contractor. Be sure to retain a copy of this form for your records.
CONTRACTOR USE ONLY
To: Union Local # Fax# ( ) Date:
Cc: CWA Administrator
From: Company: Issued By:
Contact Phone :( ) Contact Fax:
PLEASE PROVIDE ME WITH THE FOLLOWING UNION CRAFT WORKERS.
Craft Classification
i. e., plumber, painter,
etc.}
Journeyman
or
Apprentice
Local Resident
or
General Dispatch
Number
of
workers
needed
Report Date Report Time
TOTAL WORKERS REQUESTED
Please have worker( s) report to the following work address indicated below:
Project Name: _ Site: Address:
Report to:
Comment or Special Instructions:
City of Palm Springs CWA
55575 180= 33985938 2
On -site Tel: On -site Fax:
41 J – Page 300 of 1899
I Date dispatch request received:
Dispatch received by:
IClassification of worker requested:
Classification of worker dispatched:
UNION USE ONLY
WORKER REFERRED
Name:
Date worker was dispatched:
Is the worker referred a: ( check all that apply)
JOURNEYMAN Yes No
APPRENTICE Yes No
LOCAL RESIDENT Yes No
GENERAL DISPATCH FROM OUT OF WORK LIST Yes No
ATTACHMENT D
42 City of Palm Springs CWA
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List of Neutral Arbitrators
Subject to Confirmation]
Mark Burstein
Walter Daugherty
Fred Horowitz
Michael Prihar
Louis Zigman
43 City of Palm Springs CWA
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ATTACHMENT " E"
SUBSTANCE ABUSE POLICY
The Parties recognize the problems which drug and alcohol abuse have created in the construction industry and the need to develop drug and alcohol abuse prevention programs.
Accordingly, the Parties agree that in order to enhance the safety of the work place and to maintain a drug and alcohol free work environment, individual Employers may require applicants or employees to undergo drug and alcohol testing.
1. It is understood that the use, possession, transfer or sale of illegal drugs, narcotics, or other unlawful substances, as well as being under the influence of alcohol and the possession or consuming alcohol is absolutely prohibited while employees are on the Employer' s job premises or while working on any jobsite in connection with work performed under the Community Workforce Agreement (" CWA").
2. No Employer may implement a drug testing program which does not conform in all respects to the provisions of this Policy.
3. No Employer may implement drug testing at any jobsite unless written notice is given to the Union setting forth the location ofthe jobsite, a description ofthe project under construction, and the name and telephone number of the Project Work Supervisor. Said notice shall be addressed to the office of each Union signing the Community Workforce Agreement.
Said notice shall be delivered in person or by registered mail before the implementation of drug testing. Failure to give such notice shall make any drug testing engaged in by the Employer a violation of the CWA, and the Employer may not implement any form of drug testing at such jobsite for the following six months.
4. An employer who elects to implement drug testing pursuant to this Agreement shall require all employees on the Project Work to be tested. With respect to individuals who become employed on the Project Work subsequent to the proper implementation of this drug testing program, such test shall be administered upon the commencement of employment on the project, whether by referral from a Union Dispatch Office, transfer from another project, or another method. Individuals who were employed on the project prior to the proper implementation of this drug testing program may only be subjected to testing for the reasons set forth in Paragraph 5( f) ( 1) through 5( f) (3) of this Policy. Refusal to undergo such testing shall be considered sufficient grounds to deny employment on the project.
The following procedure shall apply to all drug testing:
a. The Employer may request urine samples only. The applicant or employee shall not be observed when the urine specimen is given. An applicant or employee, at his or her sole option, shall, upon request, receive a blood test in lieu of a urine test. No employee of the Employer shall draw blood from a bargaining unit employee, touch or handle urine specimens, or in any way become involved in the chain of custody of urine or blood specimens. A Union Business Representative, subject to the approval of the individual applicant or employee, shall be 44 City of Palm Springs CWA
55575. 18000133985938 2
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permitted to accompany the applicant or employee to the collection facility to observe the collection, bottling, and sealing of the specimen.
b. The testing shall be done by a laboratory approved by the Substance Abuse & Mental Health Services Administration ( SAMHSA), which is chosen by the Employer and the Union.
C. An initial test shall be performed using the Enzyme Multiplied Immunoassay Technique ( EMZT). In the event a question or positive result arises from the initial test, a confirmation test must be utilized before action can be taken against the applicant or employee. The confirmation test will be by Gas Chromatography Mass Spectrometry ( GC1MS).
Cutoff levels for both the initial test and confirmation test will be those established by the SAMHSA. Should these SAMHSA levels be changed during the course of this agreement or new testing procedures are approved, then these new regulations will be deemed as part of this existing agreement. Confirmed positive samples will be retained by the testing laboratory in secured long- term frozen storage for a minimum of one year. Handling and transportation of each sample must be documented through strict chain of custody procedures. d. In the event of a confirmed positive test result the applicant or employee may request, within forty- eight (48) hours, a sample of his/ her specimen from the testing laboratory for purposes of a second test to be performed at a second laboratory, designated by the Union and approved by SAMHSA. The retest must be performed within ten ( 10) days of the request. Chain of custody for this sample shall be maintained by the Employer between the original testing laboratory and the Union' s designated laboratory. Retesting shall be performed at the applicant' s or employee' s expense. In the event of conflicting test results the Employer may require a third test.
C. If, as a result of the above testing procedure, it is determined that an applicant or employee has tested positive, this shall be considered sufficient grounds to deny the applicant or employee his/ her employment on the Project Work. f. No individual who tests negative for drugs or alcohol pursuant to the above procedure and becomes employed on the Project Work shall again be subjected to drug testing with the following exceptions:
1. Employees who are involved in industrial accidents resulting in damage to plant, property or equipment or injury to him/ her or others may be tested pursuant to the procedures stated hereinabove.
2. The Employer may test employees following thirty ( 30) days advance written notice to the employee( s) to be tested and to the applicable Union. Notice to the applicable Union shall be as set forth in Paragraph 3 above and such testing shall be pursuant to the procedures stated hereinabove.
3. The Employer may test an employee where the Employer has reasonable cause to believe that the employee is impaired from performing his/her job. 45 City of Palm Springs CWA
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Reasonable cause shall be defined as exhibiting aberrant or unusual behavior, the type of which is a recognized and accepted symptom of impairment ( i. e., slurred speech, unusual lack of muscular coordination, etc.). Such behavior must be actually observed by at least two persons, one of whom shall be a Supervisor who has been trained to recognize the symptoms of drug abuse or impairment and the other of whom shall be the job steward. If the job steward is unavailable or there is no job steward on the project the other person shall be a member of the applicable Union' s bargaining unit. Testing shall be pursuant to the procedures stated hereinabove. Employees who are tested pursuant to the exceptions set forth in this paragraph and who test positive will be removed from the Employer' s payroll. g. AppIicants or employees who do not test positive shall be paid for all time lost while undergoing drug testing. Payment shall be at the applicable wage and benefit rates set forth in the applicable Union' s Master Labor Agreement. Applicants who have been dispatched from the Union and who are not put to work pending the results of a test will be paid waiting time until such time as they are put to work. It is understood that an applicant must pass the test as a condition of employment. Applicants who are put to work pending the results of a test will be considered probationary employees.
6. The employers will be allowed to conduct periodic job site drug testing on the Project under the following conditions:
a. The entire jobsite must be tested, including any employee or subcontractor' s employee who worked on that project three ( 3) working days before or after the date of the test;
b. Jobsite testing cannot commence sooner than thirty ( 30) days after start of the work on the Project;
C. Prior to start of periodic testing, a business representative will be allowed to conduct an educational period on company time to explain periodic jobsite testing program to affected employees;
d. Testing shall be conducted by a SAMHSA certified laboratory, pursuant to the provisions set forth in Paragraph 5 hereinabove.
e. Only two periodic tests may be performed in a twelve month period.
7. It is understood that the unsafe use of prescribed medication, or where the use of prescribed medication impairs the employee's ability to perform work, is a basis for the Employer to remove the employee from the jobsite.
8. Any grievance or dispute which may arise out of the application of this Agreement shall be subject to the grievance and arbitration procedures set forth in the CWA.
9. The establishment or operation of this Policy shall not curtail any right of any employee found in any law, rule or regulation. Should any part of this Agreement be found 46 City of Palm Springs CWA
55575. 18000W985938. 2
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unlawful by a court of competent jurisdiction or a public agency having jurisdiction over the parties, the remaining portions of the Agreement shall be unaffected and the parties shall enter negotiations to replace the affected provision.
10. Present employees, if tested positive, shall have the prerogative for rehabilitation program at the employee' s expense. When such program has been successfully completed the Employer shall not discriminate in any way against the employee. If work for which the employee is qualified exists he./she shall be reinstated.
11. The Employer agrees that results of urine and blood tests performed hereunder will be considered medical records held confidential to the extent permitted or required by law.
Such records shall not be released to any persons or entities other than designated Employer representatives and the applicable Union. Such release to the applicable Union shall only be allowed upon the signing of a written release and the information contained therein shall not be used to discourage the employment of the individual applicant or employee on any subsequent occasion.
12. The Employer shall indemnify and hold the Union harmless against any and all claims, demands, suits, or liabilities that may arise out of the application of this Agreement and/ or any program permitted hereunder.
13. Employees who seek voluntary assistance for substance abuse may not be disciplined for seeking such assistance. Requests from employees for such assistance shall remain confidential and shall not be revealed to other employees or management personnel without the employee' s consent. Employees enrolled in substance abuse programs shall be subject to all Employer rules, regulations and job performance standards with the understanding that an employee enrolled in such a program is receiving treatment for an illness.
14. This Memorandum, of Understanding shall constitute the only Agreement in effect between the parties concerning drug and alcohol abuse, prevention and testing. Any modifications thereto must be accomplished pursuant to collective bargaining negotiations between the parties.
47 City of Palm Springs CWA
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DRUG ABUSE PREVENTION AND DETECTION
APPENDIX A
CUTOFF LEVELS
SCREENING SCREENING CONFIRMATION CONFIRMATION
DRUG METHOD LEVEL ** METHOD LEVEL
Alcohol EMIT 0. 02% CG/ MS 0. 02%
Amphetamines EMIT 1000 ng/ m* CGIMS 500 ng/ ml*
Barbiturates EMIT 300 ng/ ml CG/ MS 200 ng/ml
Benzodiazepines EMIT 300 ng/ ml CG/ MS 300 ng/ ml
Cocaine EMIT 300 ng/ ml* CG/ MS 150 ng/ ml*
Methadone EMIT 300 ng/ ml CG/ MS 100 ng/ mI
Methaqualone EMIT 300 ng/ ml CG/ MS 300 ng/ ml
Opiates EMIT 2000 ng/ml* CGIMS 2000 ng/ ml*
PCP ( Phencyclidine) EMIT 25 ng/ml* CG/ MS 25 ng/ ml*
THC ( Marijuana) EMIT 50 ng/ ml* CG/ MS 15 ng/ ml*
Propoxyphene EMIT 300 ng/ ml CGIMS 100 ng/ mI
SAMHSA specified threshold
A sample reported positive contains the Indicated drug at or above the cutoff level for that drug. A negative sample either contains no drug or contains a drug below the cutoff level.
EMIT - Enzyme Immunoassay
CC/ MS - Gas Chromatography/ Mass Spectrometry
49 City of Palm Springs CWA
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SIDE LETTER OF AGREEMENT
TESTING POLICY FOR DRUG ABUSE
It is hereby agreed between the parties hereto that an Employer who has otherwise properly implemented drug testing, as set forth in the Testing Policy for Drug Abuse, shall have the right to offer an applicant or employee a " quick" drug screening test. This " quick" screen test shall consist either of the " ICUP" urine screen or similar test or an oral screen test. The applicant or employee shall have the absolute right to select either of the two " quick" screen tests, or to reject both and request a full drug test.
An applicant or employee who selects one of the quick screen tests, and who passes the test, shall be put to work immediately. An applicant or employee who fails the " quick" screen test, or who rejects the quick screen tests, shall be tested pursuant to the procedures set forth in the Testing Policy for Drug Abuse. The sample used for the " quick" screen test shall be discarded immediately upon conclusion of the test. An applicant or employee shall not be deprived of any rights granted to them by the Testing Policy for Drug Abuse as a result of any occurrence related to the " quick" screen test.
49 City of Palm Springs CWA
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Firing Range and Associated HVAC Renovations -9- 00 52 13 – CONTRACT FOR CONSTRUCTION 55575.18165\44349892.1
EXHIBIT “B”
LETTER OF ASSENT
To be signed by all contractors awarded work covered by the City of Palm Springs Community Workforce Agreement prior to commencing work.
[Contractor’s Letterhead]
CWA Administrator
City of Palm Springs
3200 E Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: David McAbee
Aaron Bergeson
Re: Community Workforce Agreement – Letter of Assent
Dear Sir/Madame:
This is to confirm that Action Target, Inc. agrees to be party to and bound by the City of Palm Springs Community Workforce Agreement effective , 2021 as such Agreement may, from time to time, be amended by the negotiating parties or interpreted pursuant to its terms. Such obligation to be a party and bound by this Agreement shall extend to all work covered by the agreement undertaken by this Contractor on the project and this Contractor shall require all of its contractors and subcontractors of whatever tier to be similarly bound for all work within the scope of the Agreement by signing and furnishing to you an identical letter of assent prior to their commencement of work.
Sincerely,
[Name of Construction Company]
By: [ ] Name and Title of Authorized Executive
Contractor State License No.:
Business Address:
Business Phone:
[Copies of this letter must be submitted to the CWA Administrator and to the Trades Council Consistent with Section 2.6 (b)]
END OF CONTRACT FOR CONSTRUCTION
J – Page 309 of 1899
Firing Range and Associated HVAC Renovations -10- 00 61 13 – BOND FORMS 55575.18165\44349892.1
00 61 13 – BOND FORMS
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the City of Palm Springs, with its principal place of business at 3200 E.
Tahquitz Canyon Way Palm Springs, California 92262, (hereinafter referred to as the “City”) has awarded to Action Target, Inc., (hereinafter referred to as the “Contractor”) an agreement for Contract No. 25S423, (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 13, 2025, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.
NOW, THEREFORE, we, the undersigned Contractor and
________________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of One-Million Four Hundred Fifty-Five thousand One Hundred Fifty-Five Dollars and Thirty-Eight Cents ($1,455,155.38), 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.
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 the 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.
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.
J – Page 310 of 1899
Firing Range and Associated HVAC Renovations -11- 00 61 13 – BOND FORMS 55575.18165\44349892.1
Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option:
i. Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
ii. Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
iii. Permit the City to complete the Project in any manner consistent with California law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.
Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the City, when declaring the Contractor in default, notifies Surety of the City’s objection to Contractor’s further participation in the completion of the Project.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
J – Page 311 of 1899
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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)
J – Page 312 of 1899
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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
NOTE: This acknowledgment is to be completed for Contractor/Principal.
J – Page 313 of 1899
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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
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
J – Page 314 of 1899
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PAYMENT BOND (LABOR AND MATERIALS).
KNOW ALL MEN BY THESE PRESENTS:
THAT WHEREAS, the City of Palm Springs, with its principal place of business at 3200 E.
Tahquitz Canyon Way Palm Springs, California 92262, (hereinafter designated as the “City”), has awarded to Action Target, Inc., (hereinafter designated as the “Principal”) an agreement for Contract No. 25S423, (hereinafter referred to as the “Project”); WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated November 13, 2025, (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 One-Million Four Hundred Fifty-Five thousand One Hundred Fifty-Five Dollars and Thirty-Eight Cents ($1,455,155.38) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Civil Code section 9100, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Revenue and Taxation Code Section 18663, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by the City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and investigation expenses.
This bond shall inure to the benefit of any of the persons named in Civil Code Section 9100 so as to give a right of action to such persons or their assigns in any suit brought upon this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of
J – Page 315 of 1899
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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
J – Page 316 of 1899
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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
NOTE: This acknowledgment is to be completed for Contractor/Principal.
J – Page 317 of 1899
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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
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
J – Page 318 of 1899
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00 72 00 – GENERAL CONDITIONS
ARTICLE 1 -TERMS; DEFINITIONS
1.1 Defined Terms.
A. Whenever used in the Contract Documents and printed with initial capital letters, the terms listed below will have the meanings indicated which are applicable to both the singular and plural thereof. In addition to terms specifically defined below, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms.
1. Act of God – An earthquake of magnitude of 3.5 or higher on the Richter scale or a tidal wave.
2. Addenda -- Written or graphic instruments issued prior to the submission of Bids which clarify, correct, or change the Contract Documents.
3. Additional Work -- New or unforeseen work will be classified as “Additional Work” when the Engineer determines that it is not covered by the Contract.
4. Applicable Laws -- The laws, statutes, ordinances, rules, codes, regulations, permits, and licenses of any kind, issued by local, state or federal governmental authorities or private authorities with jurisdiction (including utilities), to the extent they apply to the Work.
5. Bid -- The offer or proposal of a Bidder submitted on the prescribed form setting forth the prices and other terms for the Work to be performed.
6. Bid Security -- The bid bond, cashier’s check, or certified check to be made by the Bidder, which is to accompany the Bid as a guaranty of good faith to enter into a written contract.
7. Bidder -- The individual or entity who submits a Bid directly to the City.
8. Change Order (“CO”) -- A document that authorizes an addition, deletion, or revision in the Work or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Contract, in accordance with the Contract Documents and in the form contained in the Contract Documents.
9. Change Order Request (“COR”) -- A request made by the Contractor for an adjustment in the Contract Price and/or Contract Times as the result of a Contractor-claimed change to the Work.
10. Concurrent Delay – When the City-caused delay to the Critical Path occurs simultaneously with a Contractor-caused delay to the Critical Path.
11. Contract -- The entire integrated written agreement between the City and Contractor concerning the Work. “Contract” may be used interchangeably with “Agreement” in the Contract Documents. The Contract supersedes prior
J – Page 319 of 1899
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negotiations, representations, or agreements, whether written or oral, and includes all Contract Documents.
12. Contract Documents -- The documents listed in Section 00 52 13, Article 5 of the Contract for Construction. Some documents provided by the City to the Bidders and Contractor, including but not limited to reports and drawings of subsurface and physical conditions are not Contract Documents.
13. Contract Price -- Amount to be paid by the City to the Contractor as full compensation for the performance of the Contract and completion of the Work, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs.
14. Contract Time -- The number of days or the dates stated in the Contract Documents to: achieve defined milestones, if any; and to fully complete the Work.
15. Contractor -- The individual or entity with which the City has contracted for performance of the Work.
16. Critical Supply Shortage -- An unusual shortage in materials that is (a) supported by documented proof that Contractor made every effort to obtain such materials from all available sources; (b) such shortage is due to the fact that such materials are not physically available from single or multiple sources or could have been obtained only at exorbitant prices entirely inconsistent with current and standard rates taking into account the quantities involved and the usual industry practices in obtaining such quantities; and (c) such shortages and the difficulties in obtaining alternate sources of materials could not have been known or anticipated by Contractor at the time it submitted its bid or entered the Contract. Market fluctuations in prices of materials, whether or not resulting from a Force Majeure Event, does not constitute a Critical Supply Shortage.
17. Day -- A calendar day of 24 hours measured from midnight to the next midnight.
18. Defective Work -- Work that is unsatisfactory, faulty, or deficient; or that does not conform to the Contract Documents; or that does not meet the requirements of any inspection, reference standard, test, or approval referenced in the Contract Documents.
19. Drawings -- That part of the Contract Documents prepared by of the Engineer of Record which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings and other Contractor Submittals are not Drawings as so defined.
20. Effective Date of the Contract -- The date indicated in the Contract on which it becomes effective, but if no such date is indicated, it means the date on which the Contract is signed and delivered by the last of the two parties to sign and deliver.
21. Engineer -- Whenever not qualified, shall mean the City Engineer or the Engineer authorized to act for and in behalf of the City, acting either directly or through properly authorized agents, such agents acting severally within the scope of the particular duties entrusted to them.
J – Page 320 of 1899
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22. Engineer of Record -- The individual, partnership, corporation, joint venture, or other legal entity that prepares the Drawings.
23. Force Majeure Event -- An event that materially affects a party’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the Site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); (4) pandemics, epidemics or quarantine restrictions; (5) strikes and other organized labor action occurring at the Site and the effects thereof on the Work, only to the extent such strikes and other organized labor action are beyond the control of Contractor and its Subcontractors, of every tier, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (6) a Critical Supply Shortage. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.
24. Hazardous Waste -- The term “Hazardous Waste” shall have the meaning provided in Section 104 of the Solid Waste Disposal Act (42 U.S.C. § 6903) as amended from time to time, or any substance or material identified as hazardous under any state or federal statute governing handling, disposal and/or cleanup of any such substance or material, whichever is more restrictive.
25. Holiday – Holidays occur on:
New Year’s Day - January 1
Martin Luther King Day – Third Monday in January
President’s Day – Third Monday in February
Memorial Day - Last Monday in May
Independence Day - July 4
Labor Day - First Monday in September
Veteran’s Day - November 11
Thanksgiving Day - Fourth Thursday in November
Friday after Thanksgiving
Christmas Eve – December 24
Christmas Day - December 25
New Year’s Eve – December 31
If any Holiday listed above falls on a Saturday, Saturday and the preceding Friday are both Holidays. If the Holiday should fall on a Sunday, Sunday and the following Monday are both Holidays.
26. Notice of Award -- The written notice by the City to the successful Bidder stating that upon timely compliance by the successful Bidder with the conditions precedent listed therein, the City will sign and deliver the Contract.
27. Notice of Completion -- The form which may be executed by the City constituting final acceptance of the Project.
J – Page 321 of 1899
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28. Notice to Proceed -- A written notice given by the City to Contractor fixing the date on which the Contractor may proceed with the Work and when the Contract Time will commence to run.
29. Project -- The total construction of which the Work to be performed under the Contract Documents, may be the whole, or a part.
30. Record Drawings – The record set of as-builts prepared by the Contractor during the Work in accordance with the requirements of the General Conditions.
31. Recyclable Waste Materials -- Materials removed from the Site which are required to be diverted to a recycling center rather than an area landfill. Recyclable Waste Materials include, but are not limited to, asphalt, concrete, brick, concrete block, and rock.
32. Sample -- A physical example furnished by the Contractor to illustrate materials, equipment or workmanship; to establish standards by which the Work will be judged.
33. Schedule of Submittals -- A schedule, prepared and maintained by Contractor, of required submittals and the time requirements to facilitate scheduled performance of related construction activities.
34. Shop Drawings -- All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work.
35. Site -- Lands or areas indicated in the Contract Documents as being furnished by the City upon which the Work is to be performed, including rights-of-way and easements for access thereto, and such other lands furnished by the City which are designated for the use of Contractor.
36. Specifications -- That part of the Contract Documents consisting of written requirements for materials, equipment, systems, standards and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable thereto.
37. Subcontractor -- An individual or entity other than a Contractor having a contract with any other entity than the City for performance of any portion of the Work at the Site.
38. Submittal -- Written and graphic information and physical samples prepared and supplied by the Contractor demonstrating various portions of the Work.
39. Supplier -- A manufacturer, fabricator, supplier, distributor, material man, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment used in the performance of the Work or to be incorporated in the Work.
40. Underground Facilities -- All underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any
J – Page 322 of 1899
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encasements containing such facilities, including those that convey electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems.
41. Unit Price Work -- Work to be paid for on the basis of unit prices as provided by the Contractor in its Bid or as adjusted in accordance with the Contract Documents.
42. Warranty -- A guarantee provided to the City by the Contractor that the Work will remain free of defects and suitable for its intended use for the period required by the Contract Documents or the longest period permitted by the law of this state, whichever is longer.
43. Work -- The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents.
1.2 Terminology.
A. The words and terms below are not defined but, when used in the Contract Documents, have the indicated meaning.
1. The word “furnish,” when used in connection with services, materials, or equipment, shall mean to supply and deliver said services, materials, or equipment to the Site (or some other specified location) ready for use or installation and in usable or operable condition.
2. The word “install,” when used in connection with services, materials, or equipment, shall mean to put into use or place in final position said services, materials, or equipment complete and ready for intended use.
3. The words “perform” or “provide,” when used in connection with services, materials, or equipment, shall mean to furnish and install said services, materials, or equipment complete and ready for intended use.
4. Regardless of whether “furnish,” “install,” “perform,” or “provide” is used in connection with services, materials, or equipment, an obligation of Contractor is implied.
B. Unless stated otherwise in the Contract Documents, words or phrases that have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning.
J – Page 323 of 1899
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ARTICLE 2 -PRELIMINARY MATTERS
2.1 Delivery of Contract Documents.
A. Within ten (10) Days after receipt of the Notice of Award and before the City will execute the Contract, the Contractor shall furnish and file with the City a signed Contract and the necessary performance bond, payment bond, and certificates of insurance and endorsements, as well as any other documents specified in the Contract Documents.
2.2 Bonds.
A. Contractor shall submit the bonds on the forms provided with the Contract Documents, duly executed by a responsible corporate surety admitted to transact surety business in the State of California, as defined in Code of Civil Procedure section 995.120, and listed in the United States Department of the Treasury circular entitled "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies," authorized to do business in the State of California and acceptable to the City conditioned upon the faithful performance by the Contractor of all requirements of the Contract Documents. Each of the bonds shall be in a sum no less than one hundred percent (100%) of the Contract Price. Bonds shall be delivered to the City within ten (10) Days after receipt of the Notice of Award and before execution of the Contract by the City.
2.3 Evidence of Insurance.
A. Prior to commencing any Work but no later than ten (10) Days after receipt of the Notice of Award, the Contractor shall submit or cause to be submitted any and all certificates of insurance and endorsements, showing that the Contractor has the required insurance, to the attention of the City. Such insurance is to be provided at the sole cost and expense of the Contractor. No Work shall be performed until all of the required insurance has been received and approved.
2.4 Execution of the Contract.
A. Upon receipt of the required documents, the City will execute the Contract, establishing the Effective Date of the Contract.
2.5 Contractor’s Failure to Perform.
A. Should Contractor fail to comply with timelines provided above, the City shall retain the right to enforce and collect on the Contractor’s Bid Security, rescind award to the Contractor and award the Contract to the next lowest responsible Bidder providing a responsive Bid as determined by the City. If the City elects to accept bonds and insurance submitted late, the Contract Time will begin to run as of the date stated in the Notice to Proceed. However, the number of Days beyond the original ten (10) Days it took to receive the properly executed Contract and related items may be deducted from the Contract Time.
J – Page 324 of 1899
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2.6 Commencement of Contract Times; Notice to Proceed.
A. The City will not issue a Notice to Proceed until after the Effective Date of the Contract. Work shall commence within ten (10) Days of the date stated in the Notice to Proceed. The Contract Time begin to run on the date specified in the Notice to Proceed. No Work shall be done at the Site prior to the issuance of the Notice to Proceed.
2.7 Copies of Documents.
A. Contractor will be furnished, free of charge, five (5) copies of the Contract Documents. Additional copies may be obtained at cost of reproduction. Contractor shall maintain a clean, undamaged set of Contract Documents, including Submittals, at the Project site.
2.8 Substitution Requests, Schedule of Submittals, and Schedule.
A. Substitution Requests. Within thirty-five (35) Days of Contract award (unless otherwise specified in the Contract Documents), Contractor shall provide all substitution requests as further described in the General Conditions.
B. Schedule of Submittals. Within ten (10) Days after the issuance of the Notice of Proceed (unless otherwise specified in the Contract Documents), Contractor shall submit to the City a Schedule of Submittals that conforms with the requirements of the Contract Documents.
C. Schedule. Within ten (10) Days after the issuance of the Notice of Proceed (unless otherwise specified in the Contract Documents), the Contractor shall submit a construction schedule that conforms with the requirements of the Contract Documents.
2.9 Preconstruction Conference; Designation of Authorized Representatives.
A. Before any Work at the Site is started, a conference attended by the City, Contractor, Engineer, and others as appropriate will be held to establish a working understanding among the parties as to the Work and to discuss the schedules referred to herein, procedures for handling Submittals and Shop Drawings, processing applications for payment, and maintaining required records. At this conference the City and Contractor each shall designate, in writing, a specific individual to act as its authorized representative with respect to the services and responsibilities under the Contract. Such individuals shall have the authority to transmit instructions, receive information, render decisions relative to the Contract, and otherwise act on behalf of each respective party.
2.10 Subcontractor Mobilization Meeting.
A. Prior to the start of each major Subcontractor, the Contractor, Subcontractor, and Engineer shall attend a pre-start meeting to discuss the schedule, coordination, procedures, and other administrative issues.
J – Page 325 of 1899
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2.11 Mobilization.
A. When a bid item is included in the Bid Schedule for mobilization, the costs of Work in advance of construction operations and not directly attributable to any specific bid item will be included in the progress estimate. When no bid item is provided for mobilization payment for such costs will be deemed to be included in the other items of the Work.
B. Payment for mobilization based on the lump sum provided in the Bid Schedule, shall constitute full compensation for all such Work. The lump sum price provided for mobilization shall not be more than 5% of the Total Bid Price. No payment for mobilization will be made until all of the listed items have been completed to the satisfaction of the Engineer. The scope of the Work included under mobilization shall include, but shall not be limited to, the following principal items:
1. Obtaining and paying for all bonds, insurance, and permits.
2. Moving on to the Project Site of all Contractor’s plant and equipment required for the first month’s operations.
3. Installing temporary construction power, wiring, and lighting facilities, as applicable.
4. Establishing fire protection system, as applicable.
5. Developing and installing a construction water supply, as applicable.
6. Providing and maintaining the field office trailers for the Contractor, if necessary, and the Engineer, if specified, complete, with all specified furnishings and utility services.
7. Providing on-site sanitary facilities and potable water facilities as specified per CalOSHA and these Contract Documents.
8. Furnishing, installing, and maintaining all storage buildings or sheds required for temporary storage of products, equipment, or materials that have not yet been installed in the Work. All such storage shall meet manufacturer’s specified storage requirements, and the specific provisions of the specifications, including temperature and humidity control, if recommended by the manufacturer, and for all security.
