Agenda packet — Mayor and City Council, November 2, 2022 (part 1 of 6)

Mayor and City Council of the City of San Bernardino Page 1

CITY OF SAN BERNARDINO
AGENDA

FOR THE

REGULAR MEETING OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO,

MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO ACTING AS THE SUCCESSOR

AGENCY TO THE REDEVELOPMENT AGENCY, MAYOR AND CITY COUNCIL OF THE CITY OF SAN

BERNARDINO ACTING AS THE SUCCESSOR HOUSING AGENCY TO THE REDEVELOPMENT

AGENCY, AND MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO ACTING AS THE

HOUSING AUTHORITY, AND MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO

ACTING AS THE SAN BERNARDINO JOINT POWERS FINANCING AUTHORITY WEDNESDAY, NOVEMBER 02, 2022
5:30 PM CLOSED SESSION 7:00 PM OPEN SESSION
FELDHEYM CENTRAL LIBRARY • SAN BERNARDINO, CA 92410 • WWW.SBCITY.ORG Theodore Sanchez John Valdivia Damon L. Alexander
COUNCIL MEMBER, WARD 1 COUNCIL MEMBER, WARD 7
MAYOR
Sandra Ibarra Robert D. Field
COUNCIL MEMBER, WARD 2 CITY MANAGER
Juan Figueroa Sonia Carvalho
COUNCIL MEMBER, WARD 3 CITY ATTORNEY
Fred Shorett Genoveva Rocha
COUNCIL MEMBER, WARD 4 CITY CLERK
Ben Reynoso
COUNCIL MEMBER, WARD 5
Kimberly Calvin
COUNCIL MEMBER, WARD 6
Welcome to a meeting of the Mayor and City Council of the City of San Bernardino.

PLEASE VIEW THE LAST PAGES OF THE AGENDA FOR PUBLIC COMMENT OPTIONS, OR CLICK ON THE FOLLOWING LINK: TINYURL.COM/MCCPUBLICCOMMENTS Please contact the City Clerk's Office (909) 3845002 two working days prior to the meeting for any requests for reasonable accommodation, to include interpreters.

To view PowerPoint presentations, written comments, or any revised documents for this meeting date, use this link: tinyurl.com/agendabackup. Select the corresponding year and meeting date folders to view documents.

Mayor and City Council of the City of San Bernardino Page 2

CALL TO ORDER
Attendee Name
Council Member, Ward 1 Theodore Sanchez
Council Member, Ward 2 Sandra Ibarra
Mayor ProTem, Ward 3 Juan Figueroa
Council Member, Ward 4 Fred Shorett
Council Member, Ward 5 Ben Reynoso
Council Member, Ward 6 Kimberly Calvin
Council Member, Ward 7 Damon L Alexander
Mayor JohnValdivia
City Manager Robert D. Field
City Attorney Sonia Carvalho
City Clerk Genoveva Rocha
5:30 P.M.

CLOSED SESSION PUBLIC COMMENT
CLOSED SESSION p. 12
A)CONFERENCE WITH LEGAL COUNSEL EXISTING LITIGATION (Pursuantto Government Code Section 54956.9(a) and (d)(1):
a. Jackie Aboud v. John Valdivia, et al., San Bernardino Superior Court Case No.

CIVDS2013562
b. Karen Cervantes v. John Valdivia, et al., San Bernardino Superior Court Case No.

CIVDS2012538
c. Mirna Cisneros v. John Valdivia, et al., San Bernardino Superior Court Case No.

CIVDS2012926
d. Donald Smith v. John Valdivia, et al., San Bernardino Superior Court Case No.

CIVSB2025375
e. Matthew Brown v. City of San Bernardino, et al., San Bernardino Superior Court Case No. CIVSB2025900
f. City of San Bernardino v. Fox Property Holdings LLC, et al., San Bernardino Superior Court Case No. CIVSB2218532
B) CONFERENCE WITH LABOR NEGOTIATOR (Pursuant to Government Code Section 54957.6):

Agency Designated Representative: City Manager
Employee Organization: San Bernardino Police Management Association C) CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION Significant exposure to litigation (Pursuant to Government Code Section 54956.9(d) (2)): One case: EEOC Complaint No. 480202203838.

D) PUBLIC EMPLOYEE EVALUATION (Pursuant to Government Code Section 54957 (b)(1)): City Manager
Mayor and City Council of the City of San Bernardino Page 3 7:00 P.M.

