City of Sacramento
City Council - 5PM Report
915 I Street Sacramento, CA 95814
www.cityofsacramento.org
File ID: 2024-01655 10/8/2024 Consent Item 9.
Contract: Combined Sewer System Pipe Program Block 5 Replacement and Rehabilitation File ID: 2024-01655
Location: District 4,Represented by Councilmember Valenzuela; District 5, Represented by Vice Mayor Maple; District 6, Represented by Councilmember Guerra
Recommendation: Pass a Motion 1) approving the contract plans and specifications for the Combined Sewer System Pipe Program Block 5 Replacement and Rehabilitation (R&R) Project (X14170100); 2) awarding the contract to Subterra Construction, Inc. for an amount not-to-exceed $687,688, and 3) authorizing the City Manager or City Manager's designee to execute the construction contract with Subterra Construction, Inc.
Contact: Angelo Vasquez, Project Manager, (916) 808-1701, [email protected]; Roxanne Dilley, Supervising Engineer, (916) 808-1458, [email protected]; Sherill Huun, Engineering & Water Resources Division Manager, (916) 808-1455, [email protected]; Pravani Vandeyar, Director, (916) 808-3765, [email protected]; Department of Utilities Presenter: None
Attachments:
1-Description/Analysis
2-Contract
Description/Analysis
Issue Detail: Staff recommends Council award a construction contract to Subterra Construction Inc., to remove and replace roughly 1,000 linear feet of combined sewer pipeline and remove and replace manholes, drains, and sewer services at the following locations:
1) 16th Street (Intersection of 16th Street and X Street) 2) W Street (21st Street to 22nd Street)
3) 49th/50th Street Alley (Solons Alley to S Street)
4) Mule Alley (33rd Street to 34th Street)
These locations were identified as the highest priority locations from a list of work orders produced by the City's Wastewater Operations and Maintenance (O&M) staff and are all in need of repairs due to their existing age, deteriorating and poor structural integrity, and increased maintenance schedules.
Additionally, the City entered into a reimbursement agreement for $57,040 with the University of Pacific (UoP), who was developing a site at 3333 3rd Avenue, located along Mule Alley. The development was required to install a concrete alley as part of the construction, however, due to the poor condition of the sewer main, the City opted to replace the sewer prior to UoP's developer setting the concrete. To avoid slowing down UoP's project, the development proceeded with final approval prior to the sewer and concrete installation, however, UoP first provided $57,040 for the concrete alley that will be installed as part of this project, once the sewer has been properly installed.
Policy Considerations: City Council approval is required to award construction contracts of $250,000 or more. The action requested conforms with City Code Chapter 3.60, Articles I and III, which provide for award of competitively bid contacts to the lowest responsible bidder.
Economic Impacts: This project is expected to create 2.75 total jobs (1.58 direct jobs and 1.17 jobs through indirect and
File ID: 2024-01655 10/8/2024 Consent Item 9.
induced activities) and create $424,602.64 in total economic output ($267,630.29 of direct output and another $156,972.35 of output through indirect and induced activities).
The indicated economic impacts are estimates calculated using a calculation tool developed by the Center for Strategic Economic Research (CSER). CSER utilized the IMPLAN input-output model (2009 coefficients) to quantify the economic impacts of a hypothetical $1 million of spending in various construction categories within the City of Sacramento in an average one-year period. Actual impacts could differ significantly from the estimates and neither the City of Sacramento nor CSER shall be held responsible for consequences resulting from such differences.
Environmental Considerations: The subject projects were reviewed and determined to be categorically exempt from the California Environmental Quality Act (CEQA). The projects include replacing existing combined sewer mains, manholes, and drains (utility systems) involving negligible expansion of capacity (CEQA Guidelines Section 15302 (c)).
Sustainability: The proposed project is consistent with the 2040 General Plan goal PFS-3.6, "Combined Sewer System Rehabilitation and Improvements," as it will rehabilitate and improve the existing combined sewer system (CSS) to decrease flooding, CSS outflows and combined system overflows.
Commission/Committee Action: Not applicable.
Rationale for Recommendation: The project was advertised, and five bids were received and opened on August 28, 2024. Subterra Construction, Inc. was the lowest responsible bidder.
The bid results are as follows:
The Engineer's construction cost estimate was $682,000.00 Financial Considerations: Sufficient funds exist in the Combined Collection System Rehabilitation and Replace Project (X14170100, Fund 6006 and 6021) to award a contract to Subterra Construction, Inc. for an amount not-to-exceed $687,688.00.
Additionally, the City entered into a reimbursement agreement for $57,040 with UoP, which has been already been reimbursed to the project.
There are no General Funds allocated or planned for this project.
Local Business Enterprise (LBE): Subterra Construction Inc. is not an LBE but has partnered with Granite Construction Supply for this project to exceed the minimum LBE participation requirement. Granite Construction Supply will provide trench backfill and street restoration material.
CONTRACT ROUTING SHEETContract Cover/Routing Form: Must Accompany ALL Contracts; however, it is NOT part of the contract.General Information (Required)Original Contract # (supplements only): ________ Supplement/Addendum #: ___________________Assessor’s Parcel Number(s): ________________________________________________________________Contract Effective Date: _________ Contract Expiration Date (if applicable): _________$ Amount (Not to Exceed): ______________________ Adjusted $ Amount (+/-): _____________________Other Party: ______________________________________________________________________________Project Title: _____________________________________________________________________________Project #: ____________________________________ Bid/RFQ/RFP #: ___________________________City Council Approval: if YES, Council File ID#: __________Contract Processing ContactsDepartment: ______________________________Contract Coordinator: _______________________Project Manager: _________________________________Department Review and Routing(Signature) (Date)(Signature) (Date)(Signature) (Date)Special Instruction/Comments (i.e. recording requested, other agency signatures required, etc.)_______________________________________________________________________________________------------------FOR CLERK & IT DEPARTMENTS ONLY – DO NOT WRITE BELOW THIS LINE------------------ 10/08/2024$687,688.0SubTerra Construction, Inc.CSS Pipe Program Block 5 R&RX14170112B24141311035YES2024-01655UtilitiesAngelo VasquezJacqueline Martinez [email protected]
_______________________________________________________________________________________________________ ENGINEERING SERVICES DIVISION CONTRACT SPECIFICATIONSFOR CSS PIPE PROGRAM BLOCK 5 R&R PN: X14170112 B24141311035 Engineer’s Estimate: $682,000.00 For Pre-Bid Information Call: Separate PlansAngelo Vasquez Bid to be received before 2:00 PM Assistant Engineer 8/21/2024 (916) 808-1701 Security Desk, 1st Floor (City Clerk in-box) New City Hall 915 I Street, Sacramento, CA 95814 LBE PROGRAM PARTICIPATION For information on meeting the City of Sacramento’s Local Business Enterprise (LBE) project goals, please contact Procurement Services at (916) 808-6240, or visit the City of Sacramento’s small business web site at: http://portal.cityofsacramento.org/Finance/Procurement/Bid-Information#bidding-options ________________________________________________________________________________________
Department of Industrial Relations Registration and Reporting Requirements (SB 854) Labor Code Section 1725.5 (enacted by SB 854) requires all contractors bidding on this contract, all subcontractors listed in a bid for this contract, and any contractor or subcontractor performing any work under this contract, to be currently registered with the California Department of Industrial Relations (DIR), as specified in Labor Code Section 1725.5. Labor Code Section 1771.1 (enacted by SB 854) provides that a contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal (subject to the requirements of Section 4104 of the Public Contract Code), or engage in the performance of any contract for public work, unless currently registered and qualified to perform public work pursuant to Labor Code Section 1725.5. Every