9. Arranging for and erection of Contractor’s work and storage yard.
10. Posting all OSHA required notices and establishment of safety programs per CalOSHA.
11. Full-time presence of Contractor’s superintendent at the job Site as required herein.
12. Submittal of construction schedule, Submittals, and Shop Drawings as required by the Contract Documents.
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ARTICLE 3 -CONTRACT DOCUMENTS; INTENT
3.1 Examination of Drawings, Specifications, and Site of Work.
A. Examination of Contract Documents; Site. Before commencing any portion of the Work, Contractor shall again carefully examine all applicable Contract Documents, the Project Site, and other information given to Contractor as to materials and methods of construction and other Project requirements. Contractor shall immediately notify the Engineer of any potential error, inconsistency, ambiguity, conflict, or lack of detail or explanation. If Contractor performs, permits, or causes the performance of any Work which is in error, inconsistent or ambiguous, or not sufficiently detailed or explained, Contractor shall bear any and all resulting costs, including, without limitation, the cost of correction. In no case shall the Contractor or any Subcontractor proceed with Work if uncertain as to the applicable requirements.
B. Additional Instructions. After notification of any error, inconsistency, ambiguity, conflict, or lack of detail or explanation, the Engineer will provide any required additional instructions, by means of drawings or other written direction, necessary for proper execution of Work.
C. Quality of Parts, Construction and Finish. All parts of the Work shall be of the best quality of their respective kinds and the Contractor must use all diligence to inform itself fully as to the required construction and finish.
D. Contractor’s Variation from Contract Document Requirements. If it is found that the Contractor has varied from the requirements of the Contract Documents including the requirement to comply with all Applicable Laws, the Engineer may at any time, before or after completion of the Work, order the improper Work removed, remade or replaced by the Contractor at the Contractor’s expense.
3.2 Intent of Contract Documents.
A. The Contract Documents are complementary; what is required by any one will be binding as if required by all. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be constructed in accordance with the Contract Documents. Any labor, documentation, services, materials, or equipment that reasonably may be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the indicated result will be provided whether or not specifically called for, at no additional cost to the City.
B. The Contractor shall furnish, unless otherwise provided in the Contract Documents, all materials, implements, machinery, equipment, tools, supplies and labor necessary to the prosecution and completion of the Project. If utilities to equipment/fixtures are not shown but are necessary to operate the equipment/fixtures, the utilities service installation is considered to be part of the Work. The implied Work will conform to the appropriate sections of the Contract Documents.
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C. Organization of the Contract Documents into divisions, sections, and articles, and arrangement of drawings shall not control the Contractor in dividing Work among Subcontractors or in establishing the extent of Work to be performed by any trade.
D. Clarifications and interpretations of the Contract Documents shall be issued by the Engineer as provided in these General Conditions.
3.3 Reference Standards.
A. Standards, Specifications, Codes, Laws, and Regulations.
1. Reference to federal specifications, federal standards, other standards, specifications, manuals, or codes of any technical society, organization, or association, or to Applicable Laws, whether such reference be specific or by implication, shall mean the standard, specification, manual, code, or Applicable Laws in effect at the time of opening of Bids (or on the Effective Date of the Contract if there were no Bids), except as may be otherwise specifically stated in the Contract Documents.
2. No provision of any such standard, specification, manual, or code, or any instruction of a Supplier, shall be effective to change the duties or responsibilities of the City, Contractor, or any of their Subcontractors, consultants, agents, or employees, from those set forth in the Contract Documents. No such provision or instruction shall be effective to assign to the City, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors, any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents.
3.4 Reporting and Resolving Discrepancies; Order of Precedence.
A. Reporting Discrepancies. The Contract Documents are intended to be fully cooperative and complementary. Before undertaking each part of the Work, Contractor shall carefully study and compare the Contract Documents and check and verify pertinent figures therein and all applicable field measurements.
Contractor shall promptly report in writing to the City any conflict, error, ambiguity, or discrepancy which Contractor discovers, should have discovered, or has actual knowledge of, and shall obtain a written interpretation or clarification from the City before proceeding with any Work affected thereby. If, during the performance of the Work, Contractor discovers any conflict, error, ambiguity, or discrepancy within the Contract Documents, or between the Contract Documents and (i) any Applicable Law, (ii) any standard, specification, manual, or code, or (iii) any instruction of any Supplier, then Contractor shall promptly submit a written Request for Information (RFI) to the City. Contractor shall not proceed with the Work affected thereby (except in an emergency) until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in the Contract Documents, and any Work performed by Contractor before receipt of an amendment or supplement shall be at Contractor’s own risk.
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B. Order of Precedence.
1. In case of conflicts between the Contract Documents, the order of precedence shall be as follows:
a. Permits from other agencies as may be required by law b. Change Orders, most recent first
c. Contract
d. Addenda, most recent first
e. Special Conditions
f. Specifications
g. Construction Plans and Drawings(Drawings)
h. General Conditions
i. Contractor’s Bid (Bid Forms)
j. Standard Specifications for Public Works Construction “Greenbook” latest edition (Sections 1-9 Excluded)
k. Applicable Local Agency Standards and Specifications l. Standard Drawings
m. Reference Documents
2. With reference to the drawings the order of precedence shall be as follows:
a. Figures govern over scaled dimensions
b. Detail drawings govern over general drawings
c. Addenda/Change Order drawings govern over Drawings
d. Drawings govern over Standard Drawings
e. Drawings govern over Shop Drawings
3. Notwithstanding the orders of precedence established above, in the event of conflicts, the higher standard, higher quality and most expensive shall always apply.
3.5 Amending and Supplementing Contract Documents.
A. The Contract Documents may be amended to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof only by Change Order or written amendment to the Contract duly executed by the parties.
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B. The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized at no cost to the City, by one or more of the following ways:
1. The City’s review of a Submittal, Shop Drawing, Sample or substitution request without exception (subject to the provisions of the Contract Documents); or
2. The City’s issuance of a response to an RFI.
C. However, no review or RFI response will reduce or modify the Contractor’s obligation to fully satisfy and comply with the requirements of the Contract Documents.
3.6 Reuse of Documents.
A. Contractor and any Subcontractor or Supplier shall not:
1. Have or acquire any title to or ownership rights in any of the Drawings, Specifications, or other documents (or copies of any thereof) prepared by or bearing the seal of Engineer of Record or its consultants, including electronic media editions; or
2. Reuse any such Drawings, Specifications, other documents, or copies thereof on extensions of the Project or any other project without written consent of the City and Engineer of Record and specific written verification or adaptation by Engineer of Record.
B. The prohibitions of this Article will survive final payment or termination of the Contract. Nothing herein shall preclude Contractor from retaining copies of the Contract Documents for record purposes.
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ARTICLE 4 -INDEMNIFICATION; INSURANCE
4.1 Indemnification.
A. To the fullest extent permitted by law, Contractor shall immediately defend (with counsel of the City’s choosing), indemnify and hold harmless the City, its officials, officers, employees, agents, and authorized volunteers, and each of them from and against:
1. Any and all claims, demands, causes of action, costs, expenses, injuries, losses or liabilities, in law or in equity, of every kind or nature whatsoever, but not limited to, injury to or death, including wrongful death, of any person, and damages to or destruction of property of any person, arising out of, related to, or in any manner directly or indirectly connected with the Work or this Contract, including claims made by subcontractors for nonpayment, including without limitation the payment of all consequential damages and attorney’s fees and other related costs and expenses, however caused, regardless of whether the allegations are false, fraudulent, or groundless, and regardless of any negligence of the City or its officials, officers, employees, agents, or authorized volunteers (including passive negligence), except such loss or damages caused by the sole negligence or willful misconduct or active negligence of the City or its officials, officers, employees, or authorized volunteers.
2. Contractor’s defense and indemnity obligation herein includes, but is not limited to damages, fines, penalties, attorney’s fees and costs arising from claims under the Americans with Disabilities Act (ADA) or other federal or state disability access or discrimination laws arising from Contractor’s Work during the course of construction of the improvements or after the Work is complete, as the result of defects or negligence in Contractor’s construction of the improvements.
3. Any and all actions, proceedings, damages, costs, expenses, fines, penalties or liabilities, in law or equity, of every kind or nature whatsoever, arising out of, resulting from, or on account of the violation of any governmental law or regulation, compliance with which is the responsibility of Contractor.
4. Any and all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense which any of them may incur with respect to the failure, neglect, or refusal of Contractor to faithfully perform the Work and all of Contractor’s obligations under Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees, incurred by the indemnified parties in any lawsuit to which they are a party.
B. Contractor shall immediately defend, at Contractor’s own cost, expense and risk, with the counsel of the City choosing, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City or its officials, officers, employees, agents, or authorized volunteers. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against the City or its officials, officers, employees, agents, or authorized volunteers, in any such suit, action or other legal proceeding. Contractor shall reimburse the City and its officials, officers, employees, agents, and authorized volunteers for any and all legal expenses and costs incurred by each of them in connection therewith or in
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enforcing the indemnity herein provided. The only limitations on this provision shall be those imposed by Civil Code section 2782.
C. The provisions of this Article shall survive the termination of this Contract howsoever caused, and no payment, partial payment, or acceptance of occupancy in whole or part of the Work shall waive or release any of the provisions of this Article.
Contractor’s obligation to indemnify the City shall not be restricted to insurance proceeds, if any, received by the City and its officials, officers, employees, agents, and authorized volunteers.
4.2 Insurance.
A. General Requirements. The Contractor shall obtain, and at all times during performance of the Work of Contract, maintain all of the insurance described in this Article. Contractor shall not commence Work under this Contract until it has provided evidence satisfactory to the City that it has secured all insurance required hereunder.
Contractor shall not allow any Subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Article. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Contract for cause.
Contractor shall furnish the City with original certificates of insurance and endorsements effective coverage required by this Contract on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms acceptable to the City. All certificates and endorsements must be received and approved by the City before Work commences.
B. Additional Insureds; Waiver of Subrogation. The City, its officials, officers, employees, agents and authorized volunteers shall be named as Additional Insureds on Contractor’s All Risk policy and on Contractor’s and its Subcontractors’ policies of Commercial General Liability and Automobile Liability insurance using, for Contractor’s policy/ies of Commercial General Liability insurance, ISO CG forms 20 10 and 20 37 (or endorsements providing the exact same coverage, including completed operations), and, for Subcontractors’ policies of Commercial General Liability insurance, ISO CG form 20 38 (or endorsements providing the exact same coverage). Notwithstanding the minimum limits set forth in this Contract for any type of insurance coverage, all available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as Additional Insureds hereunder. All insurance coverage maintained or procured pursuant to this Contract shall be endorsed to waive subrogation against the City, its officers, officials, agents, employees or volunteers or shall specifically allow Contractor - or others providing insurance evidence in compliance with these specifications - to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against the City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. Copies of these waivers shall be submitted to the City prior to commencement of work.
C. Workers’ Compensation Insurance. The Contractor shall provide workers’ compensation insurance for all of the employees engaged in Work under this Contract, on or at the Site, and, in case of any sublet Work, the Contractor shall require the subcontractor similarly to provide workers’ compensation insurance for
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all the latter’s employees as prescribed by State law. Any class of employee or employees not covered by a subcontractor’s insurance shall be covered by the Contractor’s insurance. In case any class of employees engaged in work under this Contract, on or at the Site, is not protected under the Workers’ Compensation Statutes, the Contractor shall provide or shall cause a subcontractor to provide, adequate insurance coverage for the protection of such employees not otherwise protected. The Contractor is required to secure payment of compensation to his employees in accordance with the provisions of section 3700 of the Labor Code.
The Contractor shall file with the City certificates of his insurance protecting workers.
Company or companies providing insurance coverage shall be acceptable to the City, if in the form and coverage as set forth in the Contract Documents.
D. Employer’s Liability Insurance. Contractor shall provide Employer’s Liability Insurance, including Occupational Disease, in the amount of at least one million dollars ($1,000,000.00) per person per accident. Contractor shall provide the City with a certificate of Employer’s Liability Insurance. Such insurance shall comply with the provisions of the Contract Documents. The policy shall be endorsed, if applicable, to provide a Borrowed Servant/Alternate Employer Endorsement and contain a Waiver of Subrogation in favor of the City.
E. Commercial General Liability Insurance. Contractor shall provide “occurrence” form Commercial General Liability insurance coverage at least as broad as the most current ISO CGL Form 00 01, including but not limited to, premises liability, contractual liability, products/completed operations, personal and advertising injury which may arise from or out of Contractor’s operations, use, and management of the Site, or the performance of its obligations hereunder. The policy shall not contain any exclusion contrary to this Contract including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 39); or (2) cross-liability for claims or suits against one insured against another. Policy limits shall not be less than $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. Defense costs shall be paid in addition to the limits.
1. Such policy shall comply with all the requirements of this Article. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Contractor from liability in excess of such coverage, nor shall it limit Contractor’s indemnification obligations to the City, and shall not preclude the City from taking such other actions available to the City under other provisions of the Contract Documents or law.
2. All general liability policies provided pursuant to the provisions of this Article shall comply with the provisions of the Contract Documents.
3. All general liability policies shall be written to apply to all bodily injury, including death, property damage, personal injury, owned and non-owned equipment, blanket contractual liability, completed operations liability, explosion, collapse, under-ground excavation, removal of lateral support, and other covered loss,
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however occasioned, occurring during the policy term, and shall specifically insure the performance by Contractor of that part of the indemnification contained in these General Conditions relating to liability for injury to or death of persons and damage to property.
4. If the coverage contains one or more aggregate limits, a minimum of 50% of any such aggregate limit must remain available at all times; if over 50% of any aggregate limit has been paid or reserved, the City may require additional coverage to be purchased by Contractor to restore the required limits. Contractor may combine primary, umbrella, and as broad as possible excess liability coverage to achieve the total limits indicated above. Any umbrella or excess liability policy shall include the additional insured endorsement described in the Contract Documents.
5. All policies of general liability insurance shall permit and Contractor does hereby waive any right of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss.
F. Automobile Liability Insurance. Contractor shall provide Automobile Liability Insurance at least as broad as ISO CA 00 01 (Any Auto) in the amount of, at least, one million dollars ($1,000,000) per accident for bodily injury and property damage.
Such insurance shall provide coverage with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Contractor or for which Contractor is responsible, in a form and with insurance companies acceptable to the City. All policies of automobile insurance shall permit and Contractor does hereby waive any right of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss.
G. Builder’s Risk [“All Risk”].
1. It is the Contractor’s responsibility to maintain or cause to be maintained Builder’s Risk [“All Risk”] extended coverage insurance on all work, material, equipment, appliances, tools, and structures that are or will become part of the Work and subject to loss or damage by fire, and vandalism and malicious mischief, in an amount to cover 100% of the replacement cost. The City accepts no responsibility for the Work until the Work is formally accepted by the City. The Contractor shall provide a certificate evidencing this coverage before commencing performance of the Work.
2. The named insureds shall be Contractor, all Subcontractors of any tier (excluding those solely responsible for design work), Suppliers, and the City, its elected officials, officers, employees, agents and authorized volunteers, as their interests may appear. Contractor shall not be required to maintain property insurance for any portion of the Work following acceptance by the City.
3. Policy shall be provided for replacement value on an “all risk” basis. There shall be no coinsurance penalty provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, nonconforming work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring
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the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) transit coverage, including ocean marine coverage (unless insured by the supplier), with sub-limits sufficient to insure the full replacement value of any key equipment item; and (5) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site. Such insurance shall be on a form acceptable to the City to ensure adequacy and sublimit.
4. In addition, the policy shall meet the following requirements:
a. Insurance policies shall be so conditioned as to cover the performance of any extra work performed under the Contract.
b. Coverage shall include all materials stored on site and in transit. c. Coverage shall include Contractor’s tools and equipment. d. Insurance shall include boiler, machinery and material hoist coverage.
H. Professional Liability Insurance. All architects, engineers, consultants or design professionals retained by Contractor shall also procure and maintain, for a period of five (5) years following completion of the Contract, errors and omissions liability insurance with a limit of not less than $1,000,000 per occurrence. This insurance shall name the City, its directors, officials, officers, employees, agents and volunteers as additional and insureds with respect to Work performed, and shall otherwise comply with all requirements of this Section. Defense costs shall be paid in addition to the limits.
I. Contractor’s Pollution Liability Coverage. 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.
J. Contractor shall require all tiers of Subcontractors working under this Contract to provide the insurance required under this Article unless otherwise agreed to in writing by the City. Contractor shall make certain that any and all Subcontractors hired by Contractor are insured in accordance with this Contract. If any Subcontractor’s coverage does not comply with the foregoing provisions, Contractor shall indemnify and hold the City harmless from any damage, loss, cost, or expense, including attorneys’ fees, incurred by the City as a result thereof.
K. Notwithstanding the minimum limits set forth in this Contract for any type of insurance coverage, if Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
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L. Form and Proof of Carriage of Insurance.
1. Any insurance carrier providing insurance coverage required by the Contract Documents shall be admitted to and authorized to do business in the State of California unless waived, in writing, by the City’s Risk Manager. Carrier(s) shall have an A.M. Best rating of not less than an A:VII. Insurance deductibles or selfinsured retentions must be declared by the Contractor. At the election of the City the Contractor shall either 1) reduce or eliminate such deductibles or self-insured retentions, or 2) procure a bond which guarantees payment of losses and related investigations, claims administration, and defense costs and expenses. If umbrella or excess liability coverage is used to meet any required limit(s) specified herein, the Contractor shall provide a “follow form” endorsement satisfactory to the City indicating that such coverage is subject to the same terms and conditions as the underlying liability policy.
2. Each insurance policy required by this Contract shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced or cancelled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its officials, officers, agents, employees, and volunteers.
3. The Certificates(s) and policies of insurance shall contain or shall be endorsed to contain the covenant of the insurance carrier(s) that it shall provide no less than thirty (30) days written notice be given to the City prior to any material modification or cancellation of such insurance. In the event of a material modification or cancellation of coverage, the City may terminate the Contract or stop the Work in accordance with the Contract Documents, unless the City receives, prior to such effective date, another properly executed original Certificate of Insurance and original copies of endorsements or certified original policies, including all endorsements and attachments thereto evidencing coverage’s set forth herein and the insurance required herein is in full force and effect. Contractor shall not take possession, or use the Site, or commence operations under this Contract until the City has been furnished original Certificate(s) of Insurance and certified original copies of endorsements or policies of insurance including all endorsements and any and all other attachments as required in this Article. The original endorsements for each policy and the Certificate of Insurance shall be signed by an individual authorized by the insurance carrier to do so on its behalf.
4. The Certificate(s) of Insurance, policies and endorsements shall so covenant and shall be construed as primary, and the City’s insurance and/or deductibles and/or self-insured retentions or self-insured programs shall not be construed as contributory.
5. The City reserves the right to adjust the monetary limits and types of insurance coverages during the term of this Contract including any extension thereof if, in the City’s reasonable judgment, the amount or type of insurance carried by the Contractor becomes inadequate.
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6. Contractor shall report to the City, in addition to the Contractor’s insurer, any and all insurance claims submitted by the Contractor in connection with the Work under this Contract.
7. Products/completed operations coverage shall extend a minimum of three years after the project completion. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors, the policy must include work performed “by or on behalf” of the insured. Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer. The City, its officers, officials, agents employees, and volunteers shall be included as insureds under the policy.
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ARTICLE 5 -CONTRACTOR RESPONSIBILITIES; REGULATORY REQUIREMENTS
5.1 Applicable Laws.
A. Contractor shall give all notices required by and shall comply with all Applicable Laws applicable to the performance of the Work. Except where otherwise expressly required by Applicable Laws, neither the City nor the Engineer shall be responsible for monitoring Contractor’s compliance with any Applicable Laws. If Contractor performs any Work knowing or having reason to know that it is contrary to Applicable Laws, Contractor shall bear all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such Work.
5.2 Permits and Licenses.
A. City will apply and pay for the review of necessary encroachment permits for Work within the public rights-of-way. All other necessary permits and licenses necessary for prosecution of the Work shall be secured and paid for by Contractor, including, but not limited to, permits, licenses and fees required by agencies with authority in the jurisdiction in which the Work will be located, unless otherwise expressly provided by the Contract Documents. The Contractor shall arrange and pay for all off-site inspection of the Work related to permits and licenses, including certification, required by the Contract Documents or by governing authorities, except for such offsite inspections delineated as the City’s responsibility pursuant to the Contract Documents. Before acceptance of the Work, the Contractor shall submit all licenses, permits, certificates of inspection and required approvals to the City.
5.3 Taxes.
A. Contractor shall pay all sales, consumer, use, and other similar taxes required to be paid in accordance with the Applicable Laws of the place of the Project which are applicable during the performance of the Work. In accordance with Revenue and Taxation Code section 107.6, the Contract Documents may create a possessory interest subject to personal property taxation for which Contractor will be responsible.
5.4 Traffic Control.
A. Traffic control plans, if required, shall be prepared at Contractor’s expense. Traffic control shall be performed at Contractor’s expense in accordance with the requirements of the City and/or the local agency with jurisdiction. Costs for traffic control plans, implementation of traffic control, or traffic signal services required by the City shall be included in the Contractor’s Bid.
B. All warning signs and safety devices used by the Contractor to perform the Work shall conform to the requirements contained in the State of California, Department of Transportation’s current edition of “Manual of Traffic Controls for Construction and Maintenance Work Zones” or to the requirements of the local agency. The Contractor shall also be responsible for all traffic control required by the agency having jurisdiction over the Project on the intersecting streets. Contractor must submit a
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traffic control plan to the agency having jurisdiction over the Project for approval prior to starting Work.
C. The Contractor’s representative on the Site responsible for traffic control shall produce evidence that he or she has completed training acceptable to the California Department of Transportation for safety through construction zones. All of the streets in which the Work will occur shall remain open to traffic and one lane of traffic maintained at all times unless otherwise directed by the agency of jurisdiction.
Businesses and residences adjacent to the Work shall be notified forty-eight (48) hours in advance of closing of driveways. The Contractor shall make every effort to minimize the amount of public parking temporarily eliminated due to construction in areas fronting businesses. No stockpiles of material will be allowed in traveled rightof-ways after working hours unless otherwise approved by the Engineer.
5.5 Safety.
A. Contractor shall be solely responsible for all safety precautions and programs in connection with the Work. Such responsibility does not relieve Subcontractors of their responsibility for the safety of persons or property in the performance of their work, nor for compliance with applicable safety laws. Contractor shall comply with all Applicable Laws relating to the safety of persons or property, or to the protection of persons or property from damage, injury, or loss; and shall erect and maintain all necessary safeguards for such safety and protection. Contractor shall notify owners of adjacent property and of Underground Facilities and other utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation, and replacement of their property. Contractor shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Applicable Laws.
B. The Contractor shall maintain emergency first aid treatment for his employees which complies with the Federal Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.), and California Code of Regulations, Title 8, Industrial Relations Division 1, Department of Industrial Relations, Chapter 4. The Contractor shall ensure the availability of emergency medical services for its employees in accordance with California Code of Regulations, Title 8, Section 1512. The Contractor shall submit an Illness and Injury Prevention Program and a Project Site specific safety program to the City prior to beginning Work. Contractor shall maintain a confined space program that meets or exceeds the City’s standards. Contractor needs to make themselves aware of the City’s safety policies and procedures, and shall meet or exceed all City standards in areas where the City must enter to perform inspections.
5.6 Hazardous Waste.
A. The City shall not be responsible for any Hazardous Waste brought to the site by the Contractor. If the Contractor: (i) introduces and/or discharges a Hazardous Waste onto the site in a manner not specified by the Contract Documents; and/or (ii) disturbs a Hazardous Material identified in the Contract Documents, the Contractor shall hire a qualified remediation contractor at Contractor’s sole cost to eliminate the condition as soon as possible. Under no circumstance shall the Contractor perform
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Work for which it is not qualified. The City, in its sole discretion, may require the Contractor to retain at Contractor’s cost an independent testing laboratory.
B. If the Contractor encounters Hazardous Waste which may cause foreseeable injury or damage, Contractor shall immediately: (i) secure or otherwise isolate such condition; (ii) stop all Work in connection with such material or substance (except in an emergency situation); and (iii) notify the City (and promptly thereafter confirm such notice in writing). The City shall contract for any services required to directly remove and/or abate Hazardous Waste, if required, and shall not require the Contractor to subcontract for such services. The Work in the affected area shall not thereafter be resumed except by written agreement of the City and Contractor.
C. Contractor shall indemnify and hold harmless the City from and against claims, damages, losses and expenses, arising from a Hazardous Waste on the Project Site, if such Hazardous Waste exceeded OSHA Permissible Exposure Levels or levels which would classify the material as a state of California or federal hazardous waste, and was either i) shown on the Contract Documents or information available to bidders; or (ii) brought to the site by Contractor. Nothing in this paragraph shall obligate the Contractor to indemnify the City in the event of the sole or active negligence or willful misconduct of the City, its officers, agents, or employees.
5.7 Sanitary Facilities.
A. Contractor shall provide sanitary temporary toilet buildings and hand washing facilities for the use of all workers. All toilets and hand washing facilities shall comply with Applicable Laws. Toilets shall be placed inside sealed secondary containment devices installed on a flat, level surface. Accumulated liquids in the secondary containment devices shall be properly removed and legally disposed without spillage onto the ground. Toilets shall be kept supplied with toilet paper and shall have workable door fasteners. Toilets and hand washing facilities shall be serviced no less than once weekly and shall be present in a quantity of not less than 1 per 20 workers as required by Cal/OSHA regulations. The toilets and hand washing facilities shall be maintained in a sanitary condition at all times. Use of toilet and hand washing facilities in the Work under construction shall not be permitted. Any other sanitary facilities required by Cal/OSHA shall be the responsibility of the Contractor.
5.8 Dust Control.
A. Contractor, at its expense, shall maintain all excavations, embankments, haul roads, permanent access roads, plant sites, waste disposal areas, borrow areas, and all other work areas free from dust. Industry accepted methods of dust control suitable for the area involved, such as sprinkling, chemical treatment, light bituminous treatment or similar methods, will be permitted.
5.9 Air Pollution Control.
A. Contractor shall comply with all air pollution control rules, regulations, ordinances and statutes. All containers of paint, thinner, curing compound, solvent or liquid asphalt shall be labeled to indicate that the contents fully comply with the applicable material requirements.
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B. Without limiting the foregoing, Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the Air Quality Management District with jurisdiction over the Project and/or California Air Resources Board (CARB). Contractor shall specifically be aware of the application of these limits and requirements to "portable equipment", which definition includes any item of equipment with a fuel-powered engine. Contractor shall indemnify the City against any fines or penalties imposed by the air quality management district, CARB, or any other governmental or regulatory agency for its violations of Applicable Laws as well as those of its Subcontractors or others for whom Contractor is responsible under its indemnity obligations provided for in the Contract Documents.
5.10 Water Quality Management and Compliance.
A. Storm, surface, ground, nuisance, or other waters may be encountered at various times during construction of the Work. The Contractor hereby acknowledges that it has investigated the risk arising from such waters, has prepared its Bid accordingly, and assumes any and all risks and liabilities arising therefrom.
B. Contractor shall keep itself and all Subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Work including, without limitation, all applicable provisions regulating discharges of storm water; the Federal Water Pollution Control Act (33 U.S.C. § 13000 et seq.); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000- 14950); and any and all regulations, policies, or permits issued pursuant to any such authority. These include, but are not limited to California State Water Resources Control Board Order Number 2009-0009-DWQ (NPDES Permit No. CAS000002), as amended by Order Numbers 2010-0014-DWQ, 2012-0006-DWQ, and any subsequent amendment to or renewal thereof, State Water Resources Control Board Order No. 2013-0001-DWQ (NPDES Order No. CAS000004), Santa Ana Regional Water Quality Control Board No. R8-2010-0036 (NPDES No. CAS618036), and any amendment or renewal thereof.
C. Contractor shall comply with all conditions of the State Water Resources Control Board National Pollutant Discharge Elimination System General Permit for Waste Discharge Requirements for Discharges of Storm Water Runoff Associated with Construction Activity (“Construction General Permit”) for all construction activity which results in the disturbance of in excess of one acre of total land area or which is part of a larger common area of development or sale. Contractor shall comply with the lawful requirements of the City, and any other applicable municipality, drainage district, or other local agency with jurisdiction over the location where the Work is to be conducted, regarding discharges of storm water to separate storm drain systems or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.
D. Failure to comply with the Construction General Permit, laws, regulations, and ordinances listed in this Article is a violation of federal and state law.
Notwithstanding any other indemnity contained in these Contract Documents, Contractor agrees to indemnify and hold harmless the City, its officials, officers,
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agents, employees and authorized volunteers from and against any and all claims, demands, fees, costs, expenses, or losses or liabilities of any kind or nature which the City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for noncompliance with the Construction General Permit, laws, regulations, and ordinances listed above, arising out of or in connection with the Work, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. The City reserves the right to defend any enforcement action or civil action brought against the City for Contractor’s failure to comply with any applicable water quality law, regulation, or policy. Contractor hereby agrees to be bound by, and to reimburse the City for the costs associated with, any settlement reached between the City and any relevant enforcement entity.
5.11 Environmental Quality Protection.
A. The Contractor shall comply with all requirements of applicable federal, state, and local environmental rules and regulations. Any infractions of said rules and regulations by the Contractor during the term of the Contract, which result in penalties, will be the responsibility of the Contractor. The City operates under a number of environmental permits issued by various agencies. If due to an action, inaction, or negligence by the Contractor, the City becomes subject to noncompliance penalties, the cost of such penalties shall be borne by the Contractor.
B. The Contractor shall exercise care to preserve the natural landscape and vegetation, and shall conduct operations so as to prevent unnecessary destruction, scarring, or defacing of the natural surroundings in the vicinity of the Work.
Movement of crews and equipment within the rights-of-way and over routes provided for access to the Work shall be performed in a manner to prevent damage to property. When no longer required, construction roads shall be restored to original contours. Upon completion of the Work, and following removal of construction facilities and required cleanup, land used for construction purposes and not required for the completed installation shall be scarified and regraded, as required, so that all surfaces are left in a condition that will facilitate natural revegetation, provide for proper drainage, and prevent erosion.
C. If, in the performance of the Work, evidence of the possible occurrence of any Federally listed threatened or endangered plant or animal is discovered, the Contractor shall notify the City immediately, giving the location and nature of the findings. Written confirmation of the evidence, location and nature of the findings shall be forwarded to City within two (2) Days. The Contractor shall immediately cease all construction activities in the immediate area of the discovery to the extent necessary to protect the endangered plant or animal. If directed by the City, Contractor will refrain from working in the immediate area, suspend the Work in its entirety, or alter its performance to ensure full compliance with all applicable permits, laws and regulations. Any City directed changes to the Work as a result of a siting will be pursuant to the Contract Documents. Any costs or delays incurred by City or the Contractor due to unreasonable or false notification of an endangered plant or animal will be borne by the Contractor.
D. If, in the performance of the Work, Contractor should unearth cultural resources (for example, human remains, animal bones, stone tools, artifacts and/or midden
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deposits) through excavation, grading, watering or other means, the Contractor shall notify the construction/archeological monitor and/or the City immediately, giving the location and nature of the findings. Written confirmation of the evidence, location and nature of the findings shall be forwarded to the construction/archeological monitor and/or City within two (2) Days. Contractor shall immediately cease all construction activities in the immediate area of the discovery to the extent necessary to protect the cultural resource. If directed by the City, Contractor will refrain from working in the immediate area, suspend the Work in its entirety, or re-sequence and/or alter its performance to ensure full compliance with all applicable permits, laws and regulations. Should the presence of cultural resources be confirmed, the Contractor will assist the City and the construction/archeological monitor in the preparation and implementation of a data recovery plan. The Contractor shall provide such cooperation and assistance as may be necessary to preserve the cultural resources for removal or other disposition. Any City directed changes to the Work as a result of the cultural resource will be pursuant to the Contract Documents.
Should Contractor, without permission, injure, destroy, excavate, appropriate, or remove any cultural resource on or adjacent to the Site, it will be subject to disciplinary action, arrest and penalty under applicable law. Contractor shall be principally responsible for all costs of mitigation and/or restoration of cultural resources related to the unauthorized actions identified above. Contractor shall be required to pay for unauthorized damage and mitigation costs to cultural resources (historical and archeological resources) as a result of unauthorized activities that damage cultural resources and shall indemnify City pursuant to the Contract Documents.
5.12 Noise Restrictions.
A. Contractor shall use only such equipment on the Work and in such state of repair so that the emission of sound therefrom is within the noise tolerance level of that equipment as established by Cal/OSHA. Contractor shall comply with the most restrictive of the following: (1) local sound control and noise level rules, regulations and ordinances and (2) the requirements contained in these Contract Documents, including hours of operation requirements. No internal combustion engine shall be operated on the Project without a muffler of the type recommended by the manufacturer. Should any muffler or other control device sustain damage or be determined to be ineffective or defective, the Contractor shall promptly remove the equipment and shall not return said equipment to the job until the device is repaired or replaced. Said noise and vibration level requirements shall apply to all equipment on the job or related to the job, including but not limited to, trucks, transit mixers or transit equipment that may or may not be owned by the Contractor.
5.13 Diversion of Recyclable Waste Material.
A. In compliance with the applicable City’s waste reduction and recycling efforts, Contractor shall divert all Recyclable Waste Materials to appropriate recycling centers as required for compliance with the local jurisdiction’s waste diversion ordinances. Contractor will be required to submit weight tickets and written proof of diversion with its monthly progress payment requests. Contractor shall complete and execute any certification forms required by the City or other applicable agencies to document Contractor’s compliance with these diversion requirements. All costs incurred for these waste diversion efforts shall be the responsibility of the Contractor.
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5.14 Workers; Contractor’s Supervision.
A. Contractor shall be an independent contractor for the City and not an employee.
Contractor understands and agrees that it and all of its employees shall not be considered officers, employees, or agents of the City and are not entitled to benefits of any kind normally provided employees of the City, including but not limited to, state unemployment compensation or workers’ compensation. Contractor assumes full responsibility for the acts and omissions of its employees or agents related to the Work.
B. By executing the Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all Subcontractors, sub-subcontractors and consultants to comply with the same. Each person executing this Contract on behalf of Contractor verifies that he or she is a duly authorized officer of Contractor and that any of the following shall be grounds for the City to terminate the Contract for cause: (1) failure of the Contractor or its Subcontractors, sub-subcontractors or consultants to meet any of the requirements provided for in this Article; (2) any misrepresentation or material omission concerning compliance with such requirements; or (3) failure to immediately remove from the Work any person found not to be in compliance with such requirements.
C. Contractor shall at all times enforce strict discipline and good order among its employees. Contractor shall not employ on the Project any unfit person or any one not skilled in the Work assigned to him or her. Any person in the employ of the Contractor whom the City may deem incompetent or unfit shall be dismissed from the Work and shall not be employed on this Project.
D. Contractor shall continuously keep at the Project site, a competent and experienced full-time Project superintendent acceptable to the City. Superintendent must be able to proficiently speak, read and write in English and shall have the authority to make decisions on behalf of the Contractor. Contractor shall continuously provide efficient supervision of the Project.
5.15 Labor.
A. Hours of Work.
1. As provided in Article 3 (commencing at section 1810), Chapter 1, Part 7, Division 2 of the Labor Code, Contractor stipulates that eight (8) hours of labor shall constitute a legal day’s work. The time of service of any worker employed at any time by the Contractor or by any subcontractor on any subcontract under this Contract upon the Work or upon any part of the Work contemplated by this Contract is limited and restricted to eight (8) hours during any one calendar day and 40 hours during any one calendar week, except as hereinafter provided.
Notwithstanding the provisions herein above set forth, work performed by employees of Contractor in excess of eight (8) hours per day, and 40 hours during any one week, shall be permitted upon this public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and onehalf times the basic rate of pay.
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2. The Contractor and every Subcontractor shall keep an accurate record showing the name of and actual hours worked each calendar day and each calendar week by each worker employed in connection with the Work or any part of the Work contemplated by this Contract. The record shall be kept open at all reasonable hours to the inspection of the City and to the Division of Labor Law Enforcement, Department of Industrial Relations of the State of California.
3. The Contractor shall pay to the City a penalty of twenty-five dollars ($25.00) for each worker employed in the execution of this Contract by the Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any calendar day and 40 hours in any one calendar week in violation of the provisions of Article 3 (commencing at section 1810), Chapter 1, Part 7, Division 2 of the Labor Code.
4. Any work necessary to be performed after regular working hours, or on Saturdays and Sundays or other holidays, shall be performed without additional expense to the City.
5. It shall be unlawful for any person to operate, permit, use, or cause to operate any of the following at the Project Site, other than between the hours of 7:00 a.m. to 5:00 p.m., Monday through Friday, with no Work allowed on Holidays, unless otherwise approved by the City:
a. Powered Vehicles
b. Construction Equipment
c. Loading and Unloading Vehicles
d. Domestic Power Tools
B. Payroll Records; Labor Compliance.
1. Pursuant to Labor Code section 1776, Contractor and all Subcontractors shall maintain weekly certified payroll records, showing the names, addresses, Social Security numbers, work classifications, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by them in connection with the Work under this Contract. Contractor shall certify under penalty of perjury that records maintained and submitted by Contractor are true and accurate. Contractor shall also require Subcontractor(s) to certify weekly payroll records under penalty of perjury.
2. In accordance with Labor Code section 1771.4, the Contractor and each Subcontractor shall furnish the certified payroll records directly to the Department of Industrial Relations (“DIR”) on the specified interval and format prescribed by the DIR, which may include electronic submission. Contractor shall comply with all requirements and regulations from the DIR relating to labor compliance monitoring and enforcement. The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not
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apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
3. Any stop orders issued by the DIR against Contractor or any Subcontractor that affect Contractor’s performance of Work, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Contractor or any Subcontractor.
4. The payroll records described herein shall be certified and submitted by the Contractor at a time designated by the City. The Contractor shall also provide the following:
a. A certified copy of the employee’s payroll records shall be made available for inspection or furnished to such employee or his or her authorized representative on request.
b. A certified copy of all payroll records described herein shall be made available for inspection or furnished upon request of the DIR.
5. Unless submitted electronically, the certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement (“DLSE”) of the DIR or shall contain the same information as the forms provided by the DLSE.
6. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency, the City, the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement shall be marked or obliterated in such a manner as to prevent disclosure of an individual's name, address and social security number. The name and address of the Contractor awarded the Contract or performing the Contract shall not be marked or obliterated.
7. In the event of noncompliance with the requirements of this Article, the Contractor shall have ten (10) Days in which to comply subsequent to receipt of written notice specifying in what respects the Contractor must comply with this Article. Should noncompliance still be evident after such 10-day period, the Contractor shall pay a penalty of one hundred dollars ($100.00) to the City for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payment then due.
8. The responsibility for compliance with this Article shall rest upon the Contractor.
C. Prevailing Rates of Wages.
1. The Contractor is aware of the requirements of Labor Code sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000
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et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Since this Project involves an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. The Contractor shall obtain a copy of the prevailing rates of per diem wages at the commencement of this Contract from the website of the Division of Labor Statistics and Research of the Department of Industrial Relations located at www.dir.ca.gov. In the alternative, the Contractor may view a copy of the prevailing rate of per diem wages which are on file at the City and shall be made available to interested parties upon request. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification, or type of worker needed to perform work on the Project available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the Project site. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and authorized volunteers free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or allege failure to comply with the Prevailing Wage Laws.
2. The Contractor shall forfeit as a penalty to the City not more than Two Hundred Dollars ($200.00), pursuant to Labor Code section 1775, for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate as determined by the Director of the DIR for such work or craft in which such worker is employed for any public work done under the Contract by it or by any Subcontractor under it. The difference between such prevailing wage rate and the amount paid to each worker for each calendar day or portion thereof, for which each worker was paid less than the prevailing wage rate, shall be paid to each worker by the Contractor.
3. Contractor shall post, at appropriate conspicuous points on the Project Site, a schedule showing all determined general prevailing wage rates and all authorized deductions, if any, from unpaid wages actually earned.
D. Public Works Contractor Registration. Pursuant to Labor Code sections 1725.5 and 1771.1, the Contractor and its Subcontractors must be registered with the DIR prior to the execution of a contract to perform public works. By entering into this Contract, Contractor represents that it is aware of the registration requirement and is currently registered with the DIR. Contractor shall maintain a current registration for the duration of the Project. Contractor shall further include the requirements of Labor Code sections 1725.5 and 1771.1 in any subcontract and ensure that all Subcontractors are registered at the time this Contract is entered into and maintain registration for the duration of the Project. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
E. Employment of Apprentices. Contractor and all Subcontractors shall comply with the requirements of Labor Code sections 1777.5 and 1777.6 in the employment of apprentices. Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from the Director of Industrial Relations, ex
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officio the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices. Knowing violations of Labor Code section 1777.5 will result in forfeiture not to exceed one hundred dollars ($100.00) for each calendar day of non-compliance pursuant to Labor Code section 1777.7.
F. Nondiscrimination/Equal Employment Opportunity. Pursuant to Labor Code section 1735 and other applicable provisions of law, the Contractor and its Subcontractors shall not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, or any other classifications protected by law on this Project. The Contractor will take affirmative action to insure that employees are treated during employment or training without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, or any other classifications protected by law. As a condition precedent to City’s lawful capacity to enter this Contract, and in executing this Contract, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.05.02, including without limitation the provision of benefits, relating to non-discrimination in city contracting.
G. Debarment of Contractors and Subcontractors. Contractors or Subcontractors may not perform work on a public works project with a subcontractor who is ineligible to perform work on a public project pursuant to Labor Code section 1777.1 or 1777.7.
Any contract on a public works project entered into between a contractor and a debarred subcontractor is void as a matter of law. A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract. Any public money that is paid, or may have been paid to a debarred subcontractor by a contractor on the project shall be returned to the City. The Contractor shall be responsible for the payment of wages to workers of a debarred subcontractor who has been allowed to work on the Project.
5.16 Subcontracts.
A. Contractor agrees to bind every Subcontractor to the terms of the Contract Documents as far as such terms are applicable to Subcontractor’s portion of the Work. Contractor shall be as fully responsible to the City for the acts and omissions of its Subcontractors and of persons either directly or indirectly employed by its Subcontractors, as Contractor is for acts and omissions of persons directly employed by Contractor. Nothing contained in these Contract Documents shall create any contractual relationship between any Subcontractor and the City. The City reserves the right to accept all Subcontractors. The City’s acceptance of any Subcontractor under this Contract shall not in any way relieve Contractor of its obligations in the Contract Documents. Prior to substituting any Subcontractor listed in the Bid Forms, Contractor must comply with the requirements of the Subletting and Subcontracting Fair Practices Act pursuant to California Public Contract Code section 4100 et seq.
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5.17 Progress Meetings.
A. The Contractor shall schedule and hold regular progress meetings at least weekly and at other times as requested by Engineer or as required by progress of the Work.
The Contractor and City shall attend each meeting. Contractor may at its discretion request attendance by representatives of its Suppliers, manufacturers, and other Subcontractors. The City will preside at the progress meetings and will arrange for keeping and distributing the minutes. The purpose of the meetings is to review the progress of the Work, maintain coordination of efforts, discuss changes in scheduling, and resolve other problems which may develop. During each meeting, the Contractor shall present any issues which may impact its progress with a view to resolve these issues expeditiously.
5.18 Submittals
A. Schedule of Submittals. Within five (5) Days after the Notice to Proceed (unless otherwise specified in the Contract Documents), Contractor will prepare and deliver a Schedule of Submittals to the City that has been fully integrated with the progress schedule and identifies each Submittal required by the Contract Documents as well as the date on which Contractor will deliver each Submittal to the City. Each Submittal must be delivered to the City at least thirty (30) Days prior to the date the material or equipment is scheduled to be incorporated into the Work. The Contractor is responsible for any schedule delays resulting from the Submittal process.
B. Submittal Procedures.
1. Contractor will follow the following procedures for each Submittal, Shop Drawing and Sample required by the Contract Documents:
a. Submittals must be transmitted electronically.
b. Transmittals will be sequentially numbered. Contractor to mark revised Submittals with original number and sequential alphabetic suffix. c. Each Submittal will identify the Project, Contractor, Subcontractor and Supplier, pertinent Drawing and detail number, and Specification Section number appropriate to Submittal.
d. By transmitting a Submittal, Contractor certifies it has reviewed and approved each Submittal, verified products required, field dimensions, adjacent construction Work, and that coordination of information is according to requirements of the Work and Contract Documents.
e. Identify variations in Contract Documents and product or system limitations that may differ and/or be detrimental to successful performance of completed Work.
f. When Submittal is revised for resubmission, Contractor shall promptly address the City’s comments and resubmit. Contractor shall identify changes made since previous submission.
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g. The City’s review of Shop Drawings shall not relieve Contractor from responsibility for deviations from the Contract Documents unless Contractor has, in writing, called the City’s attention to such deviations at time of submission and the City has taken no exception to the deviation. The City’s review of Shop Drawings shall not relieve Contractor from responsibility for errors in Shop Drawings.
h. Submittals not required by the Contract Documents or requested by the City will not be acknowledged or processed.
i. Incomplete Submittals will not be reviewed by the City. Delays resulting from incomplete Submittals are not the responsibility of the City. j. Contractor shall not be entitled to any extension of the Contract Times as a result of the Submittal process.
k. Contractor shall allow a minimum of 20 working days for review of Submittals unless otherwise specified in the Contract Documents.
2. Where a Submittal, Shop Drawing or Sample is required by the Contract Documents or the Schedule of Submittals, any related Work performed prior to the City review and approval of the pertinent submittal will be performed at the risk and sole expense and responsibility of Contractor.
C. Schedule Milestone for Submittals. Contractor must submit all Submittals required by the Contract Documents in accordance with the Schedule of Submittals. If Contractor fails to submit the Submittals in accordance with the Schedule of Submittals, Contractor will be solely liable for any delays or impacts caused by the delayed Submittal, whether direct or indirect. Contractor will be liable for the time calculated from the date the Submittal is due until the date a compliant Submittal is made. A compliant Submittal will be one that is complete and satisfies the requirements of the Contract Documents.
5.19 Shop Drawings and Sample Submittal Procedures.
A. Before submitting each Shop Drawing or Sample, Contractor shall have:
1. Reviewed and coordinated each Shop Drawing or Sample with other Shop Drawings and Samples and with the requirements of the Work and the Contract Documents;
2. Determined and verified all field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information with respect thereto;
3. Determined and verified the suitability of all materials offered with respect to the indicated application, fabrication, shipping, handling, storage, assembly, and installation pertaining to the performance of the Work; and
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4. Determined and verified all information relative to Contractor’s responsibilities for means, methods, techniques, sequences, and procedures of construction, and safety precautions and programs incident thereto.
B. With each Submittal, Contractor shall give the City specific written notice of any variations that the Shop Drawing or Sample may have from the requirements of the Contract Documents. This notice shall be both a written communication separate from the Shop Drawings or Sample Submittal and, in addition, a specific notation made on each Shop Drawing or Sample submitted to the City for review and approval of each such variation.
C. Shop Drawings.
1. Data shown on the Shop Drawings will be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data to show the City the services, materials, and equipment Contractor proposes to provide and to enable the City to review the information for assessing conformance with information given and design concept expressed in Contract Documents.
2. When required by individual Specification sections, provide Shop Drawings signed and sealed by a professional engineer responsible for designing components shown on Shop Drawings. Shop Drawings must include signed and sealed calculations to support design in a form suitable for submission to and approval by authorities having jurisdiction.
3. Shop Drawings for steel structures shall consist of shop details, erection and other working Drawings showing details, dimensions, sizes of members and other information necessary for the complete fabrication and erection of the metal work.
4. Shop Drawings of concrete structures shall consist of such detailed drawings as may reasonably be required for the successful prosecution of the Work and which are not included in the Drawings furnished by the Engineer. These may include drawings for false work, bracing, centering and form work, masonry layout diagrams, and diagrams for bent reinforcement.
5. Contractor shall make revisions and provide additional information when required by authorities having jurisdiction.
D. Samples. Clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which intended and other data as required to enable the City to review the submittal for assessing conformance with information given and design concept expressed in Contract Documents. Samples should be of appropriate size and detail to assess functional, aesthetic, color, texture, patterns and finish selection.
E. City’s Review.
1. The City will review Shop Drawings and Samples in accordance with the Schedule of Submittals. The City’s review and acceptance will be only to determine if the items covered by the Submittals will, after installation or incorporation in the Work, conform to the information given in the Contract Documents and be compatible
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with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents.
2. The City review and approval will not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequence, or procedure of construction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions.
3. The City’s review and acceptance shall not relieve Contractor from responsibility for any variation from the requirements of the Contract Documents unless the City has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Shop Drawing or Sample.
F. Resubmittal Procedures. Contractor shall make corrections required by the City and shall return corrected Shop Drawings and submit, as required, new Samples for review and approval. Contractor shall direct specific attention in writing to revisions other than the corrections called for by the City on previous Submittals.
5.20 Record (“As-Built”) Drawings.
A. The Contractor shall maintain one record set of Contract Documents at the Site or digitally in an acceptable format. On these, it shall mark all Project conditions, locations, configurations, and any other changes or deviations which may vary from the information represented in the original Contract Documents, including buried or concealed construction and utility features which are revealed during the course of construction. Special attention shall be given to recording the horizontal and vertical location of all buried utilities that differ from the locations indicated, or which were not indicated on the Drawings. For all Projects involving the installation of any pipeline, Contractor shall survey and record the top of the pipe at a minimum of every 100 linear feet, and at each bend, recording both the horizontal and vertical locations. Drawings shall be supplemented by any detailed sketches as necessary or directed to fully indicate the Work as actually constructed. Any required as-built drawings of civil engineering elements of the Work shall be prepared by a registered civil engineer.
B. These master Record Drawings of the as-built conditions, including all revisions made necessary by Addenda and Change Orders, shall be maintained up-to-date during the progress of the Project. Red ink shall be used for alterations and notes.
Notes shall identify relevant Change Orders by number and date. Record Drawings shall be accessible to the Engineer at all times during the construction period.
Failure on the Contractor’s part to keep Record Drawings current could result in withholding partial payment.
C. Upon completion of the Project and as a condition of final acceptance, the Contractor shall finalize and deliver a complete set of Record Drawings to the Engineer. The information submitted by the Contractor will be assumed to be correct, and the Contractor shall be responsible for, and liable to the City, for the accuracy of such information, and for any errors or omissions which may or may not appear on the Record Drawings.
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5.21 Layout and Field Engineering.
A. The Contractor shall utilize a properly licensed surveyor to perform all layout surveys required for the control and completion of the Work and all necessary surveys to compute quantities of Work performed.
5.22 Separate Contracts and Cooperation.
A. Separate Contracts. The City reserves the right to let other contracts in connection with this Work or on the Project site. Contractor shall permit other contractors reasonable access and storage of their materials and execution of their work and shall properly connect and coordinate its Work with theirs. To ensure proper execution of its subsequent Work, Contractor shall immediately inspect work already in place and shall at once report to the Engineer any problems with the Work in place or discrepancies with the Contract Documents.
B. Cooperation. Contractor shall ascertain to its own satisfaction the scope of the Project and nature of any other contracts that have been or may be awarded by the City in prosecution of the Project to the end that Contractor may perform this Contract in the light of such other contracts, if any. Nothing herein contained shall be interpreted as granting to Contractor exclusive occupancy at site of the Project.
Contractor shall not cause any unnecessary hindrance or delay to any other contractor working on the Project. If simultaneous execution of any contract for the Project is likely to cause interference with performance of some other contract or contracts, the Engineer shall decide which Contractor shall cease Work temporarily and which contractor shall continue or whether work can be coordinated so that contractors may proceed simultaneously. The City shall not be responsible for any damages suffered or for extra costs incurred by Contractor resulting directly or indirectly from award, performance, or attempted performance of any other contract or contracts on the Project Site.
5.23 Work Site.
A. Limitation of Use of Site and Other Areas. Rights-of-way, easements, or rights-ofentry for the Work will be provided by the City. Unless otherwise specified in the Special Provisions, the Contractor shall make arrangements, pay for, and assume all responsibility for acquiring, using, and disposing of additional work areas and facilities temporarily required. The Contractor shall indemnify and hold the City harmless from all claims for damages caused by such actions. Contractor shall confine construction equipment, the storage of materials and equipment, and the operations of workers to the Site and other areas permitted by Applicable Laws, and shall not unreasonably encumber the Site and other areas with construction equipment or other materials or equipment. Contractor shall assume full responsibility for any damage to any such land or area, or to City or occupant thereof, or of any adjacent land or areas resulting from the performance of the Work.
B. Site Maintenance. During the progress of the Work, Contractor shall keep the Site and other areas free from accumulations of waste materials, rubbish, and other debris. Removal and disposal of such waste materials, rubbish, and other debris shall conform to Applicable Laws. The Contractor shall furnish trash bins for all debris from construction. All debris shall be placed in trash bins daily. Forms and
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false-work that are to be re-used shall be stacked neatly concurrently with their removal. Forms and false-work that are not to be re-used shall be disposed of concurrently with their removal.
C. Cleaning. Prior to Completion of the Work, Contractor shall clean the Site and make it ready for utilization by the City. At the completion of the Work Contractor shall remove from the Site all tools, appliances, construction equipment and machinery, and surplus materials and shall restore to original condition all property not designated for alteration by the Contract Documents.
5.24 Utility Usage.
A. All temporary utilities, including but not limited to electricity, water, gas, and telephone, used on the Work shall be furnished and paid for by Contractor.
Contractor shall provide necessary temporary distribution systems, including meters, if necessary, from distribution points to points on the Work where the utility is needed. Upon completion of the Work, Contractor shall remove all temporary distribution systems. Contractor shall provide necessary and adequate utilities and pay all costs for water, electricity, gas, oil, and sewer charges required for completion of the Work, including but not limited to startup and testing required in the Contract Documents. All permanent meters installed shall be listed in the Contractor’s name until the Work is accepted. For Work to be performed in existing City facilities, Contractor may use the City’s existing utilities, provided such use is reasonable under the circumstances. If Contractor uses the City utilities, it will not need to compensate the City for reasonably consumption of utilities, but Contractor will be responsible for any excessive, unreasonable or wasteful utility usage. Amounts due the City under this section may be deducted from progress payments.
5.25 Protection of Work and Property.
A. Contractor shall digitally record video and take photographs of the Project site and adjacent improvements in a manner and quality that clearly depicts the existing condition of the Project Site and adjacent improvements immediately prior to the start of Work (minimum 1080p video and 4MP photo). All videos and photographs shall be date and time stamped. Contractor shall submit the video and photos in digital format on a memory stick before the commencement of Work, along with a map outlining the route and locations of the videos and/or photographs. Contractor shall be responsible for all damages to persons or property that occur as a result of the Work. Contractor shall be responsible for the proper care and protection of all materials delivered and Work performed until completion and final acceptance by the City. All Work shall be solely at the Contractor’s risk.
B. Contractor shall adequately protect adjacent property from settlement or loss of lateral support as necessary. Contractor shall comply with all applicable safety laws and building codes to prevent accidents or injury to persons on, about, or adjacent to the Project site where Work is being performed. Contractor shall erect and properly maintain at all times, as required by field conditions and progress of work, all necessary safeguards, signs, barriers, lights, and watchmen for protection of workers and the public, and shall post danger signs warning against hazards created in the course of construction. Contractor shall provide such heat, covering, and
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enclosures as are necessary to protect all Work, materials, equipment, appliances, and tools against damage by weather conditions.
C. Contractor shall take adequate precautions to protect existing sidewalks, curbs, pavements, utilities, and other adjoining property and structures, and to avoid damage thereto, and Contractor shall repair any damage thereto caused by the Work operations. Contractor shall:
1. Enclose the working area with a substantial barricade, and arrange work to cause minimum amount of inconvenience and danger to the public.
2. Provide substantial barricades around any shrubs or trees indicated to be preserved.
3. Deliver materials to the Site over a route designated by the City.
4. Confine Contractor’s apparatus, the storage of materials, and the operations of its workers to limits required by law, ordinances, permits, or directions of the City.
Contractor shall not unreasonably encumber the Site with its materials.
5. Take care to prevent disturbing or covering any survey markers, monuments, or other devices marking property boundaries or corners. If such markers are disturbed by accident, they shall be replaced by a civil engineer or land surveyor acceptable to the City, at no cost to the City.
6. Ensure that existing facilities, fences and other structures are all adequately protected and that, upon completion of all Work, all facilities that may have been damaged are restored to a condition acceptable to the City.
7. Preserve and protect from injury all buildings, pole lines and all directional, warning and mileage signs that have been placed within the right-of-way.
8. At the completion of work each day, leave the Work and the Site in a clean, safe condition.
9. Comply with any stage construction and/or traffic handling plans. Access to residences and businesses shall be maintained at all times, except with the City’s written approval. Any request for approval to reduce or restrict access to residences and business must be submitted to the City at least seven (7) Days in advance, and the City may issue or withhold approval in its sole discretion.
D. These precautionary measures will apply continuously and not be limited to normal working hours. Full compensation for the work involved in the protection and preservation of life, safety and property as above specified shall be considered as included in the prices paid for the various contract items of Work, and no additional allowance will be made therefor.
E. Should damage to persons or property occur as a result of the Work, Contractor shall promptly notify the City, in writing. Contractor shall be responsible for proper investigation, documentation, including video or photography, to adequately memorialize and make a record of what transpired. The City shall be entitled to
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inspect and copy any such documentation, video, or photographs. Contractor shall maintain all investigation documentation including video and/or photographs for a minimum of four (4) years following completion of the Project.
5.26 Emergencies.
A. In emergencies affecting the safety or protection of persons or the Work or Property at the Site or adjacent thereto, the Contractor, without special instruction or authorization from the City or the Engineer, is obligated to act to prevent threatened damage, injury or loss. The Contractor shall give the Engineer prompt written notice if the Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby.
5.27 California Air Resources Board Regulations.
A. To the extent applicable, Contractor, shall comply, and shall ensure all Subcontractors comply, with all requirements of the most current version of the California Air Resources Board (“CARB”) including, without limitation, all applicable terms of Title 13, California Code of Regulations Division 3, Chapter 9 and all pending amendments (“Regulation”).
B. Throughout Project, and for three (3) years thereafter, Contractor shall make available for inspection and copying any and all documents or information associated with Contractor’s and subcontractors’ fleet including, without limitation, the CRCs, fuel/refueling records, maintenance records, emissions records, and any other information the Contractor is required to produce, keep or maintain pursuant to the Regulation upon two (2) calendar days’ notice from City.
C. Contractor shall be solely liable for any and all costs associated with complying with the Regulation as well as for any and all penalties, fines, damages, or costs associated with any and all violations, or failures to comply with the Regulation.
Contractor shall defend, indemnify and hold harmless the City, its officials, officers, employees and authorized volunteers free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Regulation.
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ARTICLE 6 -MATERIALS; INSPECTION
6.1 Access to Work.
A. The City, Engineer, their consultants and other representatives and personnel, independent testing laboratories, and governmental agencies with jurisdictional interests will have access to the Site and the Work at reasonable times for their observation, inspection, and testing. Contractor shall provide them proper and safe conditions for such access and advise them of Contractor’s safety procedures and programs.
6.2 Materials.
A. Except as otherwise specifically stated in the Contract Documents, Contractor shall provide and pay for all materials, labor, tools, equipment, water, lights, power, transportation, superintendence, temporary constructions of every nature, and all other services and facilities whatsoever necessary to execute and complete this Contract within the Contract Time. Unless otherwise specified, all materials, parts, and equipment furnished by the Contractor in the Work shall be new, the best of their respective kinds and grades as noted and/or specified, and workmanship shall be of good quality.
B. No materials, supplies, or equipment for Work under this Contract shall be purchased subject to any chattel mortgage or under a conditional sale or other agreement by which an interest therein or in any part thereof is retained by the seller or Supplier. Contractor warrants good title to all material, supplies, and equipment installed or incorporated in the Work and agrees upon completion of all work to deliver the Project, to the City free from any claims, liens, or charges.
C. Materials shall be furnished in ample quantities and at such times as to ensure uninterrupted progress of the Work and shall be stored properly and protected as required by the Contract Documents. Contractor shall be entirely responsible for damage or loss by weather or other causes to materials or Work. Materials shall be stored on the Project Site in such manner so as not to interfere with any operations of the City or any independent contractor.
D. Contractor shall verify all measurements, dimensions, elevations, and quantities before ordering any materials or performing any Work, and the City shall not be liable for Contractor’s failure to so. No additional compensation, over and above payment for the actual quantities at the prices set out in the Bid Schedule, will be allowed because of differences between actual measurements, dimension, elevations and quantities and those indicated on the Plans and in the Specifications. Any difference therein shall be submitted to the Engineer for consideration before proceeding with the Work.
6.3 Test and Inspections.
A. Inspection of Work.
1. If the Contract Documents, the Engineer, or any instructions, laws, ordinances, or public authority requires any part of the Work to be tested or approved, Contractor
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shall provide the Engineer at least two (2) Days’ notice of its readiness for observation or inspection. If inspection is by a public authority other than the City, Contractor shall promptly inform the City of the date fixed for such inspection.
Required certificates of inspection (or similar) shall be secured by Contractor.
Costs for City testing and inspection shall be paid by the City. Costs of tests for Work found not to be in compliance shall be paid by the Contractor.
2. If Contractor gives notice of an inspection pursuant to the Contract Documents, the City will provide inspection during normal working hours from 7:00 a.m. to 3:30 p.m. Monday through Friday. Requested inspections before or after this time will be charged to the Contractor as reimbursable inspection time. Inspections on weekends requires two (2) Days’ notice for review and approval. Upon written request and approval the 8.5 hour working day may be changed to other limits.
3. The Contractor shall pay for the cost of any minimum “show up” costs of a materials testing technician that was called for by the Contractor but ultimately the Contractor work was not ready for the inspection. Any such costs shall be deducted from any amounts due to the Contractor.
4. If any Work is done or covered up without the required testing or approval, the Contractor shall uncover or deconstruct the Work, and the Work shall be redone after completion of the testing at the Contractor’s cost in compliance with the Contract Documents.
5. Where inspection and testing are to be conducted by an independent laboratory or agency, materials or samples of materials to be inspected or tested shall be selected by such laboratory or agency, or by the City, and not by Contractor.
Unless otherwise stated and as provided by the Contract Documents, the City shall employ and pay for the services of an independent testing laboratory to perform all inspections, tests, or approvals required by the Contract Documents. All tests or inspections of materials shall be made in accordance with the commonly recognized standards of national organizations.
6. Reexamination of Work may be ordered by the City. If so ordered, Work must be uncovered or deconstructed by Contractor. If Work is found to be in accordance with the Contract Documents, the City shall pay the costs of reexamination and reconstruction. If such work is found not to be in accordance with the Contract Documents, Contractor shall pay all costs.
B. Testing of Materials.
1. In advance of manufacture of materials to be supplied by Contractor which must be tested or inspected, Contractor shall notify the City so that the City may arrange for testing at the source of supply. Any materials which have not satisfactorily passed such testing and inspection shall not be incorporated into the Work.
2. If the manufacture of materials to be inspected or tested will occur in a plant or location greater than sixty (60) miles from the City, the Contractor shall pay for any excessive or unusual costs associated with such testing or inspection, including but not limited to excessive travel time, standby time and required lodging.
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3. Unless otherwise specified in the Special Provisions, all initial testing and a reasonable amount of retesting will be performed under the direction of the Engineer, and at no expense to the Contractor. The Contractor shall notify the Engineer in writing, at least 15 days in advance, of its intention to use materials for which tests are specified, to allow sufficient time to perform the tests. The notice shall name the proposed Supplier and source of material. If the notice of intent to use is sent before the materials are available for testing or inspection, or is sent so far in advance that the materials on hand at the time will not last but will be replaced by a new lot prior to use on the Work, it will be the Contractor's responsibility to renotify the Engineer when samples which are representative may be obtained.
4. A Certificate of Compliance shall be furnished to the Engineer prior to the use of any material or assembled material for which these Specifications so require or if so required by the Engineer. The Engineer may waive the materials testing requirements and accept a Certificate of Compliance. Material test data may be required by the Engineer to be included with the Submittal. Materials used on the basis of a Certificate of Compliance may be sampled and tested at any time. The submission of a Certificate of Compliance shall not relieve the Contractor of responsibility for incorporating material into the Work which conforms to the requirements of the Contract Documents, and any material not conforming to the requirements will be subject to rejection by the Engineer whether in place or not.
5. Copies of mill certificates of composition and quality of all component materials (reinforcing steel, structural steel, lumber, etc.) incorporated in the construction of the Work shall be provided to the City at the time of delivery. City shall retain the right to reject any raw material not provided with a mill certificate at the time of delivery.
6. If, after incorporating such materials into the Work, it is found that sources of supply that have been approved do not furnish a uniform product, or if the product from any source proves unacceptable at any time, the Contractor shall furnish approved material from other approved sources. If any product proves unacceptable after improper storage, handling or for any other reason it shall be rejected, not incorporated into the Work, and shall be removed from the Project Site all at the Contractor’s expense.
6.4 Requests for Substitutions.
A. For the purposes of this provision, the term “substitution” shall mean the substitution of any material, method or service substantially equal to or better in every respect to that indicated in the Contract Documents or otherwise referenced herein.
B. Pursuant to Public Contract Code section 3400(b), the City may make a finding that is described in the Notice Inviting Bids that designates certain products, things, or services by specific brand or trade name.
C. Unless specifically designated in the Special Conditions, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such specifications shall be deemed to be used for the purpose of facilitating the description of the material, process, or article desired and shall be deemed to be followed by the words “or equal.” Contractor may, unless
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otherwise stated, offer for substitution any material, process, or article which may be substantially equal to or better in every respect to that so indicated or specified in the Contract Documents. However, the City has adopted uniform standards for certain materials, processes, and articles.
D. The Contractor shall submit substitution requests, together with substantiating data, for substitution of any “or equal” material, process, or article no later than thirty-five (35) Days after award of Contract. Provisions regarding submission of substitution requests shall not in any way authorize an extension of time for the performance of this Contract. If a substitution request is rejected by the City, the Contractor shall provide the material, method or service specified herein. The City shall not be responsible for any costs incurred by the Contractor associated with substitution requests. The burden of proof as to the equality of any material, process, or article shall rest with the Contractor. The Engineer has the complete and sole discretion to determine if a material, process, or article is substantially equal to or better than that specified and to approve or reject all substitution requests.
E. Substantiating data as described above shall include, at a minimum, the following information:
1. A signed affidavit from the Contractor stating that the material, process, or article proposed as a substitution is substantially equal to or better than that specified in every way except as may be listed on the affidavit.
2. Illustrations, specifications, catalog cut sheets, and any other relevant data required to prove that the material, process, or article is substantially equal to or better than that specified.
3. A statement of the cost implications of the substitution being requested, indicating whether and why the proposed substitution will reduce or increase the amount of the contract.
4. Information detailing the durability and lifecycle costs of the proposed substitution.
F. Failure to submit all the required substantiating data detailed above in a timely manner so that the substitution request can be adequately reviewed may result in rejection of the substitution request. The Engineer is not obligated to review multiple submittals related the same substitution request resulting from the Contractor’s failure to initially submit a complete package.
G. Time limitations within this Article shall be strictly complied with and in no case will an extension of time for completion of the contract be granted because of Contractor’s failure to provide substitution requests at the time and in the manner described herein.
H. The Contractor shall bear the costs of all the City work associated with the review of substitution requests.
I. If substitution requests approved by the Engineer require that Contractor furnish materials, methods or services more expensive than that specified, the increased costs shall be borne by Contractor.
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ARTICLE 7 -SUBSURFACE AND PHYSICAL CONDITIONS; UTILITIES
7.1 Soils Investigations.
A. Reports and Drawings. The Special Conditions identify: those reports known to the City of explorations and tests of subsurface conditions at or contiguous to the site; and those drawings known to the City of physical conditions relating to existing surface or subsurface structures at the site (except Underground Facilities).
B. Limited Reliance by Contractor on Technical Data Authorized. Contractor may rely upon the accuracy of the “technical data” contained in such reports and drawings, which were expressly not created or obtained to evaluate or assist in the evaluation of constructability, and are not Contract Documents. Contractor shall make its own interpretation of the “technical data” and shall be solely responsible for any such interpretations. Except for reliance on the accuracy of such “technical data,” Contractor may not rely upon or make any claim against the City, City’s Representative, or Engineer of Record, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors, with respect to:
1. the completeness of such reports and drawings for Contractor’s purposes, including without limitation any aspects of the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, and safety precautions and programs incident thereto;
2. other data, interpretations, opinions, conclusions and information contained in such reports or shown or indicated in such drawings; or
3. any Contractor interpretation of or conclusion drawn from any “technical data” or any such other data, interpretations, opinions, or information.
7.2 Ownership of Site Materials Found.
A. The title to water, soil, rock, gravel, sand, minerals, timber and any other materials developed or obtained in the excavation or other operations of Contractor or any of its Subcontractors in the performance of the Contract, and the right to use said items in carrying out the Contract, or to dispose of same, is hereby expressly reserved by the City. Neither Contractor nor any of its Subcontractors nor any of their representatives or employees shall have any right, title, or interest in said materials, nor shall they assert or make any claim thereto. Contractor will, as determined by the City, be permitted to use in the Work without charge, any such materials which meet the requirements of the Contract Documents, provided the City shall have the right to use or consume these materials without payment to a third party.
7.3 Existence of Utilities at the Work Site.
A. Existing Utilities. The location of known existing utilities and pipelines are shown on the Drawings in their approximate locations. However, nothing herein shall be deemed to require the City to indicate the presence of existing service laterals or appurtenances whenever the presence of such utilities on the site of the project can be inferred from the presence of other visible facilities, such as buildings, cleanouts, meter and junction boxes, on or adjacent to the Site of the Project. The City will
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assume the responsibility for the timely removal, relocation, or protection of existing main or trunk line utility facilities located on the Project site if such utilities are not identified by the City in the Contract Documents or which cannot reasonably be inferred from the presence of other visible facilities.
B. Utility Location.
1. It shall be the Contractor’s responsibility to determine the exact location and depth of all utilities, including service connections, which the Contractor believes may affect or be affected by the Contractor’s operations, by taking all reasonable steps necessary including, but not limited to, calling Underground Service Alert to locate utilities in accordance with the procedures described in Government Code 4216 et seq. The Contractor shall not be entitled to additional compensation nor time extensions for work necessary to avoid interferences nor for repair to damaged utilities if the Contractor does not expose all such existing utilities as required by this Article. The locating of utilities shall be in conformance with Government Code section 4216 et seq. except for the City’s utilities located on the City’s property and not on public right-of-way.
2. A “High Priority Subsurface Installation” is defined in Government Code section 4216 (j) as “high-pressure natural gas pipelines with normal operating pressures greater than 415kPA gauge (60psig) or greater than six inches nominal pipe diameter, petroleum pipelines, pressurized sewage pipelines, high-voltage electric supply lines, conductors, or cables that have a potential to ground of greater than or equal to 60kv, or hazardous materials pipelines that are potentially hazardous to workers or the public if damaged.”
3. A “Subsurface Installation” is defined in Government Code section 4216 (s) as “any underground pipeline, conduit, duct, wire, or other structure, except nonpressurized sewer lines, nonpressurized storm drains, or other nonpressurized drain lines.”
4. Pursuant to Government Code section 4216.2 the Contractor shall contact the appropriate regional notification center at least two (2) working days but not more than 14 Days before performing any excavation. The date of the notification shall not count as part of the two-working-day notice. Before notifying the appropriate regional notification center, the Contractor shall delineate the area to be excavated. The Contractor shall request that the utility owners conduct a utility survey and mark or otherwise indicate the location of their service. The Contractor shall furnish to the Engineer written documentation of its contact(s) with the regional notification center prior to commencing excavation at such locations.
5. After the utility survey is completed, the Contractor shall commence “potholing” or hand digging to determine the actual location of the pipe, duct, or conduit and in accordance with Government Code section 4216.4 if the excavation within the “tolerance zone” of a subsurface installation. The Engineer shall be given notice prior to commencing potholing operations. The Contractor shall uncover all piping and conduits, to a point one (1) foot below the pipe, where crossings, interferences, or connections are shown on the Drawings, prior to trenching or excavating for any pipe or structures, to determine actual elevations. New pipelines shall be laid to
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such grade as to clear all existing facilities, which are to remain in service for any period subsequent to the construction of the run of pipe involved.
6. The Contractor's attention is directed to the requirements of Government Code section 4216.2 (c) which provides: “When the excavation is proposed within 10 feet of a high priority subsurface installation, the operator of the high priority subsurface installation shall notify the excavator of the existence of the high priority subsurface installation to set up an onsite meeting prior to the legal excavation start date and time or at a mutually agreed upon time to determine actions or activities required to verify the location and prevent damage to the high priority subsurface installation. As part of the meeting, the excavator shall discuss with the operator the method and tools that will be used during the excavation and the information the operator will provide to assist in verifying the location of the subsurface installation. The excavator shall not begin excavating until after the completion of the onsite meeting.” The Contractor shall notify the Engineer in advance of this meeting.
C. Utility Relocation and Repair. If interferences occur at locations other than those indicated in the Contract Documents with reasonable accuracy, the Contractor shall notify the Engineer in writing. The Engineer will supply a method for correcting said interferences in accordance with the responsibilities of this Article and Government Code section 4215. Care shall be exercised by the Contractor to prevent damage to adjacent existing facilities and public or private works; where equipment will pass over these obstructions, suitable planking shall be placed. If high priority subsurface installations are damaged and the operator cannot be contacted, the Contractor shall call 911 emergency services. Temporary or permanent relocation or alteration of utilities desired by the Contractor for its own convenience shall be the Contractor’s responsibility and it shall make arrangements and bear all costs for such work D. Construction at Existing Utilities. Where the Work to be performed crosses or otherwise interferes with water, sewer, gas, or oil pipelines; buried cable; or other public or private utilities, the Contractor shall perform construction in such a manner so that no damage will result to either public or private utilities. It shall be the responsibility of the Contractor to determine the actual locations of, and make accommodates to maintain, all utilities. Before any utility is taken out of service, permission shall be obtained by the Contractor from the owner. The owner, any impacted resident or business owner and the City will be advised of the nature and duration of the utility outage as well as the Contractor’s plan for providing temporary utilities if required by the owner. The Contractor shall be liable for all damage which may result from its failure to maintain utilities during the progress of the Work, and the Contractor shall indemnify City as required by the Contract Documents from all claims arising out of or connected with damage to utilities encountered during construction; damages resulting from disruption of service; and injury to persons or damage to property resulting from the negligent, accidental, or intentional breaching of utilities.
7.4 Trenches.
A. Trenches Five Feet or More in Depth. Contractor shall submit to the City at the preconstruction meeting, a detailed plan showing the design of shoring, bracing, sloping or other provisions to be made for worker protection from hazards of caving
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ground during the excavation of any trench or trenches five feet or more in depth. If such plan varies from shoring system standards established by the Construction Safety Orders of the California Code of Regulations, Department of Industrial Relations, the plan shall be prepared by a California registered civil or structural engineer. The plan shall not be less effective than the shoring, bracing, sloping, or other provisions of the Construction Safety Orders, as defined in the California Code of Regulations. The Contractor shall designate in writing the “competent person” as defined in Title 8, California Code of Regulations, who shall be present at the Work Site each day that trenching/excavation is in progress. The “competent person” shall prepare and provide daily trenching/excavation inspection reports to the Engineer.
Contractor shall also submit a copy of its annual California Occupational Safety and Health Administration (Cal/OSHA) trench/excavation permit.
B. Excavations Deeper than Four Feet.
1. If the Work involves excavating trenches or other excavations that extend deeper than four (4) feet below the surface, Contractor shall promptly within three (3) Days, and before the excavation is further disturbed, notify the City in writing of any of the following conditions:
a. Material that the Contractor believes may be material that is hazardous waste, as defined in section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law.
b. Subsurface or latent physical conditions at the site differing from those indicated by information made available to bidders prior to the deadline for submitting bids. c. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract
2. The City shall promptly investigate the conditions, and if it finds that the conditions do so materially differ, or do involve hazardous waste, and cause a decrease or increase in Contractor’s cost of, or the time required for, performance of any part of the Work, shall issue a Change Order under the procedures described in Article
9.1 Change Orders and Time Extensions.
3. In the event that a dispute arises between the City and the Contractor as to whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the Contractor’s cost of, or time required for, performance of any part of the Work, the Contractor shall not be excused from any scheduled completion date provided for by the Contract, but shall proceed with all Work to be performed under the Contract. Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the parties.
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ARTICLE 8 -PROSECUTION OF THE WORK
8.1 Contractor’s Means and Methods.
A. Contractor is solely responsible for the means and methods utilized to perform the Work. Contractor shall perform all Work 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 warrants that all employees and Subcontractors shall have sufficient skill and experience to perform the Work assigned to them. 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, and that such licenses and approvals shall be maintained throughout the term of this Contract. Contractor shall perform the Work in full compliance with all applicable state, federal and local laws and to the all jurisdictions having authority over the Project.
8.2 Construction Schedule.
A. General Requirements. The schedule shall be prepared in a critical path method format and in an electronic scheduling program acceptable to the City and as specified in the Contract Documents. Contractor shall deliver the schedule and all updates to the City in both paper and electronic form. The electronic versions shall be in the format and include all data used to prepare the schedule.
B. Schedule. The receipt or approval of any schedules by the City shall not in any way relieve the Contractor of its obligations under the Contract Documents. The Contractor is fully responsible to determine and provide for any and all staffing and resources at levels which allow for good quality and timely completion of the Project.
Contractor’s failure to incorporate all elements of Work required for the performance of the Contract or any inaccuracy in the schedule shall not excuse the Contractor from performing all Work required for a completed Project within the specified Contract Time. If the required schedule is not received by the time the first payment under the Contract is due, Contractor shall not be paid until the schedule is received, reviewed and accepted by the City.
C. Schedule Contents. The schedule shall indicate the beginning and completion dates of all phases of construction; critical path for all critical, sequential time related activities; and “float time” for all “slack” or “gaps” in the non-critical activities. The schedule shall include appropriate time allowances and constraints for Submittals, items of interface with Work performed by others, and specified construction, startup and performance tests. All float shall be owned by the Project. Schedules indicating early or late completion shall not modify or have any effect on the Contract Time, regardless of whether the schedules are reviewed and/or accepted by the City.
D. Schedule Updates. Contractor shall continuously update its construction schedule.
Contractor shall submit an updated and accurate construction schedule to the City:
(1) prior to the start of construction, if there are any changes to the initial schedule; (2) with each progress payment request; and (3) whenever requested to do so by the City. The City may withhold progress payments or other amounts due under the Contract Documents if Contractor fails to submit an updated and accurate construction schedule. Upon the City’s request, Contractor shall submit any
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schedules or updates to the City in the native electronic format of the software used to create the schedule. Contractor shall also submit schedules showing a two-week detailed look-ahead at weekly meetings conducted with the City. The two-week lookahead schedule shall clearly identify all staffing and other resources which in the Contractor’s judgment are needed to complete the Work within the Contract Time, and it shall clearly state the number of staff to be used on each daily segment of the Work.
E. Acceptance. Acceptance of the schedules by the City will not impose on responsibility for accuracy, for sequencing, scheduling, or progress of the Work, or compliance with the Contract Documents. Acceptance will not interfere with or relieve Contractor from Contractor’s full responsibility therefor.
8.3 Time for Completion and Liquidated Damages.
A. Time for Completion. The time for completion set forth in Article 2 of the Contract for Construction shall commence: (1) on the date stated in the Notice to Proceed, or (2) if the Notice to Proceed does not specify a commencement date, then on the date of the Notice to Proceed and shall be completed by Contractor in the time specified in the Contract Documents. The City is under no obligation to consider early completion of the Project; and the Contract completion date shall not be amended by the City’s receipt or acceptance of the Contractor’s proposed earlier completion date. Any difference in time between the Contractor’s early completion and the Contract Time shall be considered a part of the Project float. Contractor shall not be entitled to compensation, and the City will not compensate Contractor, for delays which impact early completion. Contractor shall not, under any circumstances, receive additional compensation from the City (including but not limited to indirect, general, administrative or other forms of overhead costs) for the period between the time of earlier completion proposed by the Contractor and the Contract completion date.
B. Procedure for Time Extensions and Delay Damages. Contractor shall not be entitled to any extension of time unless Contractor properly notices the delay and adjustment to compensation and requests a Change Order in accordance with Article 9.1 Change Orders and Time Extensions. Contractor’s failure to timely and fully comply with the Change Order procedures in the Contract Documents shall constitute a waiver of Contractor’s right to a time extension or reverse liquidated damages.
C. City-Caused Extension of Time. Contractor’s entitlement to an extension of Contract Time for a City-caused delay shall only be allowed when, and then only to the extent that, the City-caused delay extends the Critical Path beyond the Contract Time. The delay to the Critical Path must be established by a proper time impact analysis. City shall ascertain the facts and extent of delay and grant extension of time for completing the Work when, in its judgment, the facts justify such an extension.
Contractor shall not be entitled to an adjustment of Contract Time for delays within the control of Contractor. Delays attributable to and within the control of a Subcontractor or Supplier shall be deemed to be delays within the control of Contractor. If approved, the increase in time required to complete Work shall be added to the Contract Time.
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D. Concurrent Delay. In the event of Concurrent Delay, the Contract Time may be extended, as determined by City, however, such delay is non-compensable and the Contract Price shall not be adjusted.
E. Inclement Weather. Contractor shall abide by the City’s determination of what constitutes inclement weather. Time extensions for inclement weather shall only be granted when the Work stopped during inclement weather is on the critical path of the Project schedule.
F. Utility-Related Delays. If a delay to the Critical Path results from acts of public utilities or delays caused by failure of a public agency or owner of a utility to provide for removal or relocation of existing main or trunkline utility facilities or other known utility facilities, Contractor will be entitled to a time extension, but will not receive an adjustment to the Contract Price or any other compensation.
G. Force Majeure. If a delay to the Critical Path results from a Force Majeure Event, Contractor will be entitled to a time extension, but will not receive an adjustment to the Contract Price or any other compensation. Such a non-compensable adjustment shall be Contractor’s sole and exclusive remedy for a Force Majeure Event.
H. No Damages for Reasonable Delay. The City’s liability to Contractor for delays for which the City is responsible shall be limited to only an extension of time unless such delays were unreasonable under the circumstances. In no case shall the City be liable for any costs which are borne by the Contractor in the regular course of business, including, but not limited to, home office overhead and other ongoing costs. Damages caused by unreasonable City delay shall be based on actual costs only, no proportions or formulas shall be used to calculate any delay damages.
I. Liquidated Damages. If the Work is not completed within the Contract Time(s), it is understood that the City will suffer damage. In accordance with Government Code section 53069.85 and Public Contract Code section 7102, being impractical and infeasible to determine the amount of actual damage, it is agreed that Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum stipulated in the Contract for each calendar day of delay until the Work is fully completed. Contractor and its surety shall be liable for any liquidated damages. Any money due or to become due the Contractor may be retained to cover liquidated damages.
8.4 Contractor’s Responsibility for Work.
A. Responsibility for, and security of, all Work and materials related to Contractor’s Work is the responsibility of Contractor until final acceptance of the Contractor’s Work by the City. The City shall not be held responsible for the care or protection of any material or parts of the Work prior to final acceptance. Contractor shall take every necessary precaution against injury or damage to any part thereof by the action of the elements or from any cause whether arising from the execution or nonexecution of the Work and all loss or damage shall be borne by Contractor. The Contractor shall rebuild, repair, restore and make good at its own expense all injuries or damages to any portion of the Work before its completion and acceptance. In the event of damage proximately caused by an Act of God, as defined by Section 7105
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of the Public Contract Code, the City will pay for repair or restoration to damaged Work in excess of 5% of the total Bid.
8.5 Occupancy.
A. The City reserves the right to occupy or utilize any portion of the Work at any time before completion, and such occupancy or use shall not constitute acceptance of any part of Work covered by this Contract. This use shall not relieve the Contractor of its responsibilities under the Contract.
8.6 Securities for Money Withheld.
A. Pursuant to section 22300 of the Public Contract Code of the State of California, Contractor may request the City to make retention payments directly to an escrow agent or may substitute securities for any money withheld by the City to ensure performance under the contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the City or with a state or federally chartered bank as the escrow agent who shall return such securities to Contractor upon satisfactory completion of the contract. Deposit of securities with an escrow agent shall be subject to a written agreement substantially in the form provided in section 22300 of the Public Contract Code.
8.7 The City’s Right to Suspend/Terminate the Contract.
A. Suspension of Work by the City.
1. The City in its sole and absolute discretion for any reason or no reason whatsoever may at any time, with or without cause, suspend performance of all or any part of the Work by giving not less than five (5) Days written notice to the Contractor.
Such notice of suspension of Work will designate the amount and type of plant, labor, and equipment to be committed to the Project during the period of suspension. Contractor shall use its best efforts to utilize its plant, labor, and equipment in such a manner as to minimize costs associated with suspension.
2. Upon receipt of any such notice, Contractor shall, unless the notice requires otherwise: (1) immediately discontinue Work on the date and to the extent specified in the notice; (2) place no further orders or subcontracts for material, services, or facilities with respect to suspended Work other than to the extent required in the notice; (3) promptly make every reasonable effort to obtain suspension upon terms satisfactory to the City of all orders, subcontracts, and rental agreements to the extent they relate to performance of Work suspended; and (4) continue to protect and maintain the Work including those portions on which Work has been suspended.
3. The City shall not be liable for any additional costs, damages or anticipated profits incurred by Contractor or its Subcontractors and the Contract Price shall not be increased during the period of suspension, except the actual costs incurred by Contractor, excluding overhead and profit for (a) the purpose of safeguarding the Work and material and equipment in transit or at the Site during the period of suspension, (b) Contractor’s or its Subcontractor’s rented equipment which are maintained at the Site, or (c) other reasonable and unavoidable costs of shutting
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down the Work, or reassembling personnel and equipment resulting directly from such suspension. Contractor shall be granted an extension of the Contract Time equal to the number of days performance of Work is suspended; provided, however, that no actual costs or extension of Contract Time shall be granted if the suspension results from Contractor's non-compliance with the requirements of the Contract.
B. Termination for Cause by the City.
1. In the sole estimation of the City, if the Contractor refuses or fails to prosecute the Work or any separable part thereof with such diligence as will insure its completion within the time specified by the Contract Documents, or any extension thereof, or fails to complete such Work within such time, or if the Contractor should be adjudged a bankrupt, or if it should make a general assignment for the benefit of its creditors, or if a receiver should be appointed on account of its insolvency, or the Contractor or any of its subcontractors should violate any of the provisions of this Contract, the City may serve written notice upon the Contractor and its surety of the City's intention to terminate this Contract. This notice of intent to terminate shall contain the reasons for such intention to terminate this Contract, and a statement to the effect that the Contractor's right to perform this Contract shall cease and terminate upon the expiration of ten (10) Days unless such violations have ceased and arrangements satisfactory to the City have been made for correction of said violations.
2. After expiration of the ten (10) Day period, the City may terminate the Contract by providing a Notice of Termination to the Contractor. The City may take over and complete the Work by any method it may deem appropriate, including enforcement of the Project performance bond. If the City takes over the Work, the City may, without liability for so doing, take possession of and utilize in completing the Work such materials, appliances, plant, and other property belonging to the Contractor as may be on the Site.
3. Contractor shall not be entitled to receive any further payment hereunder as a result of such termination. Contractor and its surety shall be liable to the City for any excess costs or other damages incurred by the City to complete the Work, including professional services and expenses, reasonable overhead, profit, and attorneys' fees. This payment obligation shall survive completion of the Project and termination or expiration of this Contract.
C. Termination for Convenience by the City:
1. The City may terminate performance of the Work called for by the Contract Documents in whole or, from time to time, in part, upon ten (10) Days written notice if the City determines that a termination is in the City's interest. The Contractor shall terminate all or any part of the Work upon delivery to the Contractor of a Notice of Termination specifying that the termination is for the convenience of the City, the extent of termination, and the effective date of such termination.
2. After receipt of Notice of Termination, and except as directed by the City, the Contractor shall, regardless of any delay in determining or adjusting any amounts due under this termination for convenience clause, immediately proceed with the
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following obligations: (1) stop Work as specified in the Notice; (2) complete any Work specified in the Notice of Termination in a least cost/shortest time manner while still maintaining the quality called for under the Contract Documents; (3) leave the property upon which the Contractor was working and upon which the facility (or facilities) forming the basis of the Contract Document is situated in a safe and sanitary manner such that it does not pose any threat to the public health or safety; (4) terminate all subcontracts to the extent that they relate to the portions of the Work terminated; and (5) place no further subcontracts or orders, except as necessary to complete the continued portion of the Contract.
3. In case of such termination for the City’s convenience, the Contractor shall be entitled to receive payment for Work actually completed by Contractor in conformity with this Contract prior to Contractor’s receipt of City’s Notice and costs incurred by reason of such termination. Any documentation substantiating costs incurred by the Contractor solely as a result of the City's exercise of its right to terminate this Contract pursuant to this clause, which costs the Contractor is authorized under the Contract documents to incur, shall: (1) be submitted to and received by the City no later than 30 Days after the effective date of the Notice of Termination; (2) describe the costs incurred with particularity; and (3) be conspicuously identified as “Termination Costs occasioned by the City's Termination for Convenience.” If the City rejects any costs, Contractor shall be deemed to waive the rejected costs unless Contractor files a Claim within thirty (30) Days of the rejection pursuant to Article 9.2.
4. Contractor shall be entitled to receive only the amounts payable under this Article, and Contractor specifically waives any claim for any other amounts or damages, including, but not limited to, any claim for consequential damages or lost profits.
The provisions in this Article are in addition to and not in limitation of any other rights or remedies available to the City.
5. Termination of the Contract shall not relieve surety of its obligation for any just claims arising out of or relating to the Work performed.
6. Notwithstanding any other provision of this Article, when immediate action is necessary to protect life and safety or to reduce significant exposure or liability, the City may immediately order Contractor to cease Work on the Project until such safety or liability issues are addressed to the satisfaction of the City or the Contract is terminated.
7. If the City terminates Contractor for cause, and if it is later determined that the termination was wrongful, such default termination shall automatically be converted to and treated as a termination for convenience. In such event, Contractor shall be entitled to receive only the amounts payable under this Article, and Contractor specifically waives any claim for any other amounts or damages, including, but not limited to, any claim for consequential damages or lost profits.
8.8 Defective Work.
A. The City May Correct Defective Work.
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1. If Contractor fails to correct Defective Work, or to remove and replace rejected Work as required by the City, or if Contractor fails to perform the Work in accordance with the Contract Documents, or if Contractor fails to comply with any other provision of the Contract Documents, the City may, after seven (7) Days written notice to Contractor, correct, or remedy any such deficiency.
2. In connection with such corrective or remedial action, the City may exclude Contractor from all or part of the Site, take possession of all or part of the Work and suspend Contractor’s services related thereto, take possession of Contractor’s tools, appliances, construction equipment and machinery at the Site, and incorporate in the Work all materials and equipment stored at the Site or for which the City has paid Contractor but which are stored elsewhere. Contractor shall allow the City, and the agents, employees, other contractors, and consultants of each of them, access to the Site to enable the City to exercise the rights and remedies to correct the Defective Work.
3. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred or sustained by the City correcting the Defective Work will be charged against Contractor, and a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and the City shall be entitled to an appropriate decrease in the Contract Price. Such claims, costs, losses and damages will include but not be limited to all costs of repair, or replacement of work of others destroyed or damaged by correction, removal, or replacement of defective Work.
4. If the Change Order is executed after all payments under the Contract have been paid by the City and the Project retention is held in an escrow account as permitted by the Contract Documents, Contractor will promptly alert the escrow holder, in writing, of the amount of retention to be paid to the City. If the Change Order is executed after release of the Project retention, an appropriate amount will be paid by Contractor to the City. Contractor shall not be allowed an extension of the Contract Time because of any delay in the performance of the Work attributable to the City correcting Defective Work.
B. Acceptance of Defective Work.
1. If, instead of requiring correction or removal and replacement of defective Work, the City prefers to accept it, the City may do so. Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) attributable to the City’s evaluation of and determination to accept such defective Work and for the diminished value of the Work. If any acceptance of Defective Work occurs prior to release of the Project retention, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and the City shall be entitled to an appropriate decrease in the Contract Price, reflecting the diminished value of Work and all costs incurred by the City. If the acceptance of defective occurs after release of the Project retention, an appropriate amount will be paid by Contractor to the City.
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8.9 Completion and Acceptance of Work.
A. Final Inspection. Upon written notice from Contractor that the entire Work is complete, the Engineer will promptly make a final inspection with the City and Contractor and will notify Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. Contractor shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies.
B. Final Acceptance. The acceptance of the Work on behalf of the City will be made by the Engineer. Such acceptance by the City shall not constitute a waiver of defects. After Contractor has, in the opinion of the Engineer, satisfactorily completed all corrections identified during the final inspection and has delivered, in accordance with the Contract Documents, all maintenance and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurance, certificates of inspection, Record Documents, and other documents required by the Contract Documents, the City shall execute a Notice of Completion, constituting final acceptance and completion of the Project, except as may be expressly noted.
8.10 Guarantee of Work.
A. Neither the final payment nor any provision in the Contract Documents shall relieve Contractor of responsibility for faulty materials or workmanship. Contractor hereby guarantees that materials and Work shall be completed in conformance with the Contract Documents and that the materials and Work provided will fulfill the requirements of this guarantee. Contractor hereby agrees to repair or replace, at the discretion of the City, any or all Work that may prove to be defective in its workmanship, materials furnished, methods of installation or fail to conform to the Contract Document requirements together with any other Work which may be damaged or displaced by such defect(s) within a period of one (1) year (or as otherwise indicated in the Contract Documents or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the Work, whichever is later) from the date of the Notice of Completion of the Project without any expense whatever to the City, ordinary wear and tear and unusual abuse and neglect excepted. Contractor shall be required to promptly repair or replace defective equipment or materials, at Contractor’s option. The Contractor shall remedy at its expense any damage to City-owned or controlled real or personal property. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor.
B. For any Work so corrected, Contractor’s obligation hereunder to correct defective Work shall be reinstated for an additional one (1) year period, commencing with the date of acceptance of such corrected Work. The reinstatement of the one (1) year warranty shall apply only to that portion of Work that was corrected. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract Documents. In the event of Contractor’s failure to comply with the above-mentioned conditions within ten (10) Days after being notified in writing of required repairs, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming Work and any
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work damaged by such work or the replacement or correction thereof at Contractor’s sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder immediately upon demand.
C. In addition to the warranty set forth in this Article, Contractor shall obtain for the City all warranties that would be given in normal commercial practice and assign to the City any and all manufacturer’s or installer’s warranties for equipment or materials not manufactured by Contractor and provided as part of the Work, to the extent that such third-party warranties are assignable and extend beyond the warranty period set forth in this Article. Contractor shall furnish the City with all warranty and guarantee documents prior to final acceptance of the Project by the City as required.
D. When specifically indicated in the Contract Documents or when directed by the Engineer, the City may furnish materials or products to the Contractor for installation.
In the event any act or failure to act by Contractor shall cause a warranty applicable to any materials or products purchased by the City for installation by the Contractor to be voided or reduced, Contractor shall indemnify the City from and against any cost, expense, or other liability arising therefrom, and shall be responsible to the City for the cost of any repairs, replacement or other costs that would have been covered by the warranty but for such act or failure to act by Contractor.
E. The City shall notify the Contractor, in writing, within a reasonable time after the discovery of any failure, defect, or damage. The Contractor shall within ten (10) Days after being notified commence and perform with due diligence all necessary work to remedy the failure, defect, or damage. If the Contractor fails to promptly remedy any defect or damage, the City shall have the right to replace, repair or otherwise remedy the defect, or damage at the Contractor’s expense.
F. In the event of any emergency constituting an immediate hazard to health, safety, property, or licensees, when caused by Work of the Contractor not in accordance with the Contract requirements, the City may undertake at Contractor’s expense, and without prior notice, all Work necessary to correct such condition.
G. This Article shall not limit City’s rights under this Contract or with respect to latent defects, gross mistakes, or fraud. Nothing in the warranty or in the Contract Documents shall be construed to limit the rights and remedies available to the City at law or in equity, including, but not limited to, Code of Civil Procedure section 337.15.
ARTICLE 9 -CHANGE ORDERS; DISPUTE RESOLUTION
9.1 Change Orders and Time Extensions.
A. Change Orders. All changes to the Contract, including compensation increases and time extensions, shall be through a written Change Order in accordance with this Article. The City, without invalidating the Contract, may order changes in the Work consisting of additions, deletions or other revisions, and Contractor’s compensation and the time for completion shall be adjusted accordingly. Whenever any change is made as provided for herein, such change shall be considered and treated as though originally included in the Contract, and shall be subject to all terms, conditions, and provisions of the original Contract. Contractor shall not be entitled to claim or bring suit
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for damages, whether for loss of profits or otherwise, on account of any decrease or omission of any item or portion of Work to be done. No dispute, disagreement, or failure of the parties to reach agreement on the terms of the Change Order shall relieve the Contractor from the obligation to proceed with performance of the Work, including Additional Work, promptly and expeditiously. Any alterations, extensions of time, Additional Work, or any other changes may be made without securing consent of the Contractor’s surety or sureties.
B. City Directive. The City may direct changes in the Work by delivering a written directive. To the extent the work directive results in a change to compensation or time, Contractor must timely request a Change Order and comply with all Change Order procedures in accordance with this Article. Notwithstanding issuance of a work directive, Contractor’s failure to timely request a Change Order shall constitute a waiver by Contractor of any adjustment to compensation or time extension for Work performed under the directive. The City shall not be liable to Contractor for Work performed or omitted by Contractor in reliance on verbal orders.
C. Contractor’s Notice of Change/Delay. If Contractor intends to initiate a Change Order Request, then Contractor shall provide the City with written notice of the underlying facts and circumstances that gave rise to the proposed change within the following times:
1. If due to unknown subsurface or latent physical conditions, within three (3) days from the discovery date or prior to the alterations of the conditions, whichever is earlier.
2. If due to a Force Majeure Event, as soon as reasonably practicable under the conditions, which shall be no longer than three (3) days from the date the Contractor discovers that the Force Majeure Event gives rise to a change, unless that the conditions are such that notice within three (3) days is not possible or practicable.
3. If due to any other matter that may involve an adjustment to the Contract Time or the Contract Price, within seven (7) Days from the discovery date.
To be considered valid and complete, the notice of change/delay shall include a general statement of the circumstances giving rise to the notice of change/delay and a reasonable order of magnitude estimate of the additional costs and/or time.
If the circumstances give rise to both a cost adjustment and time extension, Contractor shall submit the notice of change and notice of delay concurrently.
D. Request for Change in Compensation and/or Extension of Time. Contractor shall submit a Change Order Request for any adjustment to Contractor’s compensation and/or any extension of time. The Change Order Request shall be made prior to incurring any expense and within fourteen (14) Days from either Contractor’s notice of change/delay or the City’s directive ordering the change. For any costs or information that cannot be determined at the time Contractor submits the Change Order Request, Contractor shall submit to the City notice of the costs or information and all supporting documentation within five (5) Days of when the costs or other information become subject to determination. The Change Order Request shall include all of the following information (unless inapplicable to the change):
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1. A detailed description of the circumstances giving rise to the request;
2. A complete itemized cost proposal, including itemized pricing for first tier Subcontractors;
3. Supporting documentation for all costs;
4. A time impact analysis showing the impact of the delay to the critical path to completion;
5. If any added costs or information cannot be determined at the time of the Change Order Request, the reason the costs or information cannot be determined at the time; and
6. Certification to the accuracy of the Change Order Request under penalty of perjury.
The time impact analysis shall be in the critical path method format and shall show the sequencing of all critical and non-critical new activities and/or activity revisions affected by the delay, with logic ties to all affected existing activities noted on the schedule. The City may demand, and Contractor shall provide, any additional information supporting the Change Order Request, including but not limited to native electronic format version of schedules and time impact analyses. Contractor shall provide the requested additional information within five (5) Days of the request.
E. City’s Final Decision on Change Order; Ordered Changes. If the City denies the Change Order Request or disagrees with the proposal submitted by Contractor, it will notify the Contractor, and the City will provide its opinion of the appropriate price and/or time extension. If no agreement can be reached, the City shall have the right to order the Work performed on a time and materials basis or to issue a unilateral Change Order setting forth the City’s determination of the reasonable additions or savings in costs and time attributable to the extra or deleted work. The City shall also have the right to order changes in the Work to be performed promptly by the Contractor on a time and materials basis or to issue a unilateral Change Order setting forth the City’s determination of the reasonable additions or savings in costs and time attributable to the extra or deleted work. The City’s determination shall become final and binding if the Contractor fails to submit a claim in writing in accordance with Article 9.2 to the City within fourteen (14) Days of the issuance of the unilateral Change Order, disputing the terms of the unilateral Change Order and providing such supporting documentation for its position as the City may reasonably require.
F. Contractor’s Waiver of Further Relief.
1. Contractor recognizes and acknowledges that timely submission of a formal written notice of change/delay and Change Order Request, whether or not the circumstances of the change may be known to the City or available to the City through other means, is not a mere formality but is of crucial importance to the ability of the City to promptly identify, prioritize, evaluate and mitigate the potential effects of changes. Any form of informal notice, whether verbal or written (including, without limitation, statements in requests for information, statements in Submittals, statements at any job meeting or entries on monthly reports, daily logs
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or job meeting minutes), that does not strictly comply with the formal requirements of this Article, shall accordingly be insufficient.
2. CONTRACTOR’S FAILURE TO PROVIDE A COMPLETE AND TIMELY NOTICE
OF CHANGE/DELAY AND/OR CHANGE ORDER REQUEST, OR TO COMPLY
WITH ANY OTHER REQUIREMENT OF THIS ARTICLE, SHALL CONSTITUTE
A WAIVER BY CONTRACTOR OF THE RIGHT TO A CONTRACT
ADJUSTMENT ON ACCOUNT OF SUCH CIRCUMSTANCES AND A WAIVER
OF ANY RIGHT TO FURTHER RECOURSE OR RECOVERY BY REASON OF
OR RELATED TO SUCH CHANGE BY MEANS OF THE CLAIMS DISPUTE
RESOLUTION PROCESS OR BY ANY OTHER LEGAL PROCESS OTHERWISE PROVIDED FOR UNDER APPLICABLE LAWS.
G. Change Order Format. A Change Order signed by the Contractor indicates the Contractor's agreement therewith, including any adjustment in compensation or extension of time, and the full and final settlement of all costs (direct, indirect and overhead) related to the Work authorized by the Change Order. The City may designate the forms to be used for notices, requests, and Change Orders. If so designated, Contractor may only use such forms. Contractor shall not reserve a right to assert impact costs, extended job site costs, extended overhead, constructive acceleration and/or actual acceleration beyond what is stated in the Change Order.
No Claims shall be allowed for impact, extended overhead costs, constructive acceleration and/or actual acceleration due to a multiplicity of changes and/or clarifications. The Contractor may not change or modify the City’s Change Order form in an attempt to reserve additional rights.
H. Determining Adjustments to Compensation.
1. Limitation on Costs. Contractor shall not be entitled to any compensation for Work subject to a Change Order except as expressly set forth in this Article. The markup added in instances of Additional Work shall constitute the entire amount of profit, any mark-ups, any field or home office overhead costs, including personnel, equipment or office space, any materials, or any costs of equipment idle time for such Work.
2. Unit Price Change Orders.
a. When the actual quantity of a Unit Price Work item varies from the Bid Schedule, compensation for the change in quantity will be calculated by multiplying the actual quantity by the unit price. This calculation may result in either an additive or deductive Change Order. Bid items included on the Bid Schedule may be deducted from the Work in their entirety without any negotiated extra costs.
Because Unit Price Work includes overhead and profit as determined by Contractor at the time of its Bid submission, no mark up or deduction for overhead and profit will be allowed.
b. The City or Contractor may initiate a Change Order or Change Order Request to adjust the Contract Price in accordance with Contractor Documents based on actual quantities of Unit Price Work. The City or Contractor may make a claim for an adjustment in the Unit Price in accordance with the Contract Documents if: (1) the quantity of any item of Unit Price Work performed by Contractor differs by
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twenty-five percent (25%) or more from the estimated quantity of such item indicated in the Contract; (2) there is no corresponding adjustment with respect to any other item of Work; and (3) Contractor believes that Contractor is entitled to an increase in unit price as a result of having incurred additional expense or the City believes that the City is entitled to a decrease in unit price and the parties are unable to agree as to the amount of any such increase or decrease.
3. Lump Sum Change Orders. Whenever possible, any changes affecting compensation shall be in a lump sum mutually agreed by the Contractor and the City.
4. Time and Materials Change Orders. The City may direct the Contractor to proceed with the Additional Work with payment to be made on the basis of actual cost of the labor and materials required to complete the Additional Work. If the Project is federally funded, a time and materials Change Order shall only be issued after a determination that no other Change Order is suitable and the Change Order shall include a ceiling price that the Contractor exceeds at its own risk.
5. Federally Funded Projects. For any change in price to the Contract, general and administrative expenses shall be negotiated and must conform to the cost principles set forth under at 2 C.F.R. Part 200, subpart E, and profit shall be negotiated as a separate element of the cost. To establish a fair and reasonable profit, consideration must be given to the complexity of the Additional Work to be performed, the risk borne by the Contractor, the Contractor's investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work.
6. Allowed Costs. Estimates for lump sum quotations and accounting for time-andmaterial work shall be limited to direct expenditures necessitated specifically by the change and shall be segregated as follows:
a. Labor. The costs of labor will be the actual cost for wages prevailing locally for each craft or type of worker at the time the work is done, plus employer payments of payroll taxes and insurance, health and welfare, pension, vacation, apprenticeship funds, and other direct costs resulting from federal, state or local laws, as well as assessment or benefits required by lawful collective bargaining agreements. The use of a labor classification which would increase the cost will not be permitted unless the Contractor establishes the necessity for such additional costs. Labor costs for equipment operators and helpers shall be reported only when such costs are not included in the invoice for equipment rental.
Estimated labor hours must only include hours for those workmen and working foremen directly involved in performing the change order work. Supervision above the level of working foremen (such as general foremen, superintendent, project manager, etc.) is considered to be included in the markup percentages as outlined below. Note that no separate allowances for warranty expense will be allowed as a direct cost of a change order. Costs attributed to warranty expenses will be considered to be covered by the markup. Labor burden allowable in Change Orders shall be defined as employer's net actual cost of payroll taxes (FICA, Medicare, SUTA, FUTA), net actual cost for employer's cost of union benefits (or other usual and customary fringe benefits if the employees are not union employees), and net actual cost to employer for worker's compensation insurance
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taking into consideration adjustments for experience modifiers, premium discounts, dividends, rebates, expense constants, assigned risk pool costs, net cost reductions due to policies with deductibles for self-insured losses, assigned risk rebates, etc. Contractor shall reduce their standard payroll tax percentages to properly reflect the effective cost reduction due to the estimated impact of the annual maximum wages subject to payroll taxes. An estimated percentage for labor burden may be used for pricing change orders. However, the percentage used for labor burden to price Change Orders will be examined at the conclusion of the Project and an adjustment to the approved Change Orders will be processed if it is determined that the actual labor burden percentage should have been more or less than the estimated percentage used.
b. Materials. The cost of materials reported shall be at the lowest current price at which such materials are locally available in the quantities involved, plus sales tax, freight and delivery. Materials costs shall be based upon Supplier or manufacturer’s invoice.
c. Tool and Equipment Use. Regardless of ownership, the rates to be used in determining equipment use shall not exceed listed rates prevailing locally at equipment rental agencies, or distributors, at the time the work is performed. The Contractor shall furnish cost data supporting the establishment of the rental rate.
The rental rate to be applied for use of each items of equipment shall be the rate resulting in the least total cost to the City for the total period of use. The City shall make the final determination as to an equitable rental rate for the equipment. No payment will be made for the use of small tools, which have a replacement value of $1,000 or less. The rental time to be paid for equipment shall be the time the equipment is in productive operation on the Additional Work being performed.
Rental time will not be allowed while equipment is inoperative due to breakdowns.
All equipment shall, in the opinion of the City, be in good working condition and suitable for the purpose for which the equipment is to be used. Equipment with no direct power unit shall be powered by a unit of at least the minimum rating recommended by the manufacturer. Before construction equipment is used on any Additional Work, the Contractor shall plainly stencil or stamp an identifying number thereon at a conspicuous location, and shall furnish to the City, in duplicate, a description of the equipment and its identifying number. When hourly rates are listed, any part of an hour less than 30 minutes of operation shall be considered to be 1/2-hour of operation, and any part of an hour greater than 30 minutes will be considered one hour of operation. When daily rates are listed, any part of a day less than 4 hours operation shall be considered to be 1/2-day of operation.
7. Allowed Mark-up. The allowed mark-up for any and all overhead (including supervision and home and field office costs) and profit on work added to the Contract shall be determined in accordance with the following provisions:
a. “Net Cost” is defined as the actual costs of labor, materials and tools and equipment only, excluding overhead and profit. The costs of applicable insurance and bond premium will be reimbursed to the Contractor and Subcontractors at cost only, without mark-up. Contractor shall provide the City with documentation of the costs, including but not limited to payroll records, invoices, and such other information as the City may reasonably request.
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b. For Work performed by the Contractor’s forces the allowed mark-up shall not exceed fifteen (15%) percent of labor costs, ten percent (10%) of material costs, and ten percent (10%) of the cost of tools and equipment use. c. For Work performed by a Subcontractor, the added cost for overhead and profit shall not exceed fifteen percent (15%) of the Subcontractor’s Net Cost of the Work to which the Contractor may add up to five percent (5%) of the Subcontractor’s Net Cost.
d. For Work performed by a sub-subcontractor, the added cost for overhead and profit shall not exceed fifteen percent (15%) of the sub-subcontractor’s Net Cost for Work to which the Subcontractor and Contractor may each add up to an additional five percent (5%) of the Net Cost of the lower tier subcontractor. e. No additional mark-up will be allowed for lower tier subcontractors, and in no case shall the added cost for overhead and profit payable by the City exceed twentyfive percent (25%) of the Net Cost as defined herein, of the party that performs the Work.
8. Documentation of Time-and-Material Costs.
a. T&M Daily Sheets. Contractor must submit timesheets, materials invoices, records of equipment hours, and records of rental equipment hours to the City’s for an approval signature each day that Work is performed on a time-and-material basis.
The Engineer’s signature on time sheets only serves as verification that the Work was performed and is not indicative of the City’s agreement to Contractor’s entitlement to the cost.
b. T&M Summary Sheet. Contractor shall submit a T&M Summary Sheet, which shall include total actual costs, within five (5) Days following completion of Additional Work on a time-and-material basis. Contractor’s total actual cost shall be presented in a summary table in an electronic spreadsheet file by labor, material, equipment, and any other costs, along with documentation supporting the costs.
Contractor’s failure to submit the T&M Summary Sheet within five (5) Days of completion of the Additional Work will result in Contractor’s waiver for any reimbursement of any costs associated with the Additional Work.
9. Excluded Costs. The following costs or any other home or field office overhead costs, all of which are to be considered administrative costs covered by the Contractor’s mark-up, shall not be allowed costs and shall not be included in any lump sum proposals or time-and-materials invoices:
a. Overhead Cost. Payroll costs and other compensation of Contractor’s officers, executives, principals, general managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, timekeepers, clerks, and other personnel employed by Contractor whether at the Site or in Contractor’s principal office or any branch office, material yard, or shop for general administration of the Work;
b. Office Expenses. Expenses of Contractor’s principal and branch offices;
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c. Capital Expenses. Any part of Contractor’s capital expenses, including interest on Contractor’s capital employed for the Additional Work and charges against Contractor for delinquent payments;
d. Negligence. Costs due to the negligence of Contractor or any Subcontractor or Supplier, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including without limitation the correction of Defective Work, disposal of materials or equipment wrongly supplied, and making good any damage to property;
e. Small Tools. Cost of small tools valued at less than $1,000 and that remain the property of Contractor;
f. Administrative Costs. Costs associated with the preparation of Change Orders (whether or not ultimately authorized), cost estimates, or the preparation or filing of Claims;
g. Anticipated Lost Profits. Expenses of Contractor associated with anticipated lost profits or lost revenues, lost income or earnings, lost interest on earnings, or unpaid retention;
h. Home Office Overhead. Costs derived from the computation of a “home office overhead” rate by application of the Eichleay, Allegheny, burden fluctuation, or other similar methods;
i. Special Consultants and Attorneys. Costs of special consultants or attorneys, whether or not in the direct employ of Contractor, employed for services specifically related to the resolution of a Claim, dispute, or other matter arising out of or relating to the performance of the Additional Work.
j. Other. Other overhead or general expense costs of any kind and the cost of any item not specifically and expressly included in the Contract Documents; including but not limited to: submittals, drawings, field drawings, shop drawings, including submissions of drawings; field inspection; general superintendence; computer services; reproduction services; salaries of project engineer, superintendent, timekeeper, storekeeper, and secretaries; janitorial services; small tools, incidentals and consumables; temporary on-site facilities (offices, telephones, high speed internet access, plumbing, electrical power, lighting; platforms, fencing, water); surveying; estimating; protection of work; handling and disposal fees; final cleanup; other incidental work; related warranties; insurance and bond premiums.
9.2 Procedure for Resolving Claims.
A. Prerequisites. Contractor shall timely comply with any and all requirement of the Contract Documents pertaining to notices and requests for changes to the Contract Time or Contract Price, including but not limited to all requirements of Article 9.1, as a prerequisite to filing any claim governed by this Article. The failure to timely submit a notice of delay or notice of change, or to timely request a change to the time for completion or Contractor’s compensation, or to timely provide any other notice or request required herein shall constitute a waiver of the right to further pursue the claim under the Contract or at law.
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B. Intent. Effective January 1, 1991, Section 20104 et seq., of the California Public Contract Code prescribes a process utilizing informal conferences, non-binding judicial supervised mediation, and judicial arbitration to resolve disputes on construction claims of $375,000 or less. Effective January 1, 2017, Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims. The intent of this Article is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code.
This Article shall be construed to be consistent with all applicable law, including but not limited to these statutes.
C. Claims. For purposes of this Article, “Claim” means a separate demand by the Contractor for:
1. An adjustment to the time for completion including, without limitation, for relief from damages or penalties for delay assessed by the City;
2. Payment by the City of money or damages arising from Work done by or on behalf of the Contractor pursuant to the Contract, payment for which is not otherwise expressly provided or to which the Contractor is not otherwise entitled; or
3. An amount the payment of which is disputed by the City.
A “Claim” does not include any demand for payment for which the Contractor has failed to provide notice, request a Change Order, or otherwise failed to follow any procedures contained in the Contract Documents.
D. Filing Claims. Claims governed by this Article may not be filed unless and until the Contractor completes any and all requirements of the Contract Documents pertaining to notices and requests for changes to the Contract Time or Contract Price, and Contractor’s request for a change has been denied in whole or in part.
Claims governed by this Article must be filed no later than thirty (30) Days after a request for change has been denied in whole or in part or after any other event giving rise to the Claim. The Claim shall be submitted in writing to the City and shall include on its first page the following words in 16 point capital font: “THIS IS A CLAIM.” The Claim shall include the all information and documents necessary to substantiate the Claim, including but not limited to those identified below. Nothing in this Article is intended to extend the time limit or supersede notice requirements otherwise provided by Contract Documents. Failure to follow such contractual requirements shall bar any Claims or subsequent proceedings for compensation or payment thereon.
E. Documentation. The Contractor shall submit all Claims in the following format:
1. Summary description of Claim including basis of entitlement, merit and amount of time or money requested, with specific reference to the Contract Document provisions pursuant to which the Claim is made
2. List of documents relating to Claim:
a. Specifications
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b. Drawings
c. Clarifications (Requests for Information)
d. Schedules
e. Other
3. Chronology of events and correspondence
4. Narrative analysis of Claim merit
5. Analysis of Claim cost, including calculations and supporting documents
6. Time impact analysis in the form required by the Contract Documents or, if the Contract Documents do not require a particular format, CPM format, if an adjustment of the Contract Time is requested
F. City’s Response. Upon receipt of a Claim pursuant to this Article, the City shall conduct a reasonable review of the Claim and, within a period not to exceed 45 Days, shall provide the Contractor a written statement identifying what portion of the Claim is disputed and what portion is undisputed. Any payment due on an undisputed portion of the Claim will be processed and made within 60 Days after the City issues its written statement.
1. If the City needs approval from its governing body to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the Claim, and the City’s governing body does not meet within the 45 Days or within the mutually agreed to extension of time following receipt of a Claim sent by registered mail or certified mail, return receipt requested, the City shall have up to three (3) Days following the next duly publicly noticed meeting of the City’s governing body after the 45-Day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputed portion.
2. Within 30 Days of receipt of a Claim, the City may request in writing additional documentation supporting the Claim or relating to defenses or Claims the City may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of the City and the Contractor. The City’s written response to the Claim, as further documented, shall be submitted to the Contractor within 30 Days (if the Claim is less than $50,000, within 15 Days) after receipt of the further documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation, whichever is greater.
G. 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
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dispute. Upon receipt of a demand, the City shall schedule a meet and confer conference within 30 Days for settlement of the dispute.
H. Mediation. Within 10 business days following the conclusion of the meet and confer conference, if the Claim or any portion of the Claim remains in dispute, the City shall provide the Contractor a written statement identifying the portion of the Claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the Claim shall be processed and made within 60 Days after the City issues its written statement. Any disputed portion of the Claim, as identified by the Contractor in writing, shall be submitted to nonbinding mediation, with the City and the Contractor sharing the associated costs equally. The public entity and Contractor shall mutually agree to a mediator within 10 business days after the disputed portion of the Claim has been identified in writing, unless the parties agree to select a mediator at a later time.
1. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the Claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator.
2. For purposes of this Article, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this Article.
3. Unless otherwise agreed to by the City and the Contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced.
4. The mediation shall be held no earlier than the date the Contractor completes the Work or the date that the Contractor last performs Work, whichever is earlier. All unresolved Claims shall be considered jointly in a single mediation, unless a new unrelated Claim arises after mediation is completed.
I. Procedures After Mediation. If following the mediation, the Claim or any portion remains in dispute, the Contractor must file a Government Code 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.
J. Civil Actions. The following procedures are established for all civil actions filed to resolve Claims of $375,000 or less:
1. Within 60 Days, but no earlier than 30 Days, following the filing or responsive pleadings, the court shall submit the matter to non-binding mediation unless waived by mutual stipulation of both parties or unless mediation was held prior to
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commencement of the action in accordance with Public Contract Code section 9204 and the terms of this Contract. The mediation process shall provide for the selection within 15 Days by both parties of a disinterested third person as mediator, shall be commenced within 30 Days of the submittal, and shall be concluded within 15 Days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court.
2. If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The Civil Discovery Act of 1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration. In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced in construction law, and (B) any party appealing an arbitration award who does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, also pay the attorney’s fees on appeal of the other party.
K. Government Code Claim Procedures.
1. This Article does not apply to tort claims and nothing in this Article is intended nor shall be construed to change the time periods for filing tort claims or actions specified by Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.5 of Title 1 of the Government Code.
2. In addition to any and all requirements of the Contract Documents pertaining to notices of and requests for adjustment to the Contract Time, Contract Price, or compensation or payment for Additional Work, disputed Work, construction claims and/or changed conditions, the Contractor must comply with the claim procedures set forth in Government Code Section 900, et seq. prior to filing any lawsuit against the City.
3. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to adjustment of the Contract Time or Contract Price for Additional Work, disputed Work, construction claims, and/or changed conditions have been followed by Contractor. If Contractor does not comply with the Government Code claim procedure or the prerequisite contractual requirements, Contractor may not file any action against the City.
4. A Government Code claim must be filed no earlier than the date the Work is completed or the date the Contractor last performs Work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved Claims known to Contractor or that should reasonably by known to Contractor excepting only new unrelated Claims that arise after the Government Code claim is submitted.
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L. Non-Waiver. The City’s failure to respond to a Claim from the Contractor within the time periods described in this Article or to otherwise meet the time requirements of this Article shall result in the Claim being deemed rejected in its entirety, and shall not constitute a waiver of any rights under this Article.
ARTICLE 10 - MEASUREMENT; PAYMENT
10.1 Cost Breakdown.
A. Lump Sum Work. Contractor shall furnish on forms approved by the City within ten (10) Days of the Notice to Proceed, a schedule of values allocating the entire Contract Price to the various portions of the Work and prepared in such a form and supported by such data to substantiate its accuracy as the Engineer may require.
This schedule of values, unless objected to by the Engineer, shall be used as a basis for reviewing the Contractor’s applications for payment. Contractor shall submit the schedule of values prior to submitting its first application for payment, and the City will not issue any payment until it receives and approves the schedule of values.
B. Unit Price Work. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the unit price for each separately identified item of Unit Price Work multiplied by the estimated quantity of each item as indicated in the Contract. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Each unit price will be deemed to include an amount considered by Contractor to be adequate to cover Contractor’s overhead and or profit for each separately identified item. Unless otherwise specified, payment will be based on the actual quantities of Work as verified and approved by the Engineer, based on the price per unit as set forth in the Bid Schedule.
10.2 Progress Estimates and Payment.
A. By the tenth (10th) Day of the following calendar month, Contractor shall submit to Engineer a payment request which shall set forth in detail the value of the Work done for the period beginning with the date Work was first commenced and ending on the end of the calendar month for which the payment request is prepared. Contractor shall include an adjusted list of actual quantities, verified by the Engineer, for unit price items listed, if any, in the Bid. Contractor shall include any amount earned for authorized Change Orders. Contractor shall certify under penalty of perjury, that all cost breakdowns and periodic estimates accurately reflect the Work on the Project.
B. From the total thus computed, a deduction shall be made in the amount of five percent (5%) for retention, except where the City has adopted a finding that the Work done under the Contract is substantially complex, and then the amount withheld as retention shall be the percentage specified in the Notice Inviting Bids. The amount computed, less the amount withheld for retention and any amounts withheld as set forth below, shall be the amount of the Contractor’s payment request.
C. The City may withhold a sufficient amount or amounts of any payment or payments otherwise due to Contractor, as in its judgment may be necessary to cover:
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1. Payments which may be past due and payable for just claims against Contractor or any Subcontractors for labor or materials furnished in and about the performance of work on the Project under this Contract.
2. Defective Work not remedied.
3. Failure of Contractor to make proper payments to his Subcontractor or for material or labor.
4. Completion of the Contract if there is a reasonable doubt that the Work can be completed for balance then unpaid.
5. Damage to another contractor or a third party.
6. Amounts which may be due the City for claims against Contractor.
7. Failure of Contractor to keep the Record Drawings up to date.
8. Failure to provide update on construction schedule as required herein.
9. Site cleanup.
10. Failure to comply with Contract Documents.
11. Liquidated damages.
12. Legally permitted penalties.
D. The City may apply such withheld amount or amounts to payment of such claims or obligations at its discretion with the exception of subsections (C)(1), (3), and (5) of this Article, which must be retained or applied in accordance with applicable law. In so doing, the City shall be deemed the agent of Contractor and any payment so made by the City shall be considered as a payment made under contract by the City to Contractor and the City shall not be liable to Contractor for such payments made in good faith. Such payments may be made without prior judicial determination of claim or obligations. The City will render Contractor a proper accounting of such funds disbursed on behalf of Contractor.
E. Upon receipt, the Engineer shall review the payment request to determine whether it is undisputed and suitable for payment. If the payment request is determined to be unsuitable for payment, it shall be returned to Contractor as soon as practicable but not later than seven (7) Days after receipt, accompanied by a document setting forth in writing the reasons why the payment request is not proper. The City shall make the progress payment within 30 Days after the receipt of an undisputed and properly submitted payment request from Contractor, provided that a release of liens and claims has been received from the Contractor pursuant to Civil Code section 8132. The number of days available to the City to make a payment without incurring interest pursuant to this paragraph shall be reduced by the number of Days by which the Engineer exceeds the seven (7) Day requirement.
J – Page 386 of 1899
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F. A payment request shall be considered properly executed if funds are available for payment of the payment request and payment is not delayed due to an audit inquiry by the financial officer of the City.
G. The City shall have the right to adjust any estimate of quantity and to subsequently correct any error made in any estimate for payment.
10.3 Final Acceptance and Payment
A. Following the City’s acceptance of the Work, the Contractor shall submit to the City a written statement of the final quantities of unit price items for inclusion in the final payment request. The City shall have the right to adjust any estimate of quantity and to correct any error made in any estimate for payment.
B. When the Work has been accepted there shall be paid to Contractor a sum equal to the Contract Price less any amounts previously paid Contractor and less any amounts withheld by the City from Contractor under the terms of the Contract. The final five percent (5%), or the percentage specified in the Notice Inviting Bids where the City has adopted a finding of substantially complete, shall not become due and payable until as required by Public Contract Code section 7107. If the Contractor has placed securities with the City as described herein, the Contractor shall be paid a sum equal to one hundred percent (100%) of the Contract Price less any amounts due the City under the terms of the Contract.
C. Unless Contractor advises the City in writing prior to acceptance of the final five percent (5%) or the percentage specified in the Notice Inviting Bids where the City has adopted a finding of completion, or the return of securities held as described herein, said acceptance shall operate as a release to the City of all claims and all liability to Contractor for all things done or furnished in connection with this Work and for every act of negligence of the City and for all other claims relating to or arising out of this Work. If Contractor advises the City in writing prior to acceptance of final payment or return of the securities that there is a dispute regarding the amount due the Contractor, the City may pay the undisputed amount contingent upon the Contractor furnishing a release of all undisputed claims against the City with the disputed claims in stated amounts being specifically excluded by Contractor from the operation of the release. No payments, however, final or otherwise, shall operate to release Contractor or its sureties from the faithful performance bond, labor and material payment bond, or from any other obligation under this Contract.
D. In case of termination of the Contract any unpaid balance shall be and become the sole and absolute property of the City to the extent necessary to repay the City any excess in the cost of the Work above the Contract Price.
E. Final payment shall be made no later than 60 Days after the date of acceptance of the Work by the City or the date of occupation, beneficial use and enjoyment of the Work by the City including any operation only for testing, start-up or commissioning accompanied by cessation of labor on the Work, provided that a release of liens and claims has been received from the Contractor pursuant to Civil Code section 8136.
In the event of a dispute between the City and the Contractor, the City may withhold from the final payment an amount not to exceed 150% of the disputed amount.
J – Page 387 of 1899
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F. Within ten (10) Days from the time that all or any portion of the retention proceeds are received by Contractor, Contractor shall pay each of its Subcontractors from whom retention has been withheld each Subcontractor’s share of the retention received. However, if a retention payment received by Contractor is specifically designated for a particular Subcontractor, payment of the retention shall be made to the designated Subcontractor if the payment is consistent with the terms of the subcontract.
ARTICLE 11 -MISCELLANEOUS
11.1 Patents.
A. Contractor shall hold and save the City, officials, officers, employees, and authorized volunteers harmless from liability of any nature or kind of claim therefrom including costs and expenses for or on account of any patented or unpatented invention, article or appliance manufactured, furnished or used by Contractor in the performance of this Contract.
11.2 Document Retention & Examination
A. In accordance with Government Code section 8546.7, records of both the City and the Contractor shall be subject to examination and audit by the State Auditor General for a period of three (3) years after final payment. Contractor shall make available to the City any of the Contractor’s other documents related to the Project immediately upon request of the City. In addition to the State Auditor rights above, the City shall have the right to examine and audit all books, estimates, records, contracts, documents, bid documents, subcontracts, and other data of the Contractor (including computations and projections) related to negotiating, pricing, or performing the modification in order to evaluate the accuracy and completeness of the cost or pricing data at no additional cost to the City, for a period of four (4) years after final payment.
11.3 Notice.
A. All notices shall be in writing and either served by personal delivery or mailed to the other party. Written notice to the Contractor shall be addressed to Contractor’s principal place of business unless Contractor designates another address in writing for service of notice. Notice to the City shall be addressed to the City as designated in the Notice Inviting Bids unless the City designates another address in writing for service of notice. Notice shall be effective upon receipt or five (5) Days after being sent by first class mail, whichever is earlier. Notice given by facsimile shall not be effective unless acknowledged in writing by the receiving party.
11.4 Notice of Third Party Claims
A. Pursuant to Public Contract Code section 9201, the City shall provide the Contractor with timely notification of the receipt of any third-party claims relating to the Contract.
The City is entitled to recover reasonable costs incurred in providing such notification.
J – Page 388 of 1899
Firing Range and Associated HVAC Renovations -89- 00 72 00 – GENERAL CONDITIONS 55575.18165\44349892.1
11.5 State License Board Notice
A. Contractors are required by law to be licensed and regulated by the Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O. Box 26000, Sacramento, California 95826.
11.6 Assignment of Contract
A. Contractor shall not assign, transfer, convey, sublet or otherwise dispose of the rights or title of interest of any or all of this contract without the prior written consent of the City. Any assignment or change of Contractor’s name of legal entity without the written consent of the City shall be void. Any assignment of money due or to become due under this Contract shall be subject to a prior lien for services rendered or material supplied for performance of Work called for under the Contract Documents in favor of all persons, firms, or corporations rendering such services or supplying such materials to the extent that claims are filed pursuant to the Civil Code, the Code of Civil Procedure or the Government Code.
11.7 Change In Name And Nature Of Contractor’s Legal Entity.
A. Should a change be contemplated in the name or nature of the Contractor’s legal entity, the Contractor shall first notify the City in order that proper steps may be taken to have the change reflected on the Contract and all related documents. No change of Contractor’s name or nature will affect the City’s rights under the Contract, including but not limited to the bonds.
11.8 Prohibited Interests
A. No City official or representative who is authorized in such capacity and on behalf of City to negotiate, supervise, make, accept, or approve, or to take part in negotiating, supervising, making, accepting or approving any engineering, inspection, construction or material supply contract or any subcontract in connection with construction of the project, shall be or become directly or indirectly interested financially in the Contract.
11.9 Controlling Law
A. Notwithstanding any subcontract or other contract with any Subcontractor, Supplier, or other person or organization performing any part of the Work, this Contract shall be governed by the law of the State of California excluding any choice of law provisions.
11.10 Jurisdiction; Venue
A. Contractor and any Subcontractor, Supplier, or other person or organization performing any part of the Work agrees that any action or suits at law or in equity
J – Page 389 of 1899
Firing Range and Associated HVAC Renovations -90- 00 72 00 – GENERAL CONDITIONS 55575.18165\44349892.1
arising out of or related to the bidding, award, or performance of the Work shall be maintained in the Superior Court of Riverside County, California, and expressly consent to the jurisdiction of said court, regardless of residence or domicile, and agree that said court shall be a proper venue for any such action.
11.11 Cumulative Remedies.
A. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Applicable Laws, by special warranty or guarantee, or by other provisions of the Contract Documents.
The provisions of this Article will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, and remedy to which they apply.
11.12 Survival of Obligations.
A. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion, and acceptance of the Work or termination or completion of the Contract or termination of the services of Contractor.
11.13 Headings.
A. Article and paragraph headings are inserted for convenience only and do not constitute parts of these General Conditions.
11.14 Assignment of Antitrust Actions
A. In accordance with §7103.5(b) of the California Public Contract Code, Contractor and Subcontractors must conform to the following requirements:
1. In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, Contractor or Subcontractor offer and agree to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under §4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with §16700) of Part 2 of Division 7 of the Business and Professions Code) arising from purchases of goods, services, or materials pursuant to the public works contract or the subcontract.
2. This assignment must be made and become effective at the time the awarding body tenders to Contractor, without further acknowledgment by the parties.
11.15 Other Legal Provisions.
A. Contractor shall give all notices and comply with all federal, state and local laws, ordinances, rules and regulations bearing on conduct of work as indicated and specified by their terms. References to specific laws, rules or regulations in this Contract are for reference purposes only, and shall not limit or affect the applicability
J – Page 390 of 1899
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of provisions not specifically mentioned. If Contractor observes that drawings and specifications are at variance therewith, he shall promptly notify City in writing and any necessary changes shall be adjusted as provided for in this Contract for changes in Work. If Contractor performs any Work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to City, he shall bear all costs arising therefrom.
B. Contractor shall be responsible for familiarity with the Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12101 et seq.). The Work will be performed in compliance with ADA laws, rules and regulations. Contractor shall comply with the Historic Building Code, including, but not limited to, as it relates to the ADA, whenever applicable.
C. Contractor acknowledges and understands that, pursuant to Public Contract Code section 20676, sellers of "mined material" must be on an approved list of sellers published pursuant to Public Resources Code section 2717(b) in order to supply mined material for this Contract.
D. No City official or representative who is authorized in such capacity and on behalf of City to negotiate, supervise, make, accept, or approve, or to take part in negotiating, supervising, making, accepting or approving any engineering, inspection, construction or material supply contract or any subcontract in connection with construction of the Work, shall be or become directly or indirectly interested financially in the Contract.
E. All provisions of law required to be inserted in the Contract or Contract Documents pursuant to any Applicable Laws shall be and are inserted herein. If through mistake, neglect, oversight, or otherwise, any such provision is not herein inserted or inserted in improper form, upon the application of either party, the Contract or Contract Documents shall be changed by City, at no increase in Contract Price or extension in Contract Times, so as to strictly comply with the Applicable Laws and without prejudice to the rights of either party hereunder.
J – Page 391 of 1899
Firing Range and Associated HVAC Renovations 92 00 73 13 - SPECIAL CONDITIONS 55575.18165\44349892.1
00 73 13 – SPECIAL CONDITIONS
ARTICLE 1 -SCOPE OF WORK
1.1 Location of the Project.
A. Palm Springs Police Department, 200 S. Civic Drive, Palm Springs, CA 92262
1.2 Scope of Work.
A. The Scope of Work consists of engineering and project specific design services, procurement and installation of associated HVAC renovations, installation of Fixed Lateral Turning Target System and SmartRange AXIS™ Control System; and system programming, testing and commissioning.
1. ARTICLE 2 -MODIFICATIONS TO THE GENERAL CONDITIONS – INTENTIONALLY
OMITTED
2.1 Article 5.22 Submittals.
Article 5.22 of the General Conditions shall be deleted in its entirety and replaced with the following:
“5.22 Submittals.
_____________________________”
2.2 Article 5.22 Submittals.
The first sentence in Article 5.17 (A) of the General Conditions shall be deleted in its entirety and replaced with the following:
“_____________________________”
END OF SPECIAL CONDITIONS
J – Page 392 of 1899
Firing Range and Associated HVAC Renovations 93 SPECIFICATIONS 55575.18165\44349892.1
TECHNICAL SPECIFICATIONS
"THE FOLLOWING SPECIFICATIONS ARE INCORPORATED HEREIN BY REFERENCE AS IF SET FORTH IN THEIR ENTIRETY:
DIVISION 01 – GENERAL REQUIREMENTS
Spec #Spec Name
Example: 01 11 00 – Summary of Work
01 22 00 – Measurement & Payment
01 31 13 – Coordination
01 31 19 – Project Meetings
01 32 19 – Contractor Submittals
01 42 13 – Abbreviations
01 42 19 – Reference Standards
01 45 00 – Quality Control
01 51 00 – Temporary Utilities
01 55 00 – Site Access and Parking
01 57 00 – Temporary Environmental Controls
01 60 00 – Materials & Equipment
01 65 00 – Delivery, Storage, and Handling
01 71 33 – Protection of Existing Facilities
01 77 00 – Project Closeout
J – Page 393 of 1899
Firing Range and Associated HVAC Renovations 94 PLANS AND DRAWINGS 55575.18165\44349892.1
PLANS AND DRAWINGS
"THE FOLLOWING PLANS AND DRAWINGS ARE INCORPORATED HEREIN BY REFERENCE AS IF SET FORTH IN THEIR ENTIRETY:
1. Rubber Berm Trap
2. Ceiling Baffles
3. Wall Baffles
4. Fixed Lateral 360
5. DRM Pro
6. SmartRange AXIS™
7. Pepp
8. HVAC Shooting Range Ventilation
System"
J – Page 394 of 1899
Breakdown of HVAC Responsibilities
Action Target Install
Owner / General Contractor Responsibilities
• Internet access from customer’s internet modem to Ventilation Control Panel for remote accessing of control system. (Must be done before we arrive forstartup)
• Provide air-tight range envelope for each shooting bay. • Provide T-Bar ceiling from range safety ceiling to radial diffusers • Based on equipment submittal data, provide appropriately sized gas piping, meters, regulators, and final gas hookups to range HVAC equipment
• Provide all required plumbing connections to range HVAC equipment • Provide all penetrations, patching, and roofing
• Acquire all and pay for all permits and other required approvals • Based on equipment submittal data, provide all concrete pads (if applicable) for range HVAC equipment.
Electrical Contractor Scope of Work (Contracted by Owner / GC) • Install/mount Action Target provided VFD variable frequency drive(s) • Install/mount Range Ventilation Control Box(s)
• Install/mount Range Ventilation Display(s)
• Install and terminate all high voltage wiring for exhaustfan(s) • Install and terminate all high voltage wiring for make-up airfan(s) • Provide and install needed disconnects (non-fused) for make-up air units, exhaust fans, andVFDs • Install and terminate high voltage for all Range Ventilation Control Box(s), make-up air control(s), and Variable Frequency Drives (VFDs)
• Install low voltage conduits for Action Target installed controls per LV conduit locations and sizes • Pull ATI provided low voltage control wires per pull chart on range ventilation drawings • Provide and install CAT6 cable from customer’s network modem to Range Ventilation Control Box (s) • Coordinate with Mechanical Contractor
Parts and Materials Provided by Action Target
• Variable Frequency Drive(s) VFD’s
• Range Ventilation Control Box(s)
• Range Ventilation Display(s)
• Low Voltage Wire
• Controls (Field Devices)
Controls Work by Action Target
• Install all temperature sensors
• Install all filtertransducers
• Install carbon monoxide sensor (ifapplicable)
• Land all low voltage wiring for system control components • Official startup process of all range ventilation system(s) • Controls programming and system balancing.
• Final commissioning and training.
J – Page 395 of 1899
TRUSTED PARTNER WARRANTY™
3-YEAR COMPREHENSIVE COVERAGE
Action Target’s 3-year Trusted Partner Warranty is peace of mind for gun ranges.
It is uninterrupted training for those that serve. It is a resounding pledge from Action Target to its customer’s success as the Trusted Partner at Every Level™.
Our Promise
The comprehensive Trusted Partner Warranty covers both
parts and labor due to manufacturing to product defects.
LEARN MORE
ActionTarget.com/TrustedPartnerWarranty
CORE PRODUCTS COVERED
§ Genesis™ Target Retriever
§ Pilot™ Target Retriever
§ SmartRange Axis™ Range control
§ Vortex™ Steel Trap
§ Baffles and Deflectors
§ Turning targets
§ DRM Pro™ § Auto Targets™
§ Shooting Stalls
§ Rubber Berm Trap
§ MATCH™
§ TAC House™
§ Line of Fire™
J – Page 396 of 1899
RUBBER BERM TRAP™
NOT ALL RUBBER BERM TRAPS ARE BUILT ALIKE
Action Target’s Rubber Berm Trap has numerous attributes that set it apart from the competition. For example, the trap is engineered with a uniquely designed galvanized steel frame that holds rubber in place to safely capture rounds. The rubber can also be treated with a flame-resistant formula to provide maximum fire protection.
LEARN MORE
ActionTarget.com/RBT
FEATURES
Rubber Granules
Action Target's styrene-butadiene rubber granules are
available in a variety of sizes and grade options to fit the needs of any range.
Fire Treatment
Action Target provides optional Flame Lock™ flameresistant treatment. This gives rubber granules an ASTM-E84 and ASTM-E108-11 Class A rating, which is the
industry's best fire rating.
Self-Supporting Frame
The Rubber Berm Trap is the safest rubber trap available.
The self-supporting berm frame is designed to IBC
standards.
Patented Fin Design
The Rubber Berm Trap's patented fin design keeps the
rubber at a depth that is safe for shooters and reduces trap maintenance.
Sidewall Protection
Customers may opt for AR steel sidewalls to prevent bullets from damaging the range walls.
Integrated Baffles
Optional overhead baffles are available for additional
protection of the building structure. Baffles can also be positioned as a hopper feeder for granule distribution. § Internal Frame Design § Clean and Quiet
§ Industry's Best Fire Rating § Harvested Rubber Granules § Patented Fin Design § Optional .50 BMG Rating
J – Page 397 of 1899
LEARN MORE
ActionTarget.com/Ceiling-baffles
FEATURES
CEILING BAFFLES
COVERAGE YOU CAN COUNT ON
Using a patented design, Action Target's ceiling baffles provide ballistic protection for ceiling structures, lights, electrical, and ventilation systems while keeping shooters and range employees safe.
Customizable
Action Target’s ceiling baffles are compatible
with various fascia options, range sizes, and
ballistic ratings.
Modular Design
Ceiling baffles are designed to make installation possible in small spaces and facilitate the replacement of individual parts.
Sound-Reducing Fascia
A variety of available baffle fascia options
improve comfort for range users and customize
the look of a shooting range.
Air Gap
A steel furring within the baffle creates an air
gap for bullets to splatter.
Wood Panel
A layer of wood over the baffle contains bullet
splatter, keeping shooters and range staff safe.
Ballistic Steel Baffles
Steel baffles prevent bullets from escaping the
range. ATI Class 1 (handgun) and ATI Class 2
(rifle) options are available.
Outdoor Applications
Ceiling baffles may be installed in outdoor
settings with an overhead structure.
Configurations
Ceiling baffles are installed to provide complete
overhead ballistic coverage in either fixed firing
line or tactical ranges, allowing shooters to
move up and down the range safely. Structural
stamps are available upon request.
§ Engineered Deflection Angles § Customizable
§ Modular § Acoustic Fascia
§ Prevents Splatter § Protects Ceiling-Mounted Equipment § AR500 Steel
J – Page 398 of 1899
WALL BAFFLES
Wall Deflectors
Wall deflectors are installed in front of the bullet trap and over wall seams to keep rounds within the range. Deflectors are comprised of two components that are precisely engineered to direct rounds downrange. Deflectors are also designed with replaceable wear plates.
FEATURES
§ Prevents Splatter § Modular
§ Available in Standard and Acoustic Finish § 180° Training § Customizable
LEARN MORE
ActionTarget.com/Wall-Baffle
KEEP ERRANT ROUNDS SAFELY CONTAINED
A critical safety priority for any indoor range is making sure bullets cannot escape outside the range. Wall baffles provide an extra level of protection to wall structures and ensure that all rounds are contained within the range.
Safe
Wall baffles provide ballistic protection for wall structures and can contain thousands of rifle and handgun bullets, preventing errant rounds from escaping the shooting range.
Customizable
Action Target’s wall baffles are compatible with various fascia options, range sizes, and ballistic ratings.
Modular Design
Individual baffles may be replaced as necessary, which
keeps maintenance costs low.
Fascia
Wall baffle fascia helps contain splatter and provides sound abatement for the range.
Wood Panel
A layer of wood over the baffle contains bullet splatter, keeping shooters and range staff safe.
Air Gap
A wood or steel furring within the baffle provides space for bullets to splatter.
Ballistic Steel Baffles
Steel baffles prevent bullets from escaping the range and protect structural walls from projectiles fired at oblique angles. ATI Class 1 (handgun) and ATI Class 2 (rifle) options are available.
J – Page 399 of 1899
FIXED LATERAL 360
FEATURES
LEARN MORE
ActionTarget.com/Fixed-Lateral-360
UNIQUE FEATURES, ADVANCED TRAINING
The Fixed Lateral 360 system allows inverted targets to be repositioned laterally along a fixed rail, spaced apart or in groups, without the use of tools. Used in conjunction with the DRM Pro™ target system, these targets can represent bystanders or threats to simulate real-world scenarios. 360° Turning
Targets can turn 90, 180, and 360 degrees in
the blink of an eye.
Ballistic
Exposed downrigger is built using AR500 steel
to resist damage from bullets.
Quiet
Electric motor operates quietly, preventing
shooters from anticipating movement.
Connected
Integrates with our range control software for
advanced features and functionality.
§ 360° Turning § Advanced Quick Release Clamp
§ Ballistic AR500 Steel Downrigger § Lateral Repositioning § Connected to Range Control § Electrical
J – Page 400 of 1899
DRM PRO
FEATURES
LEARN MORE
ActionTarget.com/DRM_Pro
ENHANCED TRAINING AT YOUR FINGERTIPS
The DRM Pro is a state-of-the-art running man target. Equipped with two independent target carriers, variable speeds up to 20 fps, and programmable scenarios, this system offers shooters the most realistic training available.
Fast
Targets travel at speeds up to 20 FPS
for realistic training.
Smart Device Control
The DRM Pro may be controlled on any Wi-Fi enabled
device and provides access to service logs for maintenance.
Configuration
Inverted: System is installed behind the last row of ceiling baffles.
Two in One
Dual runners on parallel tracks provide enhanced dynamic training.
Connected
System connects with central range control and nearly any smart device.
Powerful
Heavy-duty inductive motors and hardened pulleys are built to last in any environment.
§ Control Interface Runs on Any Smart Device § Variable Speeds Up to 20 FPS § Integrates with Range Control Software § Target Positions are Accurate Within 6"
J – Page 401 of 1899
FEATURES
SMARTRANGE AXIS™
LEARN MORE
ActionTarget.com/SmartRange
ENHANCED RANGE CENTRAL CONTROLS
SmartRange Axis™ is a powerful range management solution allowing for remote access to your range for quick diagnosis and service, integrated control platform that puts all your equipment at your finger-tips, user friendly simple and intuitive interface for customers and staff, wireless, security with administrative login, lane management controls, industrial grade tablet, with multiple tablet control options, maximizing range usage and user experiences.
Lane Management
SmartRange Axis’ Lane Management is second to none,
offering the ability to enter shooters' names, assign unique permissions, and designate lane time limits.
Unique Permissions
User profiles are created by ranges and assigned to shooters at check-in. Each user profile carries unique permissions for program access and editing, lighting control, and equipment features. This allows ranges to tailor each session based on criteria such as range staff roles, membership level, etc.
Program Creation
Build dynamic programs and organize them by folder.
Control exposure time, edge time, and cycle count. Or
establish random parameters for a truly unpredictable and challenging training session.
Lighting Controls
Control stall and carrier lighting from one central location for an unmatched experience in training and an enhanced look and feel for any range.
Timed Drills
Set up and execute timed drills with customized target
exposure times, cycle counts, and retriever speed for
training or qualification.
Action Target Connected
SmartRange Axis uses a range server that connects with
Action Target's cloud network. This provides access to
analytics, remote troubleshooting, system improvements, and content updates for improved and streamlined business processes. As the building block for the future, Smart-Range Axis will continue to grow and serve as a central element for all range operations.
HVAC Management
Utilize a user-friendly control of your HVAC system,
optimizing heating, cooling, and the safe removal of smoke and harmful containments like airborne lead and carbon
monoxide from your range; while maintaining the necessary negative pressure to other areas of your building, preventing the spread of those same harmful containments. HVAC
controls also allow you to monitor the health of your filters to keep your system running as efficiently as possible. § Central Master Range Control § Program and Timed Drill Creation § Lane Management § HVAC Management
§ Unique Permissions/User profiles § Stall and Carrier Lighting Controls § Action Target Connected Remote Access § Language support options
J – Page 402 of 1899
PEPP
LEARN MORE
ActionTarget.com/Sound-Abatement
PEPP PANELS FOR SOUND ABATEMENT
PEPP is a cleanable acoustic panel that can be attached directly to range wall and ceiling surfaces for attractive and effective sound control.
Durable
PEPP can be used both indoor and outdoor. It is moisture-, impact-, bacteria-, and fungi-resistant. It is also resilient to oil, chemicals, flames, and sagging.
High Performance
PEPP is Class A fire-rated per ASTM E84 and also has high STRC and NRC ratings. NRC of 2” PEPP with the 1” cotton backing is .90. PEPP also has a SRT of 13.
Configuration
Can be installed on both range wall and ceiling surfaces.
Wipe-able
The non-fibrous and non-abrasive lightweight surface does not contain fiberglass and is easily cleanable.
Strong
This sound-silencing material is resilient and flexible. PEPP is durable, tackable, and is made of a strong rigid material that can capture rounds without ricochet or splatter.
FEATURES
§ Available in Both Charcoal and White Finish § Non-Fibrous, Resistant Material § Both 1” and 2” Thickness § Class A Fire Rated
§ Both Straight Edge and Beveled Edge Finishes § Lightweight and Easy-to-Clean § High STRC and NRC Sound Rating § Outdoor and Indoor Usage
J – Page 403 of 1899
J – Page 404 of 1899
HVAC
FEATURES
§ SmartRange Axis Compatible § Exceeds OSHA, EPA, and NIOSH Regulations
LEARN MORE
ActionTarget.com/Ventilation
VITAL TO SAFETY AND COMFORT
Proper ventilation is essential to the shooter’s experience and provides a safe atmosphere for employees and customers. Action Target provides 180-degree ceiling-mounted air delivery ventilation systems that exceed OSHA, EPA, and NIOSH regulations. Both purge and recirculation systems are available, as well as systems with heating and/or cooling. Ventilation systems can be installed indoors and outdoors.
SmartRange Axis™ Control
Action Target's ventilation systems seamlessly integrate with SmartRange Axis range control software.
This software provides an intuitive digital display of the ventilation system, including real-time filter life data and remote servicing capability.
Purge System
A purge ventilation system draws air into the range,
filters it, then releases cleaned air back into the
atmosphere.
Recirculation System
A recirculation ventilation system filters and reuses air within the range. These systems require less energy to
function because the reused air is already cooled or
heated.
Laminar Diffusion
Ventilation systems introduce clean air to the range
behind the shooting line. A radial diffuser ensures the air is evenly distributed.
Air Flow
Ventilation systems create negative air pressure to
draw hazardous dust-filled air away from the shooter
and toward the bullet trap. From there, the air enters a filtration system for a final cleaning process.
Filtration
Ventilation systems filter and collect contaminated air, meeting OSHA, EPA, and NIOSH requirements.
Climate Control
Ventilation systems adapt to changing environmental
conditions to maintain required air speed and pressure
conditions.
J – Page 405 of 1899
AFTERMARKET SERVICES
TURNKEY CONVENIENCE, COMPLIANCE, AND SAFETY
Managing a range requires a lot of effort and attention to detail. Action Target eliminates much of that effort with our turnkey range solutions. from scheduled maintenance and cleanings to managing metals recycling and compliance documentation, Action Target’s services streamline your operations.
Metals Recycling
Recycling your metals with Action Target is easy and efficient. Simply contact Action Target to schedule a pickup. We will be there within 72 hours, at which time your London Metals Exchange (LME) spot pricing will be locked in.
• Fast and Convenient Pickup
• Simple Brass and Lead Packaging
• Best in Class Payment Structure and Loyalty Bonus
• 10% BONUS for Acton Target equipment and services
Range Waste Disposal
Genesis is connected to SmartRange Axis™ range control
software through Action Target's cloud network. This
allows Action Target to update content remotely, troubleshoot on the fly, and provide expedited cutomer support.
Recycling & Disposal Programs
Transparent pricing
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Convienence
This complete turnkey solution integrates with our Metals Recycling and Filter Disposal Programs. We also provide all the necessary containers, pallets, packaging, and other transport materials, simplifying your role in the process.
Rubber Berm Trap Cleaning
Range Visits
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Range Cleaning
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Range Maintenance
We provide resources to help you maintain your range. From maintenance schedules to operation and maintenance manuals, we ensure you are prepared to properly care for your equipment.
Maintenance & Cleaning Programs
Action Target Store
Paper and Cardboard Targets
With more than 1,000 target designs, we offer a greater selection than anyone else in the industry.
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We stock a variety of backers to fit any target system.
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We offer a wide variety of innovative steel targets.
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Keep your customers safe with quality ear and eye
protection designed for target shooting and tactical
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Keep your rental guns secure and working smoothly with our selection of firearms storage, cleaning, and lubrication gear.
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Keep your range safe and clean with products designed to remove lead from hands, shoes, floors, and other surfaces.
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Specifically designed to filter lead and high loading conditions found in indoor firing range applications. 24/7 Support
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ATTACHMENT B
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CITY COUNCIL STAFF REPORT
DATE: NOVEMBER 12, 2025 CONSENT CALENDAR
SUBJECT: APPROVE AIRPORT LEASE AGREEMENT NO. 25N024 WITH STRIKE TECHNOLOGY, INC. DBA WILORCO FOR 2901 E. ALEJO ROAD, (THE "ACCELERATOR CAMPUS") BLDG 13 AT THE PALM SPRINGS
INTERNATIONAL AIRPORT
FROM: Scott C. Stiles, City Manager
BY: Department of Aviation
SUMMARY:
This action approves Airport Lease Agreement No. 25N024 with Strike Technology Inc. dba Wilorco for 2901 E. Alejo Road, Building #13 at the Palm Springs International Airport (Airport).
RECOMMENDATION:
1. Approve Airport Lease Agreement No. 25N024 with Strike Technology Inc. dba Wilorco for 2901 E. Alejo Road, Building #13 at the Palm Springs International Airport for the term beginning October 1, 2025 and ending on June 30, 2026.
2. Authorize the City Manager or designee to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
According to the Public Integrity Disclosure form (Attachment B), Strike Technology Inc. dba Wilorco is registered to do business in the state of California.
BACKGROUND:
The City-owned, airport-managed property at 2901 East Alejo Road, also known as the Accelerator Campus, contains twelve buildings comprising eight industrial warehouse/storage buildings and four office buildings, all within the boundaries of Airport property. The Accelerator Campus was previously managed by the Coachella Valley Economic Partnership (CVEP) and it reverted to the City of Palm Springs following the expiration of CVEP's lease on September 30, 2023. CVEP initiated a four-month transitional period back to the City that concluded on December 2023.
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City Council Staff Report
November 12, 2025 -- Page 2
Airport Lease Agreement – Strike Technology Inc dba Wilorco In December 2023, the City hired Gordian, which conducted a due diligence assessment to determine facility age and condition, along with costs for improvements. The building’s average asset age was determined to be forty years or older, and the inspection concluded that renovations to bring the facilities up to a fully compliant, commercial-use occupancy would cost at least $6.8 million.
On February 15, 2024, the Airport hired a qualified appraiser who evaluated the Accelerator Campus condition. On March 3, 2024, a fair market rent value was established for each of the buildings, as a non-aeronautical airport property, as listed in Table 1.
Table 1
Building
No.
Appx. Building
Area (sf)
Fair Market Rent
(sf)
Appx Fair Market
Rent/mo
1 6,100 $0.40 $2,440
2 960 $0.40 $384
3 960 $0.40 $384
4 1,920 $0.50 $960
5 3,570 $0.50 $1,785
6 960 $0.40 $384
7 381 $0.40 $154
8 & 9 10,321 $0.50 $5,160
10 2,240 $0.50 $1,120
12 11,486 $0.70 $8,040
13 1,891 $0.40 $756
On March 20, 2024, the Airport Commission was notified of the tenant relocation strategy.
This strategy included informing the existing tenants of their relocation options, coordinating with the City to connect them with a broker, and communicating the requirements of the new lease. Tenants were offered the option to sign a new temporary lease at fair market value specific to the tenant, or they could choose to vacate the premises.
On May 30, 2024, the fair market rent and terms of the airport lease were discussed with each tenant either in person or by telephone. The tenants were offered the opportunity to continue their occupancy in an "AS-IS" condition, subject to the airport lease terms or allowed 60 days at their current lease rate to vacate the premises.
On January 7, 2025, the Airport met with Strike Technology Inc. dba Wilorco to confirm their intent to stay in the premises currently occupied on the Accelerator Campus on a temporary basis. The Airport listened to the unique needs of the business, concerns about the premises, and developed a plan that would result in an executed Airport Lease Agreement.
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City Council Staff Report
November 12, 2025 -- Page 3
Airport Lease Agreement – Strike Technology Inc dba Wilorco The Accelerator Campus is located on airport property and is designated for future aeronautical use according to the Airport Layout Plan. An aerial view of the existing location is provided below:
To obtain an executed lease with the City of Palm Springs, Strike Technology was informed that they must maintain a valid business license with the City, provide a certificate of insurance that meets the City’s requirements, and remain current on all rent owed to the City of Palm Springs. A lease was signed by Strike Technology on January 27, 2025. However, the lease could not be brought to City Council at that time due to Strike Technology’s failure to provide the required certificate of insurance.
STAFF ANALYSIS:
The Airport receives grant funding from the Federal Aviation Administration (FAA) for federal assistance programs. For the airport to accept federal funds, the airport must agree to certain grant assurances. Because of the special circumstances with the tenants of the former CVEP Accelerator Campus, the Airport agreed to enter month-to-month leases with existing tenants, under an emergency temporary use, which is allowable by the FAA.
On March 7, 2025, the Airport engaged with an aeronautical / transportation related company to use the building occupied by Strike Technology; therefore, the Airport issued a 60-day notice of termination on July 2, 2025 requiring Strike Technology to vacate Bldg #5 by mid-September. After discussing options with Strike Technology, the Airport decided to provide a temporary lease for space in an adjacent building (Bldg #13) to store the company’s contents. The Airport Lease will allow time for Strike Technology to
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City Council Staff Report
November 12, 2025 -- Page 4
Airport Lease Agreement – Strike Technology Inc dba Wilorco relocate by June 30, 2026 while also allowing the Airport to follow FAA land use regulations regarding airport property.
This comprehensive approach highlights the City’s commitment to ensuring a smooth transition in property management, compliance with FAA regulations, and robust support for tenants through new lease arrangements and relocation assistance.
ENVIRONMENTAL ASSESSMENT:
The requested City Council action is not a “Project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. According to Section 15378(b), a “Project” does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
ALIGNMENT WITH STRATEGIC PLANNING:
The Approval of this action supports City Council priority 1D, Economic Development as well as the Airport’s Strategic Plan Priority 4 – Goal 2, Maximize non-aeronautical revenue opportunities for the City.
FISCAL IMPACT:
The Airport Lease Agreement with Strike Technology Inc dba Wilorco will generate gross revenue to the Airport in the amount of $6,804 for the 9-month term. All revenue will be applied to Airport account 415.38065 non-aeronautical ground rental.
REVIEWED BY:
Department Director: Harry Barrett
Assistant City Manager: Jeffrey S. Ballinger
City Manager: Scott Stiles
ATTACHMENTS:
A. Airport Lease Agreement
B. Public Integrity Disclosure
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ATTACHMENT A
LEASE AGREEMENT
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CITY OF PALM SPRINGS
AIRPORT LEASE AGREEMENT NO. 25N024
This Airport Lease Agreement (“Agreement”) is made and entered into this 1st day of October, 2025 (“Effective Date”) by and between the City of Palm Springs, a charter city and municipal corporation (“City”) and STRIKE TECHNOLOGY INC DBA WILORCO, a California Corporation (“Tenant”). City and Tenant may be individually referred to as “Party” or collectively as the “Parties”.
RECITALS
A. The City is the owner and operator of the Palm Springs International Airport (“Airport”) located at 3400 E Tahquitz Canyon Way, Palm Springs, CA 92262.
B. Tenant desires to lease property from the City in order to conduct Research and Development Engineering of Solar and Hydroelectric Energy Systems.
NOW THEREFORE, for and in consideration of the mutual representations, warranties, covenants, obligations, privileges, conditions, and agreements set forth in this Agreement, the Parties hereby agree as follows:
1. INCORPORATION OF RECITALS. The recitals above are true and correct and are hereby incorporated herein by this reference.
2. LEASED PREMISES.
2.1 Lease. City hereby leases to Tenant and Tenant leases from City, certain real property located within the City of Palm Springs, County of Riverside, California, as more particularly described in Exhibit “A”, attached hereto and incorporated herein by this reference.
This leased property, as defined herein, is leased to Tenant and referred to in this Agreement as the “Leased Premises”.
2.2 Acceptance of Leased Premises. Tenant accepts the Leased Premises “AS IS” in the current condition and subject to all existing liens, encumbrances, charges, conditions, covenants, easements, restrictions and rights-of-way, if any. Tenant’s acceptance of the Leased Premises constitutes a waiver of any warranty against any defect in regard to workmanship or material of the Leased Premises or other improvements which are a part of the Leased Premises.
City shall have no obligation to maintain or repair any of the leasehold improvements to the Leased Premises, except as may otherwise be expressly provided herein.
3. TERM.
3.1 Term. The Term of this Agreement shall commence on October 1, 2025 and will continue as a month-month tenancy until such time as it is terminated by either Party. Either Party may terminate this Agreement by giving the other party written notice at least sixty (60) days prior to when the Leased Premises are to be vacated. Notwithstanding the foregoing, this Lease Agreement shall automatically terminate on June 30, 2026 if not yet terminated by either Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C
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Party. Tenant shall, at the expiration of the term of this Agreement, or upon its earlier termination, return the Leased Premises in conformance with Section 15.
4. RENTS, FEES, AND OTHER CHARGES.
4.1 Monthly Rent. The monthly rental for the use and occupancy of the Leased Premises for the Original Term shall be seven hundred and fifty-six dollars ($756) per month.
4.2 Payments. Payment of rents, fees, and other charges shall be made promptly without notice or demand, in legal tender of the United States of America. (a) Payment of rent shall be made by Tenant to City monthly in advance on or before the first (1st) day of each month. The rent for any partial month shall be prorated. (b) Payment of fees and other charges shall be made by Tenant to City monthly on or before the tenth (10th) day of each month for the previous month. (c) Payments of rents, fees, and other charges shall be made by check or money order, payable to City. Payments shall be delivered or mailed to the City of Palm Springs at the following address:
City of Palm Springs
Attention: Department of Finance
PO Box 2743
Palm Springs CA 92263
Payments shall be made without any abatement, deductions, reductions, offsets, or counterclaims of any kind. Any portion of rent not received on or before ten (10) days past the due date, shall be deemed a material default of the terms of this Agreement and a breach. (d) If any check is returned by the bank for any reason, Tenant shall pay a fifty dollar ($50.00) returned check charge, in addition to applicable late fees, until cash, draft or other acceptable form of payment (as specified by the City) is received by the City. In the event of a returned check, the City may demand that payment of the returned check and/or all future payments be made by certified check, cashier’s check, money order or cash.
4.3 Security Deposit. Prior to taking possession of the Leased Premises, Tenant shall deposit (and keep on account throughout the term of this Agreement) with City a security and damage deposit (“Security Deposit”) in the amount of five-hundred dollars ($500) (or the equivalent to two month’s rent whichever is greater) as security for the return of the Leased Premises at the expiration of the term of this Agreement in conformance with Section 15, as well as the faithful, timely, and complete performance of the terms and conditions of this Agreement. (a) The Security Deposit may be used in the event of termination of this Agreement. The Security Deposit may be used to cure any default or breach of this Agreement without prejudice to any other remedies available to City and that City may increase the Security Deposit in the event of default or breach.
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4.4 Late Charges. A late charge equal to ten percent (10%) per month on the unpaid balance for each month the rent is late shall be automatically added to any fees or other charges not received by City by the close of business five (5) calendar days after due and owing. Rent not received on or before ten (10) days past the due date shall be deemed a default of this Agreement. In addition to late charges, City shall be entitled to interest at the State of California judgment rate plus all costs and expenses incurred by City to collect (or attempt to collect) amounts past due, including without limitation, attorney and court fees, costs, and expenses. (a) At the option of the City, rents tendered to the City subsequent to default may be rejected by the City, or accepted by the City, with the appropriate late fees. The City, at its sole discretion, may reject past due payments and consider the lease in breach. Acceptance of any such late charge by City shall in no event constitute a waiver of City’s default with respect to such overdue amount, nor prevent City from exercising any of the other rights and remedies granted hereunder, nor be deemed a waiver of any other existing breach by the Tenant.
5. USE OF THE LEASED PREMISES AND CONDUCT OF TENANT.
5.1 Use of the Leased Premises.
(a) Tenant hereby acknowledges that the principal use of the Airport consists of the operation of a public airport and that all other operations and businesses which are now or hereafter permitted by City, including the use hereunder, must be at all times be compatible with such principal use, as City shall, in its sole discretion, determine. (b) The primary use of the Leased Premises permitted under this Agreement shall be a Research and Development Engineering of Solar and Hydroelectric energy systems.
Tenant shall, continuously and uninterruptedly during the term of this Agreement, conduct its activity, as permitted herein, upon the Leased Premises unless prevented from so doing by strikes, fire, casualty or other causes beyond Tenant's control, except during reasonable periods for repairing, cleaning and decorating the Leased Premises. (i) Parking. Tenant may park up to two (2) vehicles in the parking stalls located on the Leased Premises. Tenant shall register such vehicles with the City prior to utilizing the parking stalls on the Leased Premises. Notwithstanding the foregoing, Tenant shall not park trailers, recreational vehicles, moving trucks, or semi-trailers within the parking stalls located on the Leased Premises without the written permission of the City, which may be withheld in the City’s sole discretion. In the event that Tenant desires to park vehicles in excess of the two (2) vehicle limit or park vehicles that are otherwise prohibited by this Section, Tenant and City may negotiate an additional fee to allow for such parking use. Failure to comply with the provisions of this Section may result in citations or potential towing of vehicles. (ii) Keys. Upon execution of this Agreement, Tenant shall receive a set of keys upon the execution of this Agreement. Tenant will not duplicate any keys, alter any locks or install any new or additional lock or bolt on any door of the Leased Premises without written permission of the City. If a key is lost or stolen, Tenants shall pay a charge of $20 per key incurred in the replacement of the locks and making of new keys.
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(c) Tenant shall, at Tenant's own cost and expense, obtain and maintain all licenses, permits, certificates or other authorizations of any governmental authority having jurisdiction thereover, including, but not limited to, the Federal Aviation Administration (FAA), which may be necessary for the conduct in the Leased Premises of its business operations and activities. Without limiting the generality of the foregoing, Tenant shall comply with all applicable laws, resolutions, codes, rules, orders, directions, ordinances and regulations of any department, bureau or agency or any governmental authority having jurisdiction over the operations, occupancy, maintenance and use of the Leased Premises for the purpose demised hereunder, except for those requiring major alterations to the Leased Premises as distinguished from those relating to furniture, fixtures or equipment of Tenant therein. Tenant shall indemnify and save City harmless from and against any claims, penalties, losses, damages or expenses imposed by reason of Tenant's violation of any applicable law or the rules and regulations of governmental authorities having jurisdiction thereof.
(d) Notwithstanding any other remedies of City hereunder, in the event of a breach of this Section 5.1, Tenant, upon receipt of written notice from City of said breach, shall cure said specified breach within five (5) business days. If cure is not performed within five (5) business days, City, at its option, may terminate this Agreement upon thirty (30) days' written notice. However, if Tenant has undertaken steps to cure within five (5) business days, then City shall not terminate this Agreement unless Tenant fails to diligently complete said cure. In such event, City may terminate this Agreement upon thirty (30) days written notice. Notwithstanding the foregoing, if at any time Tenant's breach has a material adverse effect on the operations of the Airport or creates an emergency situation that, in City's reasonable estimation, presents a risk to public health or safety, Tenant shall immediately commence to cure such breach.
5.2 Restrictions on Use.
(a) Tenant shall not use or permit the use of the Leased Premises for any purpose other than that set forth in Section 5.1 above, and Tenant shall comply promptly with all applicable laws, rules and regulations regarding the use of the Leased Premises, including, but not limited to all rules and regulations promulgated by the FAA. (b) Tenant shall not use or permit the use of the Leased Premises in any manner that will (A) tend to create or permit any waste or nuisance, (B) tend to disturb other tenants or users of the Airport, (C) invalidate or cause cancellation or be in conflict with fire or other hazard insurance policies covering the Airport, or (D) increase the rate of fire insurance for the Airport or of property located therein, over that rate in effect on the Commencement Date hereof. Tenant, at its expense, shall comply with all rules, orders, regulations or requirements of the State and City Fire Code.
5.3 Airport Use. In connection with the ownership and use of the Airport by City, Tenant hereby agrees as follows:
(a) City reserves the right, but shall not be obligated to Tenant, to maintain and keep in repair the landing area of the Airport and all publicly-owned facilities of the Airport to standards established by City in City’s sole discretion, together with the right to direct and control all activities of Tenant in this regard.
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(b) This Agreement shall be subordinate to the provisions and requirements of any existing or future agreement between City and agencies of the United States relative to the development, operation or maintenance of the Airport.
(c) It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of any exclusive right within the meaning of Section 308(a) of the Federal Aviation Act of 1958 (49 U.S.C. Section 1349). (d) Tenant shall not make use of the Leased Premises in any manner which might interfere with the landing and taking off of aircraft from the Airport, or which might otherwise constitute a hazard. In the event the aforesaid covenant is breached, City reserves the right to enter upon the Leased Premises and cause the abatement of such interference, at the expense of Tenant.
(e) This Agreement and all the provisions hereof shall be subject to whatever right the United States Government now has, or in the future may have or acquire, affecting the control, operation, regulation and taking over of said Airport, or the exclusive or nonexclusive use of the Airport, by the United States during the time of war or national emergency or otherwise.
(f) Tenant shall conform to the Airport Rules and Regulations and FAA safety and security rules and regulations regarding use of the Airport operations area including runways, taxiways, aircraft aprons by vehicles, employees, customers, visitors, etc. in order to prevent security breaches and avoid aircraft incursions and vehicle/pedestrian deviations; will complete and pass an airfield safe driving instruction program when offered or required by the Airport, and will be subject to penalties as prescribed by the Airport for violations of the Airport safety and security requirements.
5.4 Airport Security. Tenant is responsible for maintaining security in and around the Leased Premises or any other area adjacent to or upon the Airport which Tenant has an exclusive right to use or which Tenant otherwise controls. Tenant is further responsible for maintaining security with respect to access to and entry upon Airport operations areas, or other areas of the Airport designated by City from time to time as security areas, by employees, subtenants, contractors, invitees or customers of Tenant or any other person who enters the Airport operations areas at Tenant’s invitation, direction, or authority, whether through or from the Leased Premises or otherwise.
5.5 Hazardous Materials.
(a) Restrictions. Tenant shall not cause or permit any hazardous materials or toxic substances to be brought upon, kept or used in or about the Leased Premises or the Airport by Tenant, its agents, employees, contractors or invitees, without the prior written consent of City. City's consent shall not be unreasonably withheld so long as Tenant demonstrates to City's reasonable satisfaction and covenants to City that such hazardous materials or toxic substances are necessary or useful to Tenant's business and will be used, kept and stored in a manner that complies with all laws relating to any such hazardous materials or toxic substances so brought upon or used or kept in or about the Leased Premises or the Airport. If Tenant breaches the Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C
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obligations stated in the preceding sentence, or if the presence of hazardous materials or toxic substances on the Leased Premises or the Airport caused or permitted by Tenant results in contamination of the Leased Premises or the Airport, or if contamination of the Leased Premises or the Airport by hazardous materials or toxic substances otherwise occurs for which Tenant is legally liable to City for damage resulting therefrom, then Tenant shall indemnify, defend and hold City harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value of the Leased Premises or the Airport, damages for the loss or restriction on use of rentable or usable space or of any amenity of the Leased Premises or the Airport, damages arising from any adverse impact on marketing of space in the Airport, and sums paid in settlement of claims, actual attorneys' fees, consultant fees and expert fees), which arise during or after the term of the Agreement as a result of such contamination. This indemnification of City by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions, including regular inspections, or any clean up, remedial, removal or restoration work required or recommended by any federal, state or local governmental agency or political subdivision because of hazardous materials or toxic substances present in the soil or ground water on or under the Leased Premises and/or the Airport. The indemnity, defense and hold harmless obligations of Tenant hereunder shall survive any termination of this Agreement. Without limiting the foregoing, if the presence of any hazardous materials or toxic substances on the Leased Premises or the Airport caused or permitted by Tenant results in any contamination of the Leased Premises or the Airport, Tenant shall promptly take all actions at its sole expense as are necessary to return the Leased Premises and the Airport to the condition existing prior to the introduction of any such hazardous materials or toxic substances; provided that, City's approval of such actions shall first be obtained, which approval shall not be unreasonably withheld so long as such actions, in City's sole and absolute discretion, would not potentially have any material adverse long-term or short-term effect on the Leased Premises or the Airport.
(b) Definitions. As used herein, the terms "hazardous materials and/or toxic substances" mean (A) any hazardous or toxic substance, material or waste which is or becomes regulated by any local, state or federal government or special district, (B) designated as a "hazardous substance" pursuant to Section 1311 of the Federal Water Pollution Control Act (33 USC Section 1317), (C) defined as a "hazardous waste" pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act, 42 USC Section 6901, et seq. (42 USC Section 6903), (D) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC Section 9601, et seq. (42 USC Section 9601), (E) defined as a "hazardous waste" or as a "hazardous substance" pursuant to Section 25117 or 25316 of the California Health and Safety Code, (F) substances defined as “hazardous materials” in the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101 et seq., (G) any infectious wastes or substances, or (H) petroleum and any by-products thereof.
References herein to specific statutes or laws shall also be references to any amendments of or applicable successor statutes or laws.
6. TAXES AND ASSESSMENTS.
6.1 Tenant recognizes and understands that this Agreement may create a possessory interest subject to property taxes pursuant to Revenue & Taxation Code Section 107.6 and that, if a possessory interest is created, Tenant shall, in accordance with this Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C
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Section 5, be responsible for payment of property taxes levied against such possessory interest. Any documentary transfer tax assessed upon the creation of a leasehold interest in the Premises under this Agreement shall be paid by Tenant. Tenant hereby expressly acknowledges that City has given Tenant notice that Tenant's possessory interest in the demised premises may be taxed.
Tenant’s initials
7. UTILITIES AND SERVICES.
7.1 Utilities. During the term of this Agreement, Tenant agrees to pay all charges and expenses in connection with utility services furnished to the Leased Premises and to protect City and the Leased Premises from all such charges and expenses. Tenant understands and agrees that the Leased Premises are served by a single meter. Tenant is responsible for paying the City for Tenant's pro rata share, as reasonably determined by City based on the square footage of the Leased Premises, of all shared utilities within ten (10) days after billing by City.
7.2 Tenant acknowledges that City has no obligation to provide utilities except those already furnished as of the date of this Agreement to the Premises or additional utilities. City shall not be liable to Tenant under any circumstances for damages or loss to Tenant's property, injury to person or property, or consequential damages, however occurring, through, in connection with, or incidental to failure to furnish or interruption of any utilities or services.
8. IMPROVEMENTS, REPAIRS AND MAINTENANCE.
8.1 Improvements. No improvement shall be erected, placed, altered or maintained on the Leased Premises unless plans and specifications have been approved in writing by City, at City’s sole discretion. Prior to commencing construction of any building, structure or improvement (not including the internal layout) on the Leased Premises, Tenant shall notify City of the date of commencement and expected completion thereof and shall submit for approval plans and specifications in accordance with applicable rules and regulations of the City.
8.2 Tenant's Obligations to Maintain and Repair. Tenant shall at all times:
(a) Keep and maintain the Leased Premises in a neat, clean, orderly and sanitary condition and undertake all cleaning required to preserve the same in the same condition as when received at the commencement of the Term, less only ordinary wear and tear; (b) Dispose of all garbage, rubbish and waste in a clean and sanitary manner at reasonable and regular intervals;
(c) Keep the exterior of the improvements on the Leased Premises in a reasonably neat and attractive condition, free from waste or debris.
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(d) Properly use and operate all electrical, heating, plumbing, and other fixtures and appliances, and assume all costs incurred in their repair resulting from misuse or abuse;
(e) Not destroy, deface, damage or remove any part of the Leased Premises or permit Tenant’s guest, invitee, or any person acting through, under or on behalf of Tenant to do so, or permit any waste in, on or about the Leased Premises; and (f) Replace any lost or broken furnishings, glass, appliances or equipment which were part of the Premises as of the date hereof.
City shall not be liable to Tenant by reason of any injury to or interference with Tenant's business arising from or connected with the need for or the making of any repairs, alterations or improvements.
8.3 City’s Responsibilities. City shall be responsible for the following:
(a) Subject to Tenant’s responsibilities outlined in Section 8.2, the Landlord shall be responsible for the overall maintenance of the Leased Premises, including the heating, ventilation and cooling systems, plumbing and electrical systems, exterior walls, windows, roof of all buildings on the Leased Premises. At no time shall Landlord be responsible for any repair or maintenance caused by Tenant’s improper, negligent, or reckless use of the Leased Premises. (b) Maintenance obligations assigned to the City under this Agreement shall be carried out by the City’s Department of Maintenance and Facilities (the “Department”).
Maintenance requests shall be made to the Department at (760) 323-8167.
8.4 City's Remedies. In the event Tenant fails to perform its obligations under Section 8.1, City may, pursuant to Section 14.4 of this Agreement, after fifteen (15) days' written notice to Tenant to cure such failure, enter upon the Leased Premises and put the same in good order, condition and repair,
8.5 No City Obligations. City shall have no obligation to make any repairs to the Leased Premises other than as expressly and specifically set forth in this Agreement. Tenant hereby waives any and all rights provided in Sections 1941 through 1942, inclusive, of the Civil Code of California and hereby waives, to the extent permissible, any rights other than statutes or laws now or hereafter in effect which are contrary to the obligations of Tenant under this Agreement, or which place obligations upon City in addition to those provided in this Agreement.
9. RESERVED.
10. RESERVED.
11. INDEMNITY.
11.1 City's Non-liability. City shall not be liable for any loss, damage or injury of any kind to any person or property arising from any use of the Leased Premises, or any part thereof, Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C
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or caused by any defect in any building, structure or other improvement thereon or in any equipment or other facility therein, or caused by or arising from any act or omission of Tenant or any of its agents, employees, licensees or invitees, or by or from any accident on the Leased Premises or any fire or other casualty thereon, or occasioned by the failure of Tenant to maintain the Leased Premises and all improvements thereto in a safe condition, or arising from any other cause except where caused by the sole negligence or willful misconduct of City, its agents or employees.
11.2 Indemnification. To the fullest extent permitted by law, Tenant shall, at Tenant's sole expense and with counsel reasonably acceptable to City, defend, indemnify, and hold harmless City and City's officers, officials, employees and agents from and against all claims, (including demands, losses, actions, causes of action, damages, liabilities, expenses, charges, assessments, fines or penalties of any kind, and costs including consultant and expert fees, costs of investigation, court costs and attorney’s fees) from any cause, arising out of or relating (directly or indirectly) to this Agreement, the tenancy created under this Agreement, or the Premises, including without limitation:
(a) The use or occupancy, or manner of use or occupancy, of the Leased Premises or buildings by Tenant;
(b) Any act, error or omission, or negligence of Tenant or of any subtenant, invitee, guest, contractor or licensee or Tenant or any subtenant in, on, or about the Leased Premises;
(c) Tenant’s conducting or managing of its business;
(d) Any alterations, activities, work, or things done, omitted, permitted, allowed, or suffered by Tenant in, at, or about the Leased Premises or buildings, including the violation of or failure to comply with any insurance requirements or any applicable laws, statues, ordinances, standards, rules, regulations, orders, decrees, or judgments in existence on the Commencement Date or enacted, promulgated, or issued after the date of this Agreement, and; (e) Any breach or default in performance of any obligation on Tenant’s part to be performed under this Agreement, whether before or during the term of this Agreement or after its expiration or earliest termination.
11.3 This indemnification extends to and includes, without limitation, claims for:
(a) Injury to any persons (including death at any time resulting from that injury);
(b) Loss of, injury or damage to, or destruction of property (including loss of use at any time resulting from that loss, injury, damage, or destruction); and (c) All economic losses and consequential or resulting damage of any kind.
11.4 Tenant’s indemnification obligation hereunder shall survive the expiration or earlier termination of this Agreement until all claims against City involving any of the Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C
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indemnified matters are fully, finally, and absolutely barred by the applicable statutes of limitations.
12. INSURANCE.
12.1 Required Insurance Coverage. Prior to commencing any work or operations under this Agreement, Tenant at its sole cost and expense and for the Term of this Agreement, all extensions thereof, shall obtain and maintain or shall cause to be obtained and maintained insurance against claims for injuries to persons or damages to property which may arise from or in connection with the activities of Tenant and its agents, employees and contractors, meeting at least the minimum insurance requirements set forth in Exhibit “B”, attached hereto and incorporated herein by this reference, on terms and conditions and in amounts as required by City from time to time and with insurers acceptable to City.
12.2 Tenant shall provide City with certificates of insurance or copies of all policies and such endorsements as may be required by City. These requirements are subject to amendment or waiver if so approved in writing by the Risk Manager of the City of Palm Springs (“Risk Manager”).
13. DEFAULT.
13.1 Events of Default. The occurrence of any of the following shall constitute an event of default of this Agreement on the part of the Tenant:
(a) Tenant fails to make the payment of any installment of rent or other sum when due hereunder (“Monetary Default”) within ten (10) days from when due. (b) Failure to perform any obligation, agreement or covenant under this Agreement (“Non-Monetary Default”) and such failure continues for fifteen (15) days after written notice of such failure, or if such Non-Monetary Default cannot be cured within fifteen (15) days, Tenant has not commenced corrective action and prosecuted the same to completion with due diligence, or the Non-Monetary Default is of such a nature that it cannot be cured by any action of Tenant.
(c) Failure to pay any insurance premium, lien, claim, demand, judgment or other charge provided for in this Agreement to be paid or caused to be paid by Tenant at the time and in the manner as provided for in this Agreement.
(d) Failure to maintain the Leased Premises or cause the same to be maintained as provided for in this Agreement.
(e) Abandonment or vacation of the Leased Premises for a continuous period in excess of thirty (30) days without payment of rent. Tenant waives any right to notice Tenant may have under Section 1951.3 of the Civil Code of the State of California, the terms of this Section 13.1 being deemed such notice to Tenant as required by said Section 1951.3. (f) Default by Tenant under the terms of any mortgage on the estate of Tenant.
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(g) The filing of any voluntary petition in bankruptcy by Tenant, or the filing of an involuntary petition by Tenant's creditors, which involuntary petition remains undischarged for a period of thirty (30) days. If under applicable law, the trustee in bankruptcy or Tenant has the right to affirm this Agreement and continue to perform the obligations of Tenant hereunder, such trustee or Tenant shall, in such time period as may be permitted by the bankruptcy court having jurisdiction, cure all defaults of Tenant hereunder outstanding as of the date of the affirmance of this Agreement and provide to City such adequate assurances as may be necessary to ensure City of the continued performance of Tenant's obligations under this Agreement. (h) The attachment, execution or other judicial seizure of all or substantially all of Tenant's assets or Tenant's leasehold of the Leased Premises, if such attachment or other seizure remains undismissed or undischarged for a period of fifteen (15) days after the levy thereof.
(i) The admission by Tenant in writing of its inability to pay its debts as they become due;
(j) A general assignment by Tenant for the benefit of creditors. (k) Failure to maintain compliance with applicable laws.
14. REMEDIES IN EVENT OF DEFAULT.
14.1 Termination. In the event of the occurrence of any event of default, City shall have the right to give a written termination notice to Tenant, and on the date specified in such notice, Tenant's right to possession shall terminate, and this Agreement shall terminate unless on or before such date all rent in arrears and all costs and expenses incurred by or on behalf of City hereunder shall have been paid by Tenant and all other events of default of this Agreement by Tenant at the time existing shall have been fully remedied to the satisfaction of City. At any time after such termination, City may recover possession of the Leased Premises or any part thereof and expel and remove therefrom Tenant and any other person occupying the same, including any subtenant or subtenants notwithstanding City's consent to any sublease, by any lawful means, and again repossess and enjoy the Leased Premises without prejudice to any of the remedies that City may have under this Agreement, or at law or equity by any reason of Tenant's default or of such termination. City hereby reserves the right, but shall not have the obligation, to recognize the continued possession of any subtenant. The delivery or surrender to City by or on behalf of Tenant of keys, entry codes, or other means to bypass security at the Leased Premises shall not terminate this Agreement.
14.2 Continuation after Default. Even though an event of default may have occurred, this Agreement shall continue in effect for so long as City does not terminate Tenant's right to possession under Section 14.1 hereof. City shall have the remedy described in California Civil Code Section 1951.4 ("City may continue this Agreement in effect after Tenant's breach and abandonment and recover rent as it becomes due, if Tenant has the right to sublet or assign, subject only to reasonable limitations"), or any successor code section. Accordingly, if City does not elect to terminate this Agreement on account of any event of default by Tenant, City may enforce all of City's rights and remedies under this Agreement, including the right to recover rent Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C
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as it becomes due. Acts of maintenance, preservation or efforts to lease the Leased Premises or the appointment of a receiver under application of City to protect City's interest under this Agreement or other entry by City upon the Leased Premises shall not constitute an election to terminate Tenant's right to possession.
14.3 Damages After Default. Should City terminate this Agreement pursuant to the provisions of Section 14.1 hereof, City shall have the rights and remedies of a City provided by Section 1951.2 of the Civil Code of the State of California, or any successor code sections.
Upon such termination, in addition to any other rights and remedies to which City may be entitled under applicable law or at equity, City shall be entitled to recover from Tenant: (1) the worth at the time of award of the unpaid rent and other amounts which had been earned at the time of termination, (2) the worth at the time of award of the amount by which the unpaid rent and other amounts that would have been earned after the date of termination until the time of award exceeds the amount of such rent loss that Tenant proves could have been reasonably avoided; (3) the worth at the time of award of the amount by which the unpaid rent and other amounts for the balance of the Term after the time of award exceeds the amount of such rent loss that the Tenant proves could be reasonably avoided; and (4) any other amount and court costs necessary to compensate City for all detriment proximately caused by Tenant's failure to perform Tenant's obligations under this Agreement or which, in the ordinary course of things, would be likely to result therefrom. The "worth at the time of award" as used in (3) above shall be computed by discounting such amount at the Federal Discount Rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). If this Agreement provides for any periods during the Term during which Tenant is not required to pay rent or if Tenant otherwise receives a rent concession, then upon the occurrence of an event of default, Tenant shall owe to City the full amount of such rent or value of such rent concession, plus five percent (5%) interest, calculated from the date that such rent or rent concession would have been payable.
14.4 City’s Option to Cure. Notwithstanding the foregoing, if Tenant fails to provide necessary repair and maintenance of the Premises and all improvements thereon, City shall have the right but not the obligation, after notice provided, and failure of Tenant to cure or commence and diligently pursue a cure to such default, to enter the Leased Premises and take all corrective action necessary in the sole judgment of City. Any such entry shall be at the sole risk and expense of Tenant. Tenant shall immediately, upon presentation of a statement therefor, reimburse City for all costs incurred by City in taking such corrective action with interest on said sums from the date of payment by City at the lower of: (A) the highest rate allowed by law; or (B) two points over the prime rate charged from time to time by the Bank of America, or if the Bank of America no longer exists, an equivalent institution. Nothing in this Section shall: (i) require City to take any corrective action on the Leased Premises; (ii) diminish the rights and remedies of City under this Agreement, whether or not City elects to take such corrective action; and (iii) cause a waiver by City of any of its rights and remedies under this Agreement. Any such reentry shall be allowed by Tenant without hindrance, and City shall not be liable in damages for any such reentry, or be guilty of trespass or forcible entry.
14.5 Remedies Cumulative. All of City’s rights, privileges and elections or remedies are cumulative and not alternative, to the extent permitted by law and except as otherwise provided herein.
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14.6 Replacement of Statutory Notice Requirements. When this Agreement requires service of a notice, that notice shall replace rather than supplement any equivalent or similar statutory notice, including any notice required by California Code of Civil Procedure Section 1161 or any similar or successor statute. When a statute requires service of a notice in a particular manner, service of that notice (or a similar notice required by this Agreement) in the manner required by this Section shall replace and satisfy the statutory service-of-notice procedures, including those required by California Code of Civil Procedure Section 1162 or any similar or successor statute.
15. SURRENDER OF LEASED PREMISES.
15.1 Upon expiration or termination of this Agreement, Tenant shall vacate and surrender possession of the Leased Premises to City. If Tenant fails to do so, City may immediately commence eviction proceedings in conformance with applicable law.
15.2 Reversion of Improvements. Unless otherwise stated herein, upon expiration or earlier termination of this Agreement, at City’s option, the ownership of improvements made to the Leased Premises shall transfer and become the property of City. If City elects not to claim such property, Tenant shall remove and/or demolish any and/or all improvements (as designated by City) and return the Leased Premises to its original condition and character, ordinary and reasonable wear and tear excepted.
15.3 In the event that Tenant fails to return the Leased Premises in good condition, City may perform any work necessary to correct deficiencies and deduct the cost of the work from the Security Deposit. If the Security Deposit is insufficient to cover the work performed, Tenant shall be obliged to pay the additional balance to City.
15.4 Tenant shall remove all personal property upon expiration and/or termination of this Agreement. If Tenant fails to do so, City may remove and dispose of all personal property at Tenant’s sole risk, cost, and expense and without any liability to City and deduct the cost from the Security Deposit. If the Security Deposit is insufficient to cover the cost of the removal and disposal of the personal property, Tenant shall be obliged to pay the additional balance to City.
15.5 The Security Deposit or the portion not applied pursuant to the terms and conditions of this Agreement shall be returned to the Tenant without interest no later than thirty (30) calendar days after the expiration of the term of this Agreement provided the Tenant has vacated and surrendered possession of the Leased Premises to City.
16. ASSIGNMENT AND SUBLETTING.
16.1 Restriction of Assignment and Subleasing. Tenant shall not encumber, assign, sublease or otherwise transfer this Agreement, or any right or interest hereunder, or in or to any of the improvements constructed or installed on the Leased Premises, in whole or in part.
16.2 Effect of Failure to Comply. If Tenant attempts to make or allow to be made any subleasing, encumbrance, assignment or other transfer, then any of the foregoing events shall be deemed a breach of the conditions and restrictions of this Agreement, and upon such breach, City Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C
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may, at its option, terminate this Agreement at once by written notice, and upon such termination this Agreement shall end and be of no further force.
17. RESERVED.
17.1 City's Right to Sell. City shall have the right to sell all of its interest in the Leased Premises and any lease with respect thereto. If City chooses to exercise such right to sell, and whether such sale is to a public entity or non-public entity, City shall conduct the sale in accordance with the legal requirements imposed upon a municipality by law.
17.2 City's Release from Liability Upon Sale. In the event of any such sale by City, City shall be and is hereby entirely freed and relieved of all liability under all of its covenants and unaccrued obligations contained in or derived from this Agreement arising out of any act, occurrence or omission occurring after the consummation of such sale.
18. RESERVED.
19. RESERVED.
20. RESERVED.
21. RESERVED.
22. REQUIRED FAA CLAUSES.
22.1 Non-Exclusive Use.
(a) This Agreement and all of the provisions hereof shall be subject to whatever right the United States Government has now or may have in the future or may acquire affecting the control, operation, regulation, and taking over of the Airport or the exclusive or non-exclusive use of the Airport by the United States Government during the time of war or national emergency. If any such agreement is executed, the terms and conditions of this Agreement shall be subordinate to the provisions of any agreement between City and the United States relative to the Airport.
(b) It is clearly understood by Tenant that no right or privilege has been granted which would operate to prevent any person, firm, or corporation operating aircraft at the Airport from performing any services on its own aircraft with its own Employees (including but not limited to, fueling, maintenance, and repair) that it may choose to perform. (c) Nothing in this Agreement shall be construed, in any way, as City granting Tenant an exclusive right to engage in any aeronautical activity at the Airport.
22.2 Non-Discrimination.
(a) Tenant, for itself, its heirs, successors, and assigns, as a part of the consideration hereof, does hereby covenant and agree that in the event Improvements are constructed, maintained, or otherwise operated on the Leased Premises described in this Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C
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Agreement for a purpose for which a Department of Transportation (“DOT”) program or activity is extended or for another purpose involving the provision of similar services or benefits, Tenant shall maintain and operate such Improvements in compliance with all other requirements imposed pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the DOT, and as said legal requirements may be promulgated or amended from time to time. (b) Notwithstanding any other provision of this Agreement, during the performance of this Agreement, Tenant, for itself, its heirs, successors, and assigns, as part of the consideration of this Agreement does hereby agree, as a covenant running with the land, that: (a) no person on the grounds of race, color, religion, sex, familial status, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination in the use of the Leased Premises; (b) in the construction of any Improvements on, over, or under the Leased Premises, and the furnishing of services therein or thereon, no person on the grounds of race, color, religion, sex, familial status, or national origin shall be excluded from participation in, or denied the benefits of, such activities, or otherwise be subjected to discrimination; (c) in the breach of any of the above nondiscrimination covenants, City shall have the right to terminate this Agreement and to reenter and repossess the Leased Premises and hold the same as if this Agreement had never been made or issued. This provision does not become effective until the procedures of 49 CFR Part 21 have been followed and completed, including expiration of appeal rights; (d) Tenant, for itself, its heirs, successors, and assigns, as a part of the consideration hereof, does hereby agree as a covenant running with the land that in the event Improvements are constructed, maintained, or otherwise operated on the Leased Premises for a purpose for which a DOT program or activity is extended or for another purpose involving the provision of similar services or benefits, Tenant shall maintain and operate such improvements and services in compliance with all other requirements imposed pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the DOT, and as said Regulations may by amended.
(c) Tenant will comply with pertinent statues and rules as are promulgated or amended from time to time to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefiting from federal assistance. This provision obligates Tenant or its transferee for the period during which federal assistance is provided or is in the form of personal Property or real Property or interest therein or structures or Improvements thereon. In these cases, this provision obligates Tenant or any transferee for the longer of the following periods: (a) the period during which the Leased Premises is used by the sponsor or any transferee for a purpose for which federal assistance is extended, or for another purpose involving the provision of similar services or benefits, or (b) the period during which City or any transferee retains ownership or possession of the Leased Premises.
(d) Tenant shall not discriminate in any manner against any employee or applicant for employment because of political or religious opinion or affiliation, race, creed, color, national origin, sex, age, or disability and further, Tenant shall include a similar clause in all subcontracts. Tenant agrees City has the right to take such action against Tenant as the government may direct to enforce this provision of this Agreement.
23. MISCELLANEOUS.
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23.1 Compliance with Governmental Regulations. Tenant shall, at its own cost and expense, promptly and properly, comply with and execute, including the making of any alteration to the Leased Premises, all orders, regulations, laws and requirements of all governmental authorities arising from the use or occupancy of, or applicable to, the Leased Premises.
23.2 Holding Over. If Tenant shall hold over the Leased Premises after the expiration of the term hereof with the consent of City, either express or implied, such holding over shall be construed to be only a tenancy from month to month, subject to all the covenants, conditions and obligations hereof, except that Tenant shall pay to City 150% of monthly rent due as of the expiration of the term; terminable on thirty (30) days written notice given at any time by either party; provided, however, that nothing herein contained shall be construed to give Tenant any rights to so hold over and to continue in possession of the Leased Premises after the expiration of the term hereof.
23.3 Reserved.
23.4 Reserved.
23.5 Inspection. City reserves the right for City and City's agents and representatives to enter upon the Leased Premises at any reasonable time upon five (5) days prior written notification for the purpose of attending to City's interest hereunder, and to inspect the Leased Premises.
23.6 Attorneys' Fees. In the event any action is brought by City to recover any rent due and unpaid hereunder or to recover possession of the Leased Premises, or in the event any action is brought by City or Tenant against the other to enforce or for the breach of any of the terms, covenants or conditions contained in this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees to be fixed by the Court, together with costs of suit therein incurred.
23.7 Waiver. No waiver of any breach of any of the terms, covenants, agreements, restrictions or conditions of this Agreement shall be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions and conditions hereof. No delay or omission of City to exercise any right or remedy shall be construed as a waiver of any such right or remedy or of any default by Tenant under this Agreement. The various rights and remedies reserved to City herein including those not specifically described in this Agreement shall be cumulative and, except as otherwise provided by California statutory law in force at the time of execution of this Agreement, City may pursue any or all of such rights and remedies whether at the same time or otherwise.
23.8 Reserved.
23.9 Relationship of Parties. The relationship of the parties hereto is that of City and Tenant, and it is expressly understood and agreed that City does not in any way nor for any purpose become a partner of Tenant or a joint venturer with Tenant in the conduct of Tenant's business or otherwise.
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23.10 Time of the Essence. Time is expressly declared to be of the essence of this Agreement.
23.11 Number and Gender. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders, and the word "person" shall include corporation, firm or association. If there is more than one Tenant, the obligations imposed under this Agreement upon Tenant shall be joint and several.
23.12 Headings and Titles. The marginal headings or titles to the Sections of this Agreement are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part of this Agreement.
23.13 Governing Law and Venue. This Agreement shall be deemed to have been made in, and shall be construed in, accordance with the statutes and laws of the State of California without regard to choice of law provisions that would cause the application of the law of another jurisdiction, and without regard to conflicts of law principles. Any suit, action or proceeding permitted hereunder or any judgment entered by any court in respect thereof, will be brought in the state courts sitting in Riverside County, California and the Parties hereby expressly submit to the jurisdiction of such courts for the purpose of any such suit, action, or proceeding permitted hereunder.
23.14 Entire Agreement; Amendments. This Agreement, including the exhibits attached hereto and all documents referenced herein, all of which are incorporated herein by reference, contain the entire agreement of the parties hereto with respect to the matters covered hereby, and no other previous agreement, statement or promise made by any party hereto which is not contained herein shall be binding or valid. No amendment or modification to this Agreement shall be effective unless in writing and signed by both City and Tenant.
23.15 Force Majeure. Except as to the payment of rent, neither of the parties hereto shall be chargeable with, liable for, or responsible to, the other for anything or in any amount for any delay caused by fire, earthquake, explosion, flood, hurricane, the elements, acts of God, or the public enemy, action or interference of governmental authorities or agents, war, invasion, insurrection, rebellion, riots, strikes, or lockouts or any other cause whether similar or dissimilar to the foregoing, which is beyond the control of such parties and any delay due to said causes or any of them shall not be deemed a breach of or default in the performances of this Agreement.
23.16 Severability. If any provision in this Agreement is held to be illegal, invalid, or unenforceable in full or in part, for any reason, by any court of competent jurisdiction, then such provision shall be modified to the minimum extent necessary to make the provision legal, valid, and enforceable. The illegality, invalidity, or unenforceability of any such provision shall in no way affect any other provisions in this Agreement, provided that the illegality, invalidity, or unenforceability of any such provision does not materially prejudice either Party with regard to the respective rights and obligations of each Party contained in the valid terms and conditions of this Agreement.
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23.17 Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
23.18 Notices. Any notice to be given or other document to be delivered by either Party to the other party may be given by personal delivery, generally recognized overnight courier, prepaid, or may be deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed to the Party for whom intended as follows:
To City: City of Palm Springs
3400 E Tahquitz Canyon Way
Palm Springs, CA 92262
To Tenant: Robert Kunesh
Strike Technology Inc
24311 Wilmington Ave
Carson, CA 90745
Either Party hereto may from time to time by written notice to the other party designate a different address which shall be substituted for the one specified above. Notices and documents shall be served upon receipt or, if any notice or other document is sent by registered or certified mail, as provided above, the same shall be deemed served or delivered seventy-two (72) hours after the mailing thereof.
SIGNATURE PAGE TO FOLLOW
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SIGNATURE PAGE TO AIRPORT LEASE AGREEMENT NO. 25N024
BY AND BETWEEN THE CITY OF PALM SPRINGS AND
STRIKE TECHNOLOGY INC DBA WILORCO
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
TENANT:
By: _____________________________ By: _____________________________ Signature Signature
(2nd signature required for Corporation)
Date: ___________________________ Date: ___________________________ CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______ Item No. ________
APPROVED AS TO FORM: ATTEST:
By: _____________________________ By: _____________________________ City Attorney City Clerk
APPROVED:
By: _____________________________ Date: ____________________________ Scott Stiles
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
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EXHIBIT “A”
DESCRIPTION/DEPICTION OF LEASED PREMISES
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EXHIBIT “B”
INSURANCE REQUIREMENTS
Tenant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damage to property which may arise from or in connection with the this Agreement and shall include their agents, representatives, employees or subcontractors. With respect to General Liability and Errors & Omissions, coverage should be maintained for a minimum of five (5) years after contract completion. The cost of all such insurance shall be borne by the Tenant.
A. Minimum Scope of Insurance
$1,000,000 -- Commercial General Liability
$1,000,000 -- Auto Liability
$1,000,000 -- Worker’s Compensation Insurance
$5,000,000 -- Property Insurance
One Year of Minimum Monthly Rent -- Business Interruption Insurance Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering any auto (Code 1), or if Tenant has no owned autos, hired (Code 8) and non-owned (Code 9) autos, with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Property Insurance: Tenant shall maintain not less than $5,000,000 Legal Liability Coverage (ISO Form CP 00 40 or equivalent) on all real property being leased, including improvements and betterments owned by the City, and shall name the City as a loss payee. Tenant shall also provide property insurance on all personal property and betterments and improvements contained within or on the leased premises.
Property insurance shall insure against all risks of loss to any tenant improvements or betterments, at full replacement cost with no coinsurance penalty provision.
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5. Interruption of Business Insurance: Tenant shall, at its sole cost and expense, maintain business interruption insurance by which the minimum monthly rent will be paid to City for a period of up to one (1) year if the premises are destroyed or rendered inaccessible by a risk insured against by a policy of standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements.
6. Cyber Liability Insurance, if the Tenant will provide IT services or software or involve the retention of private, non-public information about third parties, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate.
Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Tenant in this agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations.
7. Umbrella or Excess Policies may be used by the Tenant to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non-contributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Tenant’s primary and excess liability policies are exhausted.
8. Professional Liability Errors and Omissions insurance for all Professional Services rendered including architecture, engineering, or design services related to this Agreement.
9. Builder’s Risk Insurance shall be procured by Tenant prior to the commencement of, and throughout the duration of, any construction of improvements or betterments being installed by Tenant on the Property.
B. Minimum Limits of Insurance
Tenant shall maintain limits no less than:
1. Commercial General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply Docusign Envelope ID: 54BF27BA-927E-45CF-8AD4-8A4C164CA68C
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separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage.
3. Workers Compensation limits as required by California Labor Code and Employer’s Liability with employer liability limits of $1,000,000 per accident; per disease, per employee; coverage shall be endorsed to state carrier waives its rights of subrogation against the City, its officials, employees, agents and contractors.
4. Professional Liability Errors and Omissions: $5,000,000 per claim and $5,000,000 aggregate, coverage to be maintained following completion of work on project for 5 years or, if policy is canceled, extended reporting period to equal the same.
5. Property Insurance: full replacement cost with no coinsurance penalty provision, Business Interruption, Rental Income, All Risk.
6. If applicable, builder’s risk insurance for total replacement value of work completed during any construction of betterments or improvements to City’s site.
C. Deductibles and Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City. The City may require the Tenant to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
D. Other Insurance Provisions
1. The general liability and automobile policies are to contain, or be endorsed to contain, the following provisions:
a. The City of Palm Springs, its officers by endorsement, officials, employees and volunteers are to be covered as additional insureds with respect to: liability arising out of activities performed by, or on behalf of, Tenant, premises owned, occupied or used by the Tenant, or automobiles owned, leased, hired or borrowed by the Tenant. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officer, officials, employees or volunteers.
General liability coverage can be provided in the form of an endorsement to the Tenant’s insurance (at least as broad as ISO Form CG 20 10, CG 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
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b. The Tenant’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, employees and volunteers. For any claims related to this Property, the Tenant’s insurance coverage shall be primary and noncontributory insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents, or volunteers shall be excess of the Tenant’s insurance and shall not contribute with it. This requirement shall also apply to any Excess or Umbrella liability policies.
c. Any failure to comply with reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to the City, its officers, officials, employees or volunteers.
d. Coverage shall state that the Tenant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
2. Workers’ Compensation and Employers’ Liability
Coverage shall contain a waiver of subrogation by endorsement in favor of the City, its officials, employees, agents and contractors.
3. Builder’s Risk
City shall be named as a loss payee on any Builder’s Risk policy to the full extent allowable and for which the City’s insurable interests may appear.
4. All Coverages
Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days’ prior written notice has been given to the City; except that ten (10) days’ prior written notice shall apply in the event of cancellation for non-payment of premium.
5. Waiver of Subrogation
Tenant hereby grants to City a waiver of subrogation which any insurer may acquire against City, its officers, officials, employees, and volunteers, from Tenant by virtue of the payment of any loss. Tenant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Tenant, its employees, agents, and subcontractors.
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6. There shall be no endorsement reducing the scope of coverage required above unless approved by the City’s Risk Manager.
7. If the Tenant maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Tenant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
E. Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best rating of no less than A:VII.
F. Verification of Coverage
Tenant shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause and a copy of the Declarations and Endorsements Pages of the CGL and any Excess policies listing all policy endorsements. All certificates and endorsements and copies of the Declarations & Endorsements pages are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Tenant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Proof of insurance shall be either emailed in pdf format to:
[email protected] or mailed to the following postal address (or any subsequent email or postal address as may be directed in writing by the Risk Manager):
City of Palm Springs
Attention: Risk Manager
3200 East Tahquitz Canyon Way
Palm Springs, CA 92262
G. Subconsultants/Subcontractors
Tenant shall require and verify that all subcontractors relating to this Agreement maintain insurance meeting all the requirements stated herein, and Tenant shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a format least as broad as CG 20 38 04 13.
H. Review of Coverage
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These insurance requirements shall be subject to periodic review by City’s Risk Manager.
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. Should the Risk Manager require any change in any coverage such change shall be communicated in writing to Tenant and Tenant shall comply with the said change within thirty (30) days following the date of receipt of the notice.
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ATTACHMENT B
PUBLIC INTEGRITY DISCLOSURE
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DBA Wilorco
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CITY COUNCIL STAFF REPORT
DATE: November 12, 2025 CONSENT CALENDAR
SUBJECT: APPROVAL OF TRACT MAP WITH EMP2, LLC, A CALIFORNIA LIMITED
LIABILITY COMPANY
FROM: Scott C. Stiles, City Manager
BY: Engineering Services Department
SUMMARY:
Sikand Engineering Associates, representing EMP2, LLC, a California limited liability company, (the “Developer”), has requested approval of a final map for Tentative Tract Map 38998 to create six lots for a future development within Planning Area 1 (PA 1) of the Escena development located at 1000 North Gene Autry Trail. Approval of a final map for Tentative Tract Map 38998 is a ministerial action, as required by the Municipal Code and the Subdivision Map Act. All prior discretionary actions have occurred, allowing for the City’s ministerial approval of the final map.
RECOMMENDATION:
Adopt Resolution No. _____, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING TRACT MAP 38998 WITH EMP2,
LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, FOR PROPERTY LOCATED WITHIN PLANNING AREA 1 OF THE ESCENA DEVELOPMENT LOCATED AT 1000 NORTH GENE AUTRY TRAIL, IN SECTION 7, TOWNSHIP 4 SOUTH, RANGE 5 EAST.” BUSINESS PRINCIPAL DISCLOSURE:
The Public Integrity Disclosure Form from the Developer is included as Attachment A.
BACKGROUND:
At its meeting on January 22, 2025, the Planning Commission recommended conditional approval of Tentative Tract Map 38998 (TTM 38998) to subdivide an undeveloped 22.61 acres of land into six (6) parcels in PA 1 of the Escena development. PA 1, also referred to as the Resort Village, is located on the southeast corner of North Gene Autry Trail and East Vista Chino.
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City Council Staff Report
November 12, 2025 -- Page 2
Approval of Tract Map with EMP2, LLC
The expiration date of TTM 38998 was to be January 22, 2027; however, Sikand Engineering Associates, representing the Developer, timely filed a final map for TTM 38998 on March 4, 2025. Pursuant to state law (California Government Code Section 66452.6 [the “Subdivision Map Act”]), once the filing of a final map has been made to the City Engineer, all subsequent actions associated with the final map may occur after the expiration of the associated Tentative Tract Map.
STAFF ANALYSIS:
The Developer has completed all required reviews for the final tract map and the associated land is already considered annexed into the underlying Community Facility District (CFD). A site map is provided below, a vicinity map is included as Attachment B, and a copy of the final map for TM 38998 is included as Attachment C.
The City Engineer has determined that required conditions of approval associated with TTM 38998 have been satisfied, that Tract Map 38998 is in substantial conformance with the approved Tentative Tract Map, and that Tract Map 38998 is ready for City Council approval.
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City Council Staff Report
November 12, 2025 -- Page 2
Approval of Tract Map with EMP2, LLC
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City Council Staff Report
November 12, 2025 -- Page 3
Approval of Tract Map with EMP2, LLC
ENVIRONMENTAL ASSESSMENT:
The Planning Department has reviewed this project under the provisions of the California Environmental Quality Act (CEQA). In 1994 the City Council certified the Palm Springs Classic Planned Development District Final Environmental Impact Report (State Clearing House #9404274), adopted a Statement of Facts and Findings and a Statement of Overriding Considerations. Also, A Mitigated Negative Declaration (MND) was previously adopted by the City Council on July 16, 2003 for the Escena project and analyzed all significant environmental impacts and outlined mitigation measures of the project to bring them below a level of significance. Pursuant to Section 15162 of the California Environmental Quality Act (CEQA), the preparation of further documentation is not necessary because the circumstances of the project have not changed. The proposed tract map will not, therefore, result in any new environmental impacts beyond those already assessed in the adopted mitigated negative declaration.
ALIGNMENT WITH STRATEGIC PLANNING:
This item aligns with City Council’s Strategic Plan Broad Goal of Economic Development.
FISCAL IMPACT:
Approval of Tract Map 38998 for the currently vacant 22.61-acre parcels will allow for a future development within PA 1. Ultimately, upon completion of the future development, the City will receive yet to be determined additional property tax revenue. Additional, incremental costs for public service will be incurred over time.
REVIEWED BY:
Department Director: Joel Montalvo
Deputy City Manager: Flinn Fagg
City Manager: Scott Stiles
ATTACHMENTS:
A. Business Principal Disclosure
B. Vicinity Map
C. Tract Map 38998
D. Resolution
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Attachment A
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Attachment B
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Department of Engineering Services
Vicinity Map
CITY OF PALM SPRINGS
EMP 2, LLC, @ Escena
STM-2024-0005 – TTM 38998
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Attachment C
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Attachment D
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RESOLUTION NO. _____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, APPROVING TRACT MAP
38998 WITH EMP2, LLC, A CALIFORNIA LIMITED
LIABILITY COMPANY, FOR PROPERTY LOCATED WITHIN
PLANNING AREA 1 OF THE ESCENA DEVELOPMENT
LOCATED AT 1000 NORTH GENE AUTRY TRAIL, IN
SECTION 7, TOWNSHIP 4 SOUTH, RANGE 5 EAST.
WHEREAS, the Planning Commission of the City of Palm Springs, at its meeting of January 22, 2025, recommended conditional approval of Tentative Tract Map 38998, subject to conditions; and
WHEREAS, the Subdivider has filed with the City a final map for Tentative Tract Map 38998, identified as Tract Map 38998, in accordance with Section 66458 of the California Government Code; and
WHEREAS, the Subdivider, has offered dedication to the City of Palm Springs an offer of access rights to Gene Autry Trail and Vista Chino.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. Tract Map 38998 is in substantial conformance with the approved Tentative Tract Map 38998.
SECTION 2. Tract Map 38998 is in conformance with the General Plan SECTION 3. Tract Map 38998 conforms to all requirements of the Subdivision Map Act of the State of California.
SECTION 4. In accordance with Section 66477.1 of the California Government Code, the offer of access rights to Gene Autry Trail and Vista Chino on Tract Map 38998 shall be accepted by the City Clerk, who shall certify acceptance by signature on the map thereof.
SECTION 5. Tract Map 38998 is hereby approved for purposes therein defined.
ADOPTED THIS 11TH DAY OF NOVEMBER, 2025.
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Resolution No. _____