INVOCATION AND PLEDGE OF ALLEGIANCE

CLOSED SESSION REPORT

CITY MANAGER UPDATE

MAYOR & CITY COUNCIL UPDATES/REPORTS ON CONFERENCES & MEETINGS

PRESENTATIONS

1. Community Member Recognition: Edwin Johnson, Chords Enrichment Program for Festival p. 14

PUBLIC COMMENTS FOR ITEMS LISTED AND NOT LISTED ON THE AGENDA

DISCUSSION

2. Award Design/Build Contract for the Carousel Mall Demolition (Ward 1) p. 15 Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California:

1. Determine approval of the Design/Build Contract is statutorily exempt from environmental review pursuant to Sections 15268 and 15269 of the State’s guidelines implementing the California Environmental Quality Act; and

2. Approve an award of a Design/Build Contract with Resource Environmental, Inc. in the amount of $7,734,000 adding an allowance in the amount of $2,266,000, for a total amount of $10,000,000; and

3. Authorize the Agency Director of Administrative Services to amend the FY2022/24 CIP to include Carousel Mall Demolition Project (“Project”) in the total project cost amount of $10,000,000; and

4. Authorize the City Manager or designee to execute all documents related to the Project.

3. Administrative Policy for the Sale of Real Property (All Wards) p. 181 Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California, review and approve the proposed Administrative Policy for the Sale of Real Property as presented.

PUBLIC HEARING

4. Public Hearing on Annexation No. 6 to Community Facilities District 20181 (Safety Services), (TR 20494), Adoption of Resolutions for Annexing into the Community Facilities District (Ward 6) p. 191
Recommendation:

The Mayor and City Council of the City of San Bernardino, California

1. Hold a Public Hearing; and

2. Adopt Resolution No. 2022226 of the Mayor and City Council of the City of San Bernardino, California, acting as the legislative body of the City of San Bernardino Community Facilities District No. 20181 (Safety Services), annexing territory to Community Facilities District No. 20181 (Safety Services), and calling elections therein; and
Mayor and City Council of the City of San Bernardino Page 4

3. Hold a special landowner election and canvass the election; and

4. Adopt Resolution No. 2022227 of the Mayor and City Council of the City of San Bernardino, California, acting as the legislative body of the City of San Bernardino Community Facilities District No. 20181 (Safety Services) certifying the results of the November 2, 2022, annexation, and special tax election.

5. Public Hearing on Annexation No. 7 to Community Facilities District 20181 (Safety Services), (TR 20495), Adoption of Resolutions for Annexing into the Community Facilities District (Ward 4) p. 218
Recommendation:

The Mayor and City Council of the City of San Bernardino, California:

1. Hold a Public Hearing; and

2. Adopt Resolution No. 2022228 of the Mayor and City Council of the City of San Bernardino, California, acting as the legislative body of the City of San Bernardino Community Facilities District No. 20181 (Safety Services), annexing territory to Community Facilities District No. 20181 (Safety Services), and calling elections therein; and

3. Hold a special landowner election and canvass the election; and

4. Adopt Resolution No. 2022229 of the Mayor and City Council of the City of San Bernardino, California, acting as the legislative body of the City of San Bernardino Community Facilities District No. 20181 (Safety Services) certifying the results of the November 2, 2022, annexation and special tax election.

6. Approval of the Draft Fiscal Year 20212022 Consolidated Annual Performance and Evaluation Report (CAPER) to the US Department of Housing and Urban Development p. 258
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, conduct a public hearing on the draft Fiscal Year 20212022 Consolidated Annual Performance and Evaluation Report and authorize its submission to the United States Department of Housing and Urban Development (HUD).

7. Community Facilities District No. 20211 (Ferree Street) 2022 Special Tax Bonds (Ward 3) p. 305
Recommendation:

Adopt Resolution No. 2022225 of the Mayor and City Council of the City of San Bernardino, California, authorizing the issuance of, not to exceed $4,000,000, aggregate principal account of Community Facilities District No. 20211 (Ferree Street) of the City of San Bernardino Special Tax Bonds, Series 2022; approving a form of preliminary official statement, a form of the fiscal agent agreement, a form of bond purchase agreement, and a form of continuing disclosure agreement; making certain determinations relating thereto; and authorizing certain other action in connect therewith.

8. Property Tax Exchange Agreement for the Annexation of Mountain View Avenue Bridge into the City of San Bernardino and detachment from the City of Redlands p.514
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California, Adopt Resolution No. 2022224 of the Mayor and City Council of the City of San Bernardino, California, determining there will be no property tax revenues to be exchanged between the City of San Bernardino, the City of Redlands, and the San Bernardino County Fire Protection District resulting from the jurisdictional change described by LAFCO case Mayor and City Council of the City of San Bernardino Page 5 number 3258 for portions of real property of approximately 6.27 acres in total area located at the Mountain View Avenue Bridge (portions of APN 0292011370000, APN 029201142 0000, and portion of the road bridge) (Attachment 1).