bidding contractor shall list the contractor’s current DIR registration number, and the current DIR registration number of all listed subcontractors, on the Subcontractor and Local Business Enterprise (LBE) Participation Verification Form included in the contractor’s bid. Pursuant to Labor Code Section 1771.1(b): (1) any bid received from a contractor that is not currently registered and qualified to perform public work pursuant to Labor Code Section 1725.5 shall be rejected as non-responsive; and (2) any bid listing one or more subcontractors on the bidder’s Subcontractor and Local Business Enterprise (LBE) Participation Verification Form that are not currently registered and qualified to perform public work pursuant to Labor Code Section 1725.5, shall be rejected as non-responsive, unless the listing was an inadvertent error and any of the conditions specified in Labor Code Section 1771.1(c) apply. This contract also is subject to compliance monitoring and enforcement by the DIR. For all contracts awarded on or after April 1, 2015, California Labor Code Section 1771.4 (enacted by SB 854) requires the contractor and all subcontractors to furnish electronic payroll records directly to the Labor Commissioner (in addition to City staff via the City’s electronic system). A Fact Sheet summarizing the provisions of SB 854 is attached. This is provided solely for informational purposes, and does not in any way affect the contractor’s and subcontractors’ obligation to comply in all respects with the provisions of SB 854, including the provisions referenced above, as well as all other applicable laws and regulations. The contractor shall disseminate these provisions to every lower-tier subcontractor and vendor required to provide labor compliance documentation. All questions regarding the City’s Labor Compliance Program should be directed to the Department’s contracts staff or the Labor Compliance Officer at (916) 808-4011. Pursuant to Sacramento City Code Section 3.60.190, all contractors and subcontractors shall comply with Section 1777.5 et seq., of the California Labor Code governing the employment of apprentices. Pursuant to Sacramento City Code Section 3.60.250 and Public Contract Code Section 22300, any contract awarded pursuant to this invitation to bid shall contain a provision permitting the substitution of securities for monies withheld to ensure performance under the contract, in accordance with the requirements and form specified by the City. Bid protests must be filled and maintained in accordance with the provisions of Sections 3.60.460 through 3.60.560 of the Sacramento City Code. Bid protests that do not comply with Sections 3.60.460 through 3.60.560 of the Sacramento City Code shall be invalid and shall not be considered. A bid protest fee of $750.00 is required at the time of filing. The term "bid protest" includes any bid protest that (1) claims that one or more bidders on this contract should be disqualified or rejected for any reason, (2) contests a City staff recommendation to award this contract to a particular bidder, or (3) contests a City staff recommendation to disqualify or reject one or more bidders on this contract. A copy of Sections 3.60.460 through 3.60.560 of the Sacramento City Code may be obtained from the Project Manager, or from the City Clerk, located at 915 I Street, 5th Floor, Sacramento, CA 95814.
The Project Manager’s contact information is: Angelo Vasquez, Department of Utilities, Engineering & Water Resource Division 1395 35thAvenue, Sacramento, CA 95822 Phone: (916) 808-1701 / Fax: (916) 808-1497 / Email: [email protected] BAN-THE-BOX REQUIREMENTS INTRODUCTION On September 6, 2016, the City of Sacramento enacted an ordinance regarding criminal conviction information in the employment application process (the “Ban-the-Box Ordinance”), which added Chapter 3.62 to the Sacramento City Code and amended Section 2.40.050 of the Sacramento City Code. The Ban-the-Box Ordinance prohibits “covered employers” from asking an applicant for employment to disclose, orally or in writing, information concerning the criminal conviction history of the applicant, including any inquiry about criminal conviction history on any employment application, until the employer has determined the applicant meets the minimum employment qualifications stated in any notice issued for the position. APPLICATION “City Contract” The Ban-the-Box Ordinance applies to all “city contracts.” The term “city contract” means a contract awarded after January 1, 2017 to a “covered employer” for services or a public project in return for compensation of $250,000 or more. The term “city contract” includes contracts for services or public projects that were awarded for an amount less than $250,000 but were amended to increase the total compensation to $250,000 or more. The Ban-the-Box Ordinance also applies when the aggregate value of all contracts for services or public projects the City has awarded to the same “covered employer” within the previous 12 months is $250,000 or more. The Ban-the-Box Ordinance does not apply to: (1) contracts awarded by the City Manager in response to an emergency; and (2) contracts for the purchase or lease of equipment, supplies, or other personal property, even if they include incidental services such as delivery, installation, or maintenance. “Covered Employer” The Ban-the-Box Ordinance only applies to “covered employers.” The term “covered employer” means a person who is a party to a “city contract” and has at least 20 employees working either full or part time. The number of employees that a contractor has is determined by adding the contractor’s employees and the employees of any “related person.” A person is a “related person” when any of the following circumstances exists: (1) The person and the person that is a party to a “city contract” are both corporations and: (a) Share a majority of members of their governing boards; or (b) Have two or more officers in common; or (c) Are controlled by the same majority shareholder or shareholders (control means more than 50% of the corporation’s voting power); or (d) Are in a parent-subsidiary relationship (such a relationship exists when one corporation directly or indirectly owns shares possessing more than 50% of another corporation’s voting power). (2) The person otherwise controls and directs, or is controlled and directed by, the person that is a party to a city contract, as determined by the City Manager, or City Manager designee. The term “covered employer” includes a subcontractor providing services under a “city contract” if the subcontractor has at least 20 employees, whether full- or part-time, or the amount of the subcontract is at least 25% of the amount of the “city contract.” The term “covered employer” does not include any unit of federal, state or local government. Exceptions The Ban-the-Box Ordinance provisions do not apply to: (1) a position for which a “covered employer” is otherwise required by law to conduct a criminal conviction history background check; or (2) a position that will not involve work pursuant to a “city contract.” Additionally, the Ban-the-Box Ordinance does not prevent a “covered employer” from conducting a criminal conviction history background check in subsequent stages of the application process after initially determining whether the applicant meets the minimum employment qualifications. COMPLIANCE It is the contractor’s responsibility to determine whether the aggregate value of $250,000 or more has been met, and to notify the City in writing whenever this is the case. It is also the contractor’s responsibility to ensure that all of its subcontractors who are covered by the Ban-the-Box Ordinance comply with the provisions of the Ban-the-Box Ordinance by including these requirements in all subcontracts covered by the Ban-the-Box Ordinance. VIOLATIONS AND MONITORING The Ban-the-Box Ordinance provides that any violation of the Ban-the-Box Ordinance by a “covered employer” constitutes a material breach of the contract, and authorizes the City to terminate the contract. The City may also enforce the Ban-the-Box Ordinance by investigating any alleged violation (but any failure of the City to investigate does not create a right of action against the City). The City may further require “covered employers” to verify compliance. ADDITIONAL INFORMATION For a complete description of the Ban-the-Box Ordinance provisions related to City contracts, refer to the Ban-the-Box Ordinance, codified at Sacramento City Code Chapter 3.62. The Sacramento City Code is available on the internet at www.cityofsacramento.org. For more information on the City’s Ban-the-Box Ordinance, contact Procurement Services at 916-808-6240 or email [email protected].
LBE INFORMATION The City of Sacramento’s Local Business Development program establishes an annual local business enterprise (LBE) participation goal for City contracts, and authorizes City departments to require minimum LBE participation levels in individual contracts. Under City Code section 3.60.270, all bidding contractors must meet or exceed the minimum LBE participation requirement specified in the contract’s bid specifications to qualify as a responsive bidder. For information on meeting the City of Sacramento’s Local Business Enterprise (LBE) project goals, please contact Procurement Services at (916) 808-6240, or visit the City of Sacramento’s small business web site at: http://portal.cityofsacramento.org/Finance/Procurement/Bid-Information#bidding-options CITYOF SACRAMENTOLBE PROGRAM -5/31/2023
REQUIREMENTS FOR THE LOCAL BUSINESS ENTERPRISE PROGRAM(LBE Program)1. INTRODUCTIONThe City of Sacramento has a Local Business Enterprise (LBE) Program to provide enhanced opportunities for local businesses to participate in the City's procurement and contracting activities. The Program began with an LBE Preference for bid and proposal evaluation. The Program was then expanded to require minimum LBE Participation levels in specific procurementopportunities. 2. APPLICATIONAs summarized in the table below, there are two components to the LBE Program: a. LBE Preference: For certain contracts, a 5% LBE Preference is applied during the bid evaluation process.b. LBE Participation Requirement: For certain contracts, a minimum 5% LBE participation level is required for a bidder to be considered responsive. Contracts Under $250,000Contracts $250,000 or more GoodsNon- Professional ServicesProfessional Services Public Projects GoodsNon- Professional ServicesProfessional Services Public Projects Apply 5% LBE Preference* YES YES YES YES NO NO YES NO Apply 5% Minimum LBE Participation Requirement NO NO NO NO NO YES YES YES * LBE Preference only applies if the proposed prime contractor qualifies as an LBE. Local Business Enterprise: A Local Business Enterprise (“LBE”) means a business enterprise, including but not limited to, a sole proprietorship, partnership, limited liability company, corporation, or other business entity that has a “legitimate business presence” within City limits or the unincorporated area of Sacramento County. A “legitimate business presence” within City limits or the unincorporated area of Sacramento County means: a. An established business entity operating within the selected areas for at least 12 consecutive months prior to submission of bid; and CITYOF SACRAMENTOLBE PROGRAM -5/31/2023
b. Legally operating a location in the City of Sacramento or unincorporated area1ofSacramento County that is either:(1) a principal business office or workspace; or (2) a regional, branch, or satellite office with at least one full-time employee.To qualify as an LBE, firms must meet these two requirements prior to the deadline for submission of bids or proposals. Upon the request of the City, firms shall provide proof of legally operating a location within City limits or the unincorporated County with the following documents:- Tax returns for the business;- Utility bill in the name of the business; - Business license; and/or - Secretary of State filings. Exceptions from LBE Preference and Participation RequirementsThe LBE Program does not apply to procurement processes for contracts funded with federal funds, goods or services purchased through cooperative purchase agreements, or contracts entered into in response to a declared emergency. 3. LBE PREFERENCEFor contracts under $250,000, firms that qualify as an LBE will receive a 5% preference on all City procurement opportunities. For professional service contracts only, this preference also applies to procurement opportunities of $250,000 or more. The proposed prime contractor must qualify as an LBE to receive LBE preference points. Utilizing an LBE subcontractor is not a basis for receiving LBE preference points. For contracts to be awarded in response to a solicitation for bids, a bid or quotation submitted by a firm that qualifies as an LBE will receive a 5% bid evaluation preference for the purpose of determining the lowest responsible bidder. This means that, for bid evaluation purposes, the total price bid by an LBE shall be reduced by 5%. However, this reduction only applies for bid evaluation purposes, and the resulting contract or purchase order will reflect the actual amount bid by the LBE. For contracts awarded in response to a solicitation for proposals or qualifications, a firm that qualifies as an LBE shall receive additional points during the scoring process, so the final score 1 “Unincorporated area” generally refers to the part of a county that is not part of any city. The unincorporated area of Sacramento County does not include the cities of Citrus Heights, Elk Grove, Folsom, Galt, Isleton, Rancho Cordova, Rancho Cordova, and Sacramento. (see https://www.saccounty.gov/Government/Pages/CitieswithintheCounty.aspx).
CITYOF SACRAMENTOLBE PROGRAM -5/31/2023
awarded to the LBE is increased by 5% of the total possible evaluation points. The City Manager does not have the authority to waive the application of the LBE Preference. Only the City Council can waive the application of the LBE Preference. No waiver is required for procurements that are otherwise excluded from the LBE Program (as listed above), including federally funded purchases. 4. LBE PARTICIPATION REQUIREMENTFor non-professional service, professional service, and public project contracts of $250,000 or more, a minimum 5% LBE participation level is required. To receive credit for the 5% minimumparticipation requirement, bidders must either (a) be an LBE, or (b) subcontract with a qualified LBE.Under City Code section 3.60.270, when the City establishes a minimum participation level for LBE's on a contract, no contractor shall be considered responsive unless its bid or proposal meets the minimum LBE participation level required. The City Manager (or designee) has the authority to waive or reduce the LBE Participation requirements on some procurement opportunities prior to acceptance of bids or proposals.PARTICIPATION LEVELLBE Participation: The percentage of LBE participation is determined based on the dollar value of the work to be performed. LBE credit may be obtained by utilizing LBE qualified subcontractors or suppliers, as outlined below.Participation Credit: To receive credit for LBE participation:1. An LBE contractor or subcontractor must: (1) be responsible for the execution of a distinct element of the work; (2) possess any license or certification required for the work; and (3) actually perform, manage, or supervise the work without subcontracting or otherwise shifting any portion of the work to another subcontractor.2. An LBE supplier must: (1) furnish materials or equipment that the supplier sells as a recurring, although not necessarily primary, part of its business; and (2) the materials or equipment must be necessary for performance of the work. Suppliers: Credit for an LBE supplier of materials or equipment is counted as 100% of the amount paid to the supplier for the materials or equipment. To receive this credit, LBE Suppliers must be listed on a Subcontractor and LBE Participation Verification Form and submitted with a bid or proposal.
CITYOF SACRAMENTOLBE PROGRAM -5/31/2023
Subcontractors (including Truckers): To receive credit for an LBE subcontractor, the subcontractor must be listed on a Subcontractor and LBE Participation Verification Form and submitted with a bid or proposal.Truckers: Credit for an LBE trucker is counted as 100% of the amount paid to the trucker for trucking/hauling services, not including any amount paid to the Trucker for the cost of any materials or equipment being transported by the Trucker.CONTRACTOR AND SUBCONTRACTOR REQUIREMENTS2LBE Records: The Contractor shall maintain records of all subcontracts with verified LBE subcontractors and records of materials purchased from verified LBE suppliers for one year after receiving final payment from the City. Such records shall show the name and business address of each LBE subcontractor or supplier and the total dollar amount actually paid to each LBE subcontractor or supplier. No later than 30 days after completion of the work performed under the contract, a summary of these records shall be prepared, certified correct by the Contractor's authorized representative and furnished to the City. The Contractor shall provide such other information, records, reports, certifications or other documents as may be required by the City, to determine compliance with any provision of the LBE Program or these specifications. Performance of LBE Subcontractors and Suppliers: The LBE subcontractors and suppliers listed by the Contractor shall perform the work and supply the materials or equipment for which they are listed on the Subcontractor and LBE Participation Verification Form, unless the Contractor has received prior written authorization from the City to perform the work with other forces or to obtain the materials or equipment from other sources. Reasons for requesting such authorization would include:1. The listed LBE subcontractor or supplier fails to execute a written contract based upon the general terms, conditions, plans, and specifications for the project. 2. The listed LBE subcontractor or supplier becomes bankrupt or insolvent. 3. The listed LBE subcontractor or supplier fails to meet the bond requirements of the Contractor. 4. The work performed or the materials or equipment provided by the listed LBE subcontractor or supplier are unsatisfactory or are not in accordance with the plans and specifications.5. The listed LBE subcontractor or supplier fails to perform its contractual obligations. 2 These requirements only apply to the LBE Participation component of the LBE Program CITYOF SACRAMENTOLBE PROGRAM -5/31/2023
6. It would be in the best interest of the City.Subcontractor Substitution: No substitution of an LBE subcontractor shall be made at any time without compliance with the Subletting and Subcontracting Fair Practices Act. If an LBE subcontractor is unable to perform successfully and is to be replaced, the Contractor shall make reasonable efforts to replace the original LBE subcontractor with another verified LBE subcontractor. The new LBE subcontractor must be verified at the time of substitution.
CITYOF SACRAMENTOLBE PROGRAM -5/31/2023
Reporting and Utilization Requirements and Sanctions: Failure to provide specific information, records, reports, certifications or any other documents required for compliance with these specifications, or failure to utilize one or more LBE's in substantial compliance with the LBE utilization indicated in the Contractor's bid or proposal (unless otherwise authorized by the City as provided herein, or when such failure results from changes to the work approved by the City), shall be considered a breach of the contract.A deduction may be made from the contract amount and the deduction shall not be more than 10% of the value of the work or materials or equipment that the subject LBE(s) were listed to perform or provide in the Contractor's bid or proposal. Deduction shall be made from any payment due the Contractor. This is in addition to any deduction that may be made under any other provision of the Contract, the Sacramento City Code, or State law.Hearing and Review of Division Manager Decision: Prior to making a deduction pursuant to the Reporting and Utilization Section above, the City shall provide written notice of the proposed deduction to the Contractor. The Contractor may, no later than 5 working days after receiving such notice, provide a written request to the City for a hearing to contest the proposed deduction. Upon receipt of a timely written request from the Contractor, the City shall schedule a hearing before the Division Manager (as defined in the City's Standard Specifications for Public Construction), and written notice of the date, time, and location of the hearing shall be provided to the Contractor not less than 5 working days prior to the date of the hearing. The hearing shall be conducted in the manner specified in Section 4-8 of the Standard Specifications, and the Division Manager shall prepare and forward to the Contractor a written decision as soon as practicable after the hearing. The Division Manager's decision shall be subject to review in accordance with the provisions of Section 4-9 of the Standard Specifications. Failure to request such review in compliance with the requirements set forth in Section 4-9 shall constitute acceptance of the Division Manager's decision by the Contractor. Written Notices: The written notices and request described above shall be provided by registered or certified mail (return receipt requested), by personal delivery, or by any other method that provides reliable evidence of the date of receipt. Written notice provided by personal delivery shall be deemed received on the date of delivery.
LBEstatus is applicable to the following: • Any Sacramento addresses which encompasses both the City & unincorporated Sacramento County – including neighborhoods like Rosemont, Antelope, Foothill Farms & Walerga. • North Highlands• Carmichael• Fair Oaks• Orangevale The map below can be found at: http://www.311.saccounty.net/Pages/Sacramento-County-Maps.aspx For an interactive map showing exact address locations within the City of Sacramento or unincorporatedCounty of Sacramento: http://generalmap.gis.saccounty.net/JSViewer/county_portal.html
Form approved by City Attorney 6-23-23 1
AGREEMENT (Construction Contract Over $25,000) THIS AGREEMENT, dated for identification , 2024 is made and entered into between the CITY OF SACRAMENTO, a municipal corporation (), an SubTerra Construction, Inc. 1350 Van Dyke Ave, STE 101, San Francisco, CA 94124 (Contractor) in the amount of SIX HUNDRED EIGHTY SEVEN THOUSAND SIX HUNDERED EIGHTY-EIGHT AND ZERO CENTS ($687,688.00). The City and Contractor hereby mutually agree as follows: 1. CONTRACT DOCUMENTS consist of the following items, which are hereby incorporated by reference as if set forth in full in this Agreement: Notice to Contractors Proposal Form submitted by the Contractor Instructions to Bidders Subcontractor and Local Business Enterprise Participation Form Drug-Free Workplace Policy and Affidavit Construction and Demolition (C&D) Debris Recycling Requirements Insurance Certification Federal or State funding requirements (if applicable) Local Business Enterprise (LBE) Requirements Requirements of the Non-Discrimination in Employee Benefits Code Ban-The-Box Requirements Addenda, if any This Agreement Standard Specifications Special Provisions Plans and Technical Specifications The drawings and other data and all developments thereof prepared by City pursuant to the Contract Any modifications of any of the foregoing made or approved by City, including but not limited to duly authorized change orders Unless specifically noted otherwise, references to the Standard Specifications shall mean and refer to the Standard Specifications for Public Construction of the City of Sacramento approved by the Sacramento City Council on November 10, 2020 (Resolution No. 2020-0354), and any subsequent amendments thereto approved by the Sacramento City Council or the Sacramento City Manager. Work called for in any one Contract Document and not mentioned in another is to be performed and executed as if mentioned in all Contract Documents. The table of contents, titles and headings contained in the Contract Documents are provided solely to facilitate reference to various provisions of the Contract Documents and in no way affect or limit the interpretation of the provisions to which they refer.
Form approved by City Attorney 6-23-23 2
2. DEFINITIONSUnless otherwise specifically provided herein, all words and phrases defined in the StandardSpecifications shall have the same meaning and intent in this Agreement.3. AGREEMENT CONTROLSIn the event of a conflict between any of the terms and conditions set forth in this Agreementand the terms and conditions set forth in other Contract Documents, the terms andconditions set forth in this Agreement shall prevail, except that the provisions of any dulyauthorized change order shall prevail over any conflicting provisions of this Agreement.4. SCOPE OF CONTRACTContractor agrees to furnish all tools, equipment, apparatus, facilities, labor, material andtransportation necessary to perform and complete in a good and workmanlike manner to thesatisfaction of City, all the Work called for in the Contract Documents entitled:CSS PIPE PROGRAM BLOCK 5 R&R (PN: X14170112) Including the Work called for in the following alternative bid items described in the Proposal Form: __________________________________________________________ Contractor agrees to perform such Work in the manner designated in and in strict conformity with the Contract Documents. 5. CONTRACT AMOUNT AND PAYMENTSCity agrees to pay and Contractor agrees to accept, as complete payment for the above Work,in accordance with the schedule and procedures set forth in the Contract Documents andsubject to deductions, withholdings and additions as specified in the Contract Documents, atotal sum that shall not exceed the total bid .In addition, subject to deductions, withholdings and additions as specified in the ContractDocuments, payment for individual items of the Work shall be computed as follows:A.Form, Contractor shall be paid the lump sum price(s) Proposal Form; andB.Contractor shall be paid the sum computed at such unit price, or computed at adifferent price if such different price is determined by City in accordance with theStandard Specifications, based on the actual amount of each such item performedand/or furnished and incorporated in the Work; provided that in no event shall the
Form approved by City Attorney 6-23-23 3
total sum for a unit price item exceed the total bid amount set forth for such item in authorized by Change Order. 6. PROGRESS PAYMENTS Subject to the terms and conditions of the Contract, City shall cause payments to be made upon demand of Contractor as follows: A. On or about the first of the month, the Engineer shall present to the Contractor a statement showing the amount of labor and materials incorporated in the Work through the twentieth (20) calendar day of the preceding month. After both Contractor and Engineer approve the statement in writing, and compliance officer provides written approval, the City shall issue a certificate for ninety-five (95) percent of the amount it shall find to be due, subject to any deductions or withholdings authorized or required under the Contract or any applicable Laws or Regulations. B. No inaccuracy or error in said monthly estimates shall operate to release Contractor from damages arising from such Work or from enforcement of each and every provision of the Contract Documents, and City shall have the right subsequently to correct any error made in any estimate for payment. C. Contractor shall not be paid for any defective or improper Work. D. The remaining five (5) percent of the value of the Work performed under the Contract, if unencumbered and subject to any deductions or withholdings authorized or required under the Contract or any applicable Laws or Regulations, shall be released not later than sixty (60) days after completion and final acceptance of the Work by City. Acceptance by Contractor of the final payment shall constitute a waiver of all claims against the City arising under the Contract Documents, except for disputed claims in stated amounts that the Contractor specifically reserves in writing, but only to the extent that the Contractor has complied with all procedures and requirements applicable to the presentation and processing of such claim(s) under the Contract Documents. Contractor shall be entitled to substitute securities for retention or to direct that payments of retention be made into escrow, as provided in Public Contract Code Section 22300, upon execution of the Escrow Agreement for Security Deposits in Lieu of Retention. E. The parties agree that, for purposes of the timely progress payment requirements specified in Public Contract Code Section 20104.50, the date that the City receives a statement jointly approved by the Contractor and the Engineer as provided above shall be deemed to constitute the date that City receives an undisputed and properly submitted payment request from the Contractor. Progress payments not made within 30 days after this date may be subject to payment of interest as provided in Public Contract Code Section 20104.50.
Form approved by City Attorney 6-23-23 4
F. This Contract is subject to compliance monitoring and enforcement by the California Department of Industrial Relations, as specified in California Labor Code section 1771.4. 7. RETENTION OF SUMS CHARGED AGAINST CONTRACTOR When, under the provisions of this Contract or any applicable Laws or Regulations, City is authorized or required to withhold, deduct or charge any sum of money against Contractor, City may deduct and retain the amount of such charge from the amount of the next succeeding progress estimate(s), or from any other moneys due or that may become due Contractor from City. If, on completion or termination of the Contract, sums due Contractor are insufficient to pay City's charges, City shall have the right to recover the balance from Contractor or its Sureties. 8. COMMENCEMENT AND PROSECUTION OF WORK Contractor shall commence the Work not later than fifteen (15) working days after the date of the written Notice to Proceed from City to Contractor and shall diligently prosecute the Work tcommence the W means to engage in a continuous program on-site including, but not limited to, site clearance, grading, dredging, land filling and the fabrications, erection, or installation of the Work. The Notice to Proceed shall be issued within fifteen (15) calendar days following execution of the Agreement by the City and the filing by Contractor of the required Bonds and proof of insurance, provided that the Engineer may delay issuance of the Notice to Proceed if the Engineer determines in the etion that conditions on the site of the Work are unsuitable for commencement of the Work. After the Notice to Proceed is issued, the continuous prosecution of Work by Contractor shall be subject only to Excusable Delays as defined in this Agreement. 9. TIME OF COMPLETION The entire Work shall be brought to completion in the manner provided for in the Contract Documents on or before _ONE HUNDRED SIXTY-FIVE (165) working_ days from the date of the Notice to PCompletion Date) unless extensions of time are granted in accordance with the Contract Documents. Failure to complete the entire Work by the Completion Date and in the manner provided for in the Contract Documents shall subject Contractor to liquidated damages as provided in this Agreement. Time is and shall be of the essence in the performance of the Contract and the Work. 10. PAYMENTS DO NOT IMPLY ACCEPTANCE OF WORK The payment of any progress payment, or the acceptance thereof by Contractor, shall not constitute acceptance of the Work or any portion thereof and shall in no way reduce the liability of Contractor to replace unsatisfactory work or material, whether or not the
Form approved by City Attorney 6-23-23 5
unsatisfactory character of such work or material was apparent or detected at the time such payment was made. 11. ACCEPTANCE NOT RELEASE Contractor shall correct immediately any defective or imperfect work or materials that may be discovered before final acceptance of the entire Work, whether or not such defect or imperfection was previously noticed or identified by the City. The inspection of the Work, or any part thereof, shall not relieve Contractor of any of its obligations to perform satisfactory work as herein specified. Failure or neglect on the part of City or any of its officers, employees or authorized agents to discover, identify, condemn or reject defective or imperfect work or materials shall not be construed to imply an acceptance of such work or materials, if such defect or imperfection becomes evident at any time prior to final acceptance of the entire Work, nor shall such failure or neglect be construed as barring City from otherwise recovering damages or such a sum of money as may be required to repair or rebuild the defective or imperfect work or materials whenever City may discover the same, subject only to any statutes of limitation that may apply to any such claim. 12. CITY'S RIGHT TO TAKE POSSESSION OF THE WORK IN WHOLE OR IN PART The City shall have the right at any time to enter upon the Work and perform work not covered by this Contract, or to occupy and use a portion of the Work, prior to the date of the final acceptance of the Work as a whole, without in any way relieving Contractor of any obligations under this Contract. 13. NO WAIVER OF REMEDIES Neither the inspection by City, its officers, employees or agents, nor any certificate or other approval for the payment of money, nor any payment for, nor acceptance of the whole or any part of the Work by City, nor any extensions of time, nor any position taken by City, its officers, employees or its agents shall operate as a waiver of any provision of the Contract Documents nor of any power herein reserved to City or any right to damages herein provided, nor shall any waiver of any breach of this Agreement be held to be a waiver of any other or subsequent breach. All remedies provided in the Contract Documents shall be taken and construed as cumulative; in addition to each and every other remedy herein provided, the City shall have any and all equitable and legal remedies that it would in any case have. 14. WARRANTY Except as otherwise expressly provided in the Contract Documents, and excepting only items of routine maintenance, ordinary wear and tear and unusual abuse or neglect by City, Contractor warrants and guarantees all Work executed and all supplies, materials and devices of whatsoever nature incorporated in or attached to the Work, or otherwise provided as a part of the Work pursuant to the Contract, to be absolutely free of all defects of workmanship and materials for a period of one year after final acceptance of the entire Work by the City.
Form approved by City Attorney 6-23-23 6
Contractor shall repair or replace all work or material, together with any other work or material that may be displaced or damaged in so doing, that may prove defective in workmanship or material within this one year warranty period without expense or charge of any nature whatsoever to City. In the event that Contractor shall fail to comply with the conditions of the foregoing warranty within ten (10) days after being notified of the defect in writing, City shall have the right, but shall not be obligated, to repair, or obtain the repair of, the defect and Contractor shall pay to City on demand all costs and expense of such repair. Notwithstanding anything herein to the contrary, in the event that any defect in workmanship or material covered by the foregoing warranty results in a condition that constitutes an immediate hazard to public health or safety, or any property interest, or any person, City shall have the right to immediately repair, or cause to be repaired, such defect, and Contractor shall pay to City on demand all costs and expense of such repair. The foregoing statement relating to hazards to health, safety or property shall be deemed to include both temporary and permanent repairs that may be required as determined in the sole discretion and judgment of City. and other product warranties to the City, prior to completion and final acceptance of the Work by City. obligations under this Section 14, and the Contractor and its Surety shall be jointly and severally liable for these obligations. 15. LIQUIDATED DAMAGES IF WORK NOT COMPLETED ON TIME A. The actual fact of the occurrence of damages and the actual amount of the damages that City would suffer if the entire Work, and/or any specified portion thereof, were not completed within the time(s) specified herein are dependent upon many circumstances and conditions that could prevail in various combinations, and for this reason, it is impracticable and extremely difficult to fix the actual damages. Damages that City would suffer in the event of such delay include: loss of the use of the project; expenses of prolonged assignment to the project of an architectural and/or engineering staff; prolonged costs of administration, inspection, and supervision; increased operational expenses and/or impaired operation of other facilities dependent upon completion of the project; and the loss and inconvenience suffered by the public within the City of Sacramento by reason of the delay in the completion of the project or portion thereof. Accordingly, the parties agree, and by execution of this Agreement, Contractor acknowledges that it understands and agrees, that the the time of entering into the Contract to estimate the damages that may be incurred by City and the public in completion of the Work and/or any specified portion thereof, and shall be presumed to be the amount of damages sustained by the failure of Contractor to complete the entire Work and/or any specified portion thereof within the time(s) specified herein.
Form approved by City Attorney 6-23-23 7
B. Contractor shall pay liquidated damages to City for failure to complete the entire Work by the Completion Date (as extended in accordance with the Contract Documents, if applicable) in the amount of one thousand five hundred dollars ($1,500) for each calendar day after the Completion Date (as extended in accordance with the Contract Documents, if applicable), continuing to the time at which the entire Work is completed. Such amount is the actual cash value agreed upon by the City and Contractor as the loss to City and the public resulting from Contractor's default. The parties agree, and by execution of this Agreement, Contractor acknowledges that it understands and agrees, that the foregoing provisions provide for the imposition of liquidated damages from the Completion Date (as extended in accordance with the Contract Documents, if applicable) until the date of completion of the entire Work as determined by the Engineer in accordance with Section 8-4 of the Standard Specifications, whether or not the Work or any portion thereof is claimed or determined to be substantially complete prior to such date of completion. C. In the event Contractor shall become liable for liquidated damages, City, in addition to all other remedies provided by law, shall have the right to withhold any and all payments that otherwise would be or become due Contractor until the liability of Contractor under this section is finally determined. City shall have the right to use and apply such payments, in whole or in part, to reimburse City for all liquidated damages due or to become due to City. Any remaining balance of such payments shall be paid to Contractor only after discharge in full of all liability incurred by Contractor under this section or otherwise under any provision of the Contract Documents or any applicable Law or Regulation. If the sum so retained by City is not sufficient to discharge all such liabilities of Contractor, Contractor shall continue to remain liable to City until all such liabilities are satisfied in full. No failure by City to withhold any payment as specified above shall in any manner be construed to constitute a release liabilities. 16. INDEMNITY AND HOLD HARMLESS A. Contractor shall defend, hold harmless and indemnify the City, its officers, employees, and agents, and each and every one of them, from and against any and all actions, damages, costs, liabilities, claims, demands, losses, judgments, penalties, costs and expenses of every type and description, whether arising on or off the site of the Work, including, but not limited to, any fees and/or costs reasonably incurred by s staff attorneys or outside attorneys and any fees and expenses incurred in enforcing this provision (hereafter collectively referred to as , including but not limited to Liabilities arising from personal injury or death, damage to personal, real or intellectual property or the environment, contractual or other economic damages, or regulatory penalties, arising out of or in any way connected with performance of or failure to perform the Work by the Contractor, any subcontractor or agent, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, whether or not
Form approved by City Attorney 6-23-23 8
(i) such Liabilities are caused in part by a party indemnified hereunder, or (ii) such Liabilities are litigated, settled or reduced to judgment; provided that the foregoing indemnity does not apply to liability for damages for death or bodily injury to persons, injury to property, or other loss, damage or expense to the extent arising from (i) the sole negligence or willful misconduct of, or defects in design furnished by, City, its agents, servants, or independent contractors who are directly responsible to City, or (ii) the active negligence of City. B. The existence or acceptance by City of any of the insurance policies or coverages Section 16, nor shall the limits of such insurance limit the liability of Contractor hereunder. The provisions of this Section 16 shall survive any expiration or termination of the Contract. 17. CONTRACTOR SHALL ASSUME RISKS Until the completion and final acceptance by City of all Work under this Contract, the Work shall be under Contractor's responsible care and charge, and Contractor, at no cost to City, shall rebuild, repair, restore and make good all injuries, damages, re-erections, and repairs occasioned or rendered necessary by accidental causes of any nature, to all or any portions of the Work. 18. GENERAL LIABILITY OF CONTRACTOR Except as otherwise herein expressly stipulated, Contractor shall perform all the Work and furnish all the labor, materials, tools, equipment, apparatus, facilities, transportation, power and light, and appliances, necessary or proper for performing and completing the Work herein required in the manner and within the time herein specified. The mention of any specific duty or liability of Contractor shall not be construed as a limitation or restriction of any general liability or duty of Contractor, and any reference to any specific duty or liability shall be construed to be solely for the purpose of explanation. 19. INSURANCE During the entire term of the Contract, Contractor shall maintain the insurance coverage described in this Section 19. Full compensation for all premiums that Contractor is required to pay for the insurance coverage described herein shall be included in the compensation specified for the Work performed by Contractor under this Contract. No additional compensation will be excess of the specified minimum limits and coverages shall be available to the City. It is understood and agreed by the Contractor that its liability to the City shall not in any way be limited to or affected by the amount of insurance coverage required or carried by the Contractor in connection with this Contract.
Form approved by City Attorney 6-23-23 9
A. Minimum Scope & Limits of Insurance Coverage (1) Commercial General Liability Insurance providing coverage at least as broad as ISO CGL Form 00 01 on an occurrence basis for bodily injury, including death, of one or more persons, property damage, and personal injury, arising out of activities performed by or on behalf of Contractor and its subcontractors, products and completed operations of Contractor and its subcontractors, and premises owned, leased, or used by Contractor and its subcontractors, with limits of not less than two million dollars ($2,000,000) per occurrence. The policy shall provide contractual liability and products and completed operations coverage for the term of the policy. (2) Automobile Liability Insurance providing coverage at least as broad as ISO Form CA 00 01 for bodily injury, including death, of one or more persons, property damage, and personal injury, with limits of not less than one million dollars ($1,000,000) per accident. The policy shall provide coverage for owned, non-owned, and/or hired autos as appropriate to the operations of the Contractor. No automobile liability insurance shall be required if Contractor completes the following certification: (Contractor initials) (3) Excess Insurance: The minimum limits of insurance required above may be satisfied by a combination of primary and umbrella or excess insurance coverage; provided that any umbrella or excess insurance shall contain, or be endorsed to contain, a provision that it shall apply on a primary basis for the benefit of the CITY, and any insurance or self-insurance maintained by CITY, its officials, employees, or volunteers shall be in excess of such umbrella or excess coverage and shall not contribute with it. (4) with statutory limits, and Liability Insurance with limits of not less than one million dollars subrogation in favor of the City. completes the following certification:
Form approved by City Attorney 6-23-23 10
employ anyone. I am exempt from the legal requirements to (Contractor initials) B. Additional Insured Coverage (1) Commercial General Liability Insurance: The City, its officials, employees, and volunteers shall be covered by policy terms or endorsement as additional insureds as respects general liability arising out of: activities performed by or on behalf of Contractor and its subcontractors; products and completed operations of Contractor and its subcontractors; and premises owned, leased, or used by Contractor and its subcontractors. (2) Automobile Liability Insurance: The City, its officials, employees, and volunteers shall be covered by policy terms or endorsement as additional insureds as respects auto liability. C. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: (1) primary insurance as respects City, its officials, employees, and volunteers. Any insurance or self-insurance maintained by City, its officials, employees, or volunteers shall be in exccontribute with it. (2) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its officials, employees, or volunteers. (3) each insured against whom claim is made or suit is brought, except with (4) City will be provided with thirty (30) days written notice of cancellation or material change in the policy language or terms. D. Acceptability of Insurance Self-insured retentions, policy terms or other variations that do not comply with the requirements of this Section 3 must be declared to and approved by the City in writing prior to execution of this Contract.
Form approved by City Attorney 6-23-23 11
E. Verification of Coverage (1) Contractor shall furnish City with certificates and required endorsements evidencing the insurance required. Copies of policies shall be delivered to the City on demand. Certificates of insurance shall be signed by an authorized representative of the insurance carrier. (2) For all insurance policy renewals during the term of this Contract, Contractor shall send insurance certificates reflecting the policy renewals directly to: City of Sacramento c/o EXIGIS LLC P.O. Box 4668 ECM- #35050 New York, NY 10168-4668 Insurance certificates also may be faxed to (888) 355-3599, or e-mailed to: [email protected] (3) The City may withdraw its offer of contract or cancel this Contract if the certificates of insurance and endorsements required have not been provided prior to execution of this Contract. The City may withhold payments to Contractor or cancel the Contract if the insurance is canceled or Contractor otherwise ceases to be insured as required herein. F. Subcontractors Contractor shall require and verify that all subcontractors maintain insurance coverage that meets the minimum scope and limits of insurance coverage specified in subsection A, above. 20. FAILURE TO MAINTAIN BONDS OR INSURANCE If, at any time during the performance of this Contract, Contractor fails to maintain any item of the bonds and/or insurance required under the Contract in full force and effect, Contractor shall immediately suspend all work under the Contract and notify City in writing of such failure. After such notice is provided, or if City discovers such failure and notifies Contractor, the City thereafter may withhold all Contract payments due or that become due until notice is received by City that such bonds and/or insurance have been restored in full force and effect and that the premiums therefor have been paid for a period satisfactory to the Division of Risk Management. Contractor shall not resume work until notified by City to do so, and the City shall have no responsibility or liability for any costs incurred by Contractor as a result of such suspension of Work.
Form approved by City Attorney 6-23-23 12
In addition to the foregoing, any failure to maintain any item of the required bonds and/or insurance at any time during the performance of this Contract will be sufficient cause for termination of the Contract by City. The Contractor shall be solely responsible for, and shall defend, indemnify and hold harmless the City, its officers, employees and agents against and from, any and all damages, claims, losses, actions, costs or other expenses of any kind incurred by any party as a direct or indirect result of any suspension of Work or termination of the Contract under the provisions of this Section. 21. EXCUSABLE DELAYS For the purpose of these Contract Documents, the term "Excusable Delay" shall mean, and is limited to, delay caused directly by: acts of God; acts of a public enemy; fires; inclement weather as determined by the Engineer; riots; insurrections; epidemics; quarantine restrictions; strikes; lockouts; sitdowns; acts of a governmental agency; priorities or privileges established for the manufacture, assemble, or allotment of materials necessary in the Work by order, decree or otherwise of the United States or by any department, bureau, commission, committee, agent, or administrator of any legally constituted public authority; changes in the Work ordered by City insofar as they necessarily require additional time in which to complete the Work; the prevention of Contractor from commencing or prosecuting the Work because of the acts of others, excepting Contractor's subcontractors or suppliers; or the prevention of Contractor from commencing or prosecuting the Work because of a Citywide failure of public utility service. The term "Excusable Delay" shall specifically not include: (i) any delay that could have been avoided by the exercise of care, prudence, foresight and diligence on the part of Contractor; (ii) any delay in the prosecution of any part of the Work that does not constitute a Controlling Operation, whether or not such delay is unavoidable; (iii) any reasonable delay resulting from time required by City for review of any Contractor submittals and for the making of surveys, measurements and inspection; and, (iv) any delay arising from an interruption in the prosecution of the Work on account of reasonable interference by other Contractors employed by City that does not necessarily prevent the completion of the entire Work within the time specified. Excusable Delays, if any, shall operate only to extend the Completion Date (not in excess of the period of such delay as determined by City) and shall not under any circumstances increase the amount City is required to pay Contractor except as otherwise provided in these Contract Documents. 22. CONTRACTOR TO SERVE NOTICE OF DELAYS Whenever Contractor foresees any delay in the prosecution of the Work, and in any event as soon as possible (not to exceed a period of ten (10) calendar days) after the initial occurrence of any delay that Contractor regards as or may later claim to be an Excusable Delay, the Contractor shall notify the Engineer in writing of such delay and its cause, in order that the Engineer: (i) may take immediate steps to prevent if possible the occurrence or continuance of the delay; or (ii) if this cannot be done, may determine whether the delay is to be considered excusable, how long it continues, and to what extent the prosecution and
Form approved by City Attorney 6-23-23 13
completion of the Work are delayed thereby. Said written notice shall constitute an application for an extension of time only if the notice requests such an extension and sets forth the Contractor's estimate of the additional time required together with a full description of the cause of the delay relied upon. After the completion of any part or whole of the Work, the Engineer, in estimating the amount due Contractor, will assume that any and all delays that may have occurred in its prosecution and completion were not Excusable Delays, except for such delays for which the Contractor has provided timely written notice as required herein, and that the Engineer has found to be excusable. Contractor shall not be entitled to claim Excusable Delay for any delay for which the Contractor failed to provide such timely written notice. 23. EXTENSION OF TIME If the Contractor complies with Section 22, above, and the Engineer finds a delay claimed by the Contractor to be an Excusable Delay, the Contractor shall be allowed an extension of time to complete the Work that is proportional to the period of Excusable Delay determined by the Engineer, subject to the approval by City of a change order granting such time extension. During a duly authorized extension for an Excusable Delay, City shall not charge liquidated damages against the Contractor for such delay. If the City extends the time to complete the Work as provided herein, such extension shall in no way release any warranty or guarantee given by Contractor pursuant to the provisions of the Contract Documents, nor shall such extension of time relieve or release the sureties of the Bonds provided pursuant to the Contract Documents. By executing such Bonds, the Sureties shall be deemed to have expressly agreed to any such extension of time. The granting of any extension of time as provided herein shall in no way operate as a waiver on the part of City of its rights under this Contract, excepting only extension of the Completion Date for such period of Excusable Delay as may be determined by the Engineer and approved by a duly authorized change order. 24. NO PAYMENT FOR DELAYS No damages or compensation of any kind shall be paid to Contractor or any subcontractor because of delays in the progress of the Work whether or not such delays qualify for extension of time under this Agreement; except that this provision shall not preclude the recovery of damages for a delay caused by the City that is unreasonable under the circumstances and that is not within the contemplation of the parties, provided that the Contractor timely submits all such written notice(s) and fully complies with such other procedures as may be specified in the Contract Documents or any Laws or Regulations for Contractor to claim damages for such delay. 25. CHANGES IN THE WORK Changes in the Work authorized or directed in accordance with the Contract Documents and extensions of time of completion made necessary by reason thereof shall not in any way release any warranty or guarantee given by Contractor pursuant to the provisions of the
Form approved by City Attorney 6-23-23 14
Contract Documents, nor shall such changes in the Work relieve or release the Sureties on Bonds provided pursuant to the Contract Documents. By executing such Bonds, the Sureties shall be deemed to have expressly agreed to any such change in Work and to any extension of time made by reason thereof. 26. TERMINATION AFTER COMPLETION DATE In addition to any other rights City may have, if any services or work required under the Contract (including but not limited to punch list items) are not completed as of the Completion Date (as adjusted by any extensions of time for Excusable Delays granted pursuant to the Contract Documents), City may terminate the Contract at any time after the Completion Date ( as adjusted by any extensions of time for Excusable Delays granted pursuant to the Contract Documents), by providing a written notice to Contractor specifying the date of termination. Such notice also may specify conditions or requirements that Contractor must meet to avoid termination of the Contract on such date. If Contractor fails to fulfill all such conditions and requirements by such termination date, or, if no such conditions or requirements are specified, Contractor shall cease rendering services and performing work on such termination date, and shall not be entitled to receive any compensation for services rendered or work performed after such termination date. In the event of such termination, Contractor shall remain liable to City for liquidated damages incurred for any period of time prior to the termination date. In addition to any other charges, withholdings or deductions authorized under the Contract or any Laws or Regulations, if City terminates the Contract pursuant to this section, City may withhold and deduct from any payment and/or retention funds otherwise due Contractor any sum necessary to pay the City's cost of completing or correcting, or contracting for the completion or correction of, any services or work under the Contract that are not completed to the satisfaction of the City or that otherwise are deficient or require correction as of such termination date, including but not limited to incomplete punch list items. Such costs shall If the amount of payment(s) and/or retention funds otherwise due the Contractor are insufficient to pay such costs, City shall have the right to recover the balance of such costs from the Contractor and/or its Surety(ies). 27. TERMINATION FOR CONVENIENCE Upon written notice to the Contractor, the City may at any time, without cause and without prejudice to any other right or remedy of the City, elect to terminate the Contract for the convenience of City. In such case, the Contractor shall be paid (without duplication of any items, and after deduction and/or withholding of any amounts authorized to be deducted or withheld by the Contract Documents or any Laws or Regulations): A. For Work executed in accordance with the Contract Documents prior to the effective date of termination and determined to be acceptable by the Engineer, including fair and reasonable sums for overhead and profit on such Work;
Form approved by City Attorney 6-23-23 15
B. For reasonable claims, costs, losses, and damages incurred in settlement of terminated contracts with subcontractors, suppliers, and others; and C. For reasonable expenses directly attributable to termination. Contractor shall not be paid for any loss of anticipated profits or revenue for any Work not performed prior to termination, nor for any economic loss arising out of or resulting from such termination, except for the payments listed in this section. ContraSection 14 of this Agreement shall apply, and Contractor shall remain responsible for all obligations related to such warranty, with respect to all portions of the Work performed prior to the effective date of the termination for convenience pursuant to this section. The City shall be entitled to have any or all remaining Work performed by other contractors or by any other means at any time after the effective date of a termination for convenience pursuant to this section. 28. TERMINATION FOR BREACH OF CONTRACT If Contractor abandons the Work under this Contract, or if the Contract or any portion of the Contract is sublet or assigned without the consent of the City, or if the Engineer determines t in respect to the rate of progress of the Work are not being fulfilled or any part thereof is unnecessarily delayed, or if Contractor violates or breaches, or fails to execute in good faith, any of the terms or conditions of the Contract, or if Contractor refuses or fails to supply enough properly skilled labor or materials or refuses or fails to make prompt payment to subcontractors for material or labor, or if Contractor disregards any Laws or Regulations or proper instruction or orders of the Engineer, then, notwithstanding any provision to the contrary herein, the City may give Contractor and its Sureties written notification to immediately correct the situation or the Contract shall be terminated. In the event that such notice is given, and, in the event such situation is not corrected, or arrangements for correction satisfactory to the City are not made, within ten (10) calendar days from the date of such notice or within such other period of time as may be specified by the City in the notice, the Contract shall upon the expiration of said period cease and terminate. In the event of any such termination, City may take over the Work and prosecute the Work to completion, or otherwise, and the Contractor and its Sureties shall be liable to City for any cost occasioned City thereby, as hereinafter set forth. In the event City completes the Work, or causes the Work to be completed, no payment of any kind shall be made to Contractor until the Work is complete. The cost of completing the Work, including but not limited to, extra costs of project administration and management incurred by City, both direct or indirect, shall be deducted from any sum then due, or that becomes due, to Contractor from City. If sums due to Contractor from City are less than the cost of completing the Work, Contractor and its Sureties shall pay City a sum equal to this difference on demand. In the event City completes the Work, and there is a sum remaining due to Contractor after City deducts the costs of completing the Work, then City shall pay such sum to Contractor. The Contractor ies shall be jointly and severally liable for all obligations imposed on Contractor hereunder.
Form approved by City Attorney 6-23-23 16
No act by City before the Work is finally accepted, including, but not limited to, exercise of other rights under the Contract, actions at law or in equity, extensions of time, payments, assessments of liquidated damages, occupation or acceptance of any part of the Work, waiver of any prior breach of the Contract or failure to take action pursuant to this section upon the happening of any prior default or breach of Contractor, shall be construed to be a waiver or estop to this Section upon any subsequent event, occurrence or failure by Contractor to fulfill the terms and conditions of the Contract. The rights of City to terminate the Contract pursuant to this Section and pursuant to Sections 26 and 27 are cumulative and are in addition to all other rights of City pursuant to the Contract and at law or in equity. 29. CONTRACTOR BANKRUPT If Contractor should commence any bankruptcy proceeding, or if Contractor is adjudged a bankrupt, or if Contractor makes any assignment for the benefit of creditors, or if a receiver is appointed on account of Contractor's insolvency, then the City may, without prejudice to any other right or remedy, terminate the Contract and complete the work by giving notice as provided in Section 28 above. 30. If the City terminates the Contract pursuant to Section 28 or Section 29 above: A. The Surety shall be fully responsible for all of as if the Surety were a party to the Contractobligations, as provided in the Contract Documents, to complete and provide a one-year warranty of the entire Work, pay liquidated damages and indemnify, defend and hold harmless City, up to the full amount of the performance bond. B. services, equipment or materials performed or provided in connection with the Work or any portion thereof, up to the full amount of the payment bond. 31. ACCOUNTING RECORDS OF CONTRACTOR During performance of the Contract and for a period of three (3) years after completing the entire Work, Contractor shall maintain all accounting and financial records related to the Contract and performance of the Work in accordance with generally accepted accounting practices, and shall keep and make such records available for inspection and audit by representatives of the City upon reasonable written notice.
Form approved by City Attorney 6-23-23 17
32. USE TAX REQUIREMENTS During the performance of this Agreement, CONTRACTOR, for itself, its assignees and successors in interest, agrees as follows: A. Use Tax Direct Payment Permit: For all leases and purchases of materials, equipment, supplies, or other tangible personal property used to perform the Agreement and shipped from outside California, the Contractor and any subcontractors leasing or purchasing such materials, equipment, supplies or other tangible personal property shall obtain a Use Tax Direct Payment Permit from the SBE criteria and requirements. B. Sellers Permit: For any construction contract and any construction subcontract in the amount of $5,000,000 or more, Contractor and the subcontractor(s) shall obtain sellers permits from the SBE and shall register the jobsite as the place of business for the purpose of allocating local sales and use tax to the City. Contractor and its subcontractors shall remit the self-accrued use tax to the SBE, and shall provide a copy of each remittance to the City. C. The above provisions shall apply in all instances unless prohibited by the funding source for the Agreement. 33. NON-DISCRIMINATION IN EMPLOYEE BENEFITS This Agreement may be subject to the requirements of Sacramento City Code Chapter 3.54, Non-Discrimination in Employee Benefits by City Contractors. The Contract Documents include a summary of the requirements of Sacramento City Code Chapter 3.54, entitle-signing this Agreement, Contractor acknowledges and represents that Contractor has read and understands these requirements and agrees to fully comply with all applicable requirements of Sacramento City Code Chapter 3.54. If requested by City, Contractor agrees to promptly provide such documents and information as may be required by City Chapter 3.54 constitutes a material breach of this Agreement, for which the City may terminate the Agreement and pursue all available legal and equitable remedies. 34. CONSIDERING CRIMINAL CONVICTION INFORMATION IN THE EMPLOYMENT APPLICATION PROCESS This Agreement may be subject to the requirements of Sacramento City Code Chapter 3.62, Procedures for Considering Criminal Conviction Information in the Employment Application Process. The Contract Documents include a summary of the requirements of Sacra-The-Agreement, Contractor acknowledges and represents that Contractor has read and
Form approved by City Attorney 6-23-23 18
understands these requirements and agrees to fully comply with all applicable requirements of Sacramento City Code Chapter 3.62. If requested by City, Contractor agrees to promptly provide such documents and information as may be required by City to verifChapter 3.62 constitutes a material breach of this Agreement, for which the City may terminate the Agreement and pursue all available legal and equitable remedies. Contractor agrees to require its subcontractors to fully comply with all applicable requirements of Sacramento City Code Chapter 3.62, and include these requirements in all subcontracts covered by Sacramento City Code Chapter 3.62.