CONSENT CALENDAR

9. Adopt Ordinance No. MC1593 p. 539
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Ordinance No. MC1593 approving Development Code Amendment (Zoning Map Amendment) 2103 changing the Zoning District Classification of one (1) parcel (APN: 0266 04140) containing approximately 3.94 acres from Commercial General (CG1) to Industrial Heavy (IH), pursuant to a Mitigated Negative Declaration (Attachment 1).

10. Agreement with San Bernardino International Airport Authority (All Wards) p. 547 Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California:

1. Authorize the City Manager to execute a Service Agreement between the San Bernardino International Airport Authority and the City of San Bernardino for Law Enforcement Services.

11. Adoption of Ordinance No. MC1598 Levying Special Taxes in Community Facilities District No. 20222 (Palm) (Ward 3) p. 561
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California:

1. Adopt Ordinance No. MC1598 of the Mayor and City Council of the City of San Bernardino, California, acting as the Legislative Body of Community Facilities District No. 20222 (Palm), authorizing the Levy of Special Taxes in such Community Facilities District.

12. Adoption of Ordinance No. MC1599 Levying Special Taxes in Community Facilities District No. 20221 (Highland/Medical) (Ward 3) p. 580
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California:

1. Adopt Ordinance No. MC1599 of the Mayor and City Council of the City of San Bernardino, California, acting as the Legislative Body of Community Facilities District No. 20221 (Highland/Medical), authorizing the Levy of Special Taxes in such Community Facilities District.

13. Approval of Commercial and Payroll Disbursements (All Wards) p.599 Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California approve the commercial and payroll disbursements for October 2022.

14. Amendment No. 1 to the Master Agreement with Renne Public Policy Group (RPPG) (All Wards) p. 641
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California, authorize the City Manager to execute Amendment No. 1 to the agreement between the City of San Bernardino and Renne Public Policy Group (RPPG), to extend and increase the agreement for grant consultation services for an amount not to exceed $57,250 for the extension period of December 2, 2022, through June 30, 2023.

Mayor and City Council of the City of San Bernardino Page 6

15. Approving Salary Ranges and Amending the Salary Schedule p. 665 Recommendation:

Adopt Resolution No. 2022230 of the Mayor and City Council of the City of San Bernardino, California:

1. Increasing the salary range for the classification of Shelter Veterinarian;

2.Approving a onetime, nonpensionable lump sum payment of $20,000 as a hiring incentive for the Shelter Veterinarian position; and

3.Amending the Citywide salary schedule for fulltime, parttime, temporary, and seasonal positions.

16. Adoption of Ordinance Amending Chapter 2.82.020 of the San Bernardino Municipal Code to increase City Council Member Compensation p. 680 Recommendation:

Adopt Ordinance No. MC1595 of the Mayor and City Council of the City of San Bernardino, California, amending Chapter 2.82.020 of the San Bernardino Municipal Code to increase City Council Member Compensation.

17. Library Literacy Program Grant Funding p. 688
Recommendation:

Adopt Resolution No. 2022231 of the Mayor and City Council of the City of San Bernardino, California:

1.Accepting grant funding in the amounts of $141,840 from the California Department of Education; $67,465 for Adult Literacy Services, $22,906 for Family Literacy Services and $53,642 for English as a Second Language from the California State Library for Literacy Program services.

2.Authorizing the Agency Director of Administrative Services to amend the FY 2022/23 Adopted Budget for the Literacy Program including appropriating $53,642 in both revenues and expenditures for the new English as a Second Language Program and adjusting the Grant Fund budget to account for differences in estimated grant funding and actual grant funds received.

18. Award Professional Services Agreement to Environmental Kleanup Services Inc. for commercial building demolition, abatement, and cleanup services p. 774 Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California

1.Approve the award of a Professional Service Agreement with Environmental Kleanup Services Inc. for residential and commercial building demolition, abatement, and cleanup services; and

2.Authorize the Agency Director of Administrative Services to issue a Purchase Order to Environmental Kleanup Services, Inc. in a total amount not to exceed $142,570 including contingencies.

19. Pioneer Memorial Cemetery Rules and Regulations p. 800 Recommendation:

It is recommended that the Mayor and City Council of San Bernardino, California, adopt the Pioneer Memorial Cemetery Rules and Regulations.

Mayor and City Council of the City of San Bernardino Page 7

20. Agreement with Z & T Ventures, Inc p.824
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California, authorize the City Manager to execute an agreement between the City of San Bernardino and Z & T Ventures, Inc.

21. Resolution Declaring Intent to Annex Territory: Community Facilities District No. 20191 (Maintenance Services): Annexation No. 25, Tax Zone No. 26 (Palm) (Ward 4) p. 868 Recommendation:

Adopt Resolution No. 2022232 of the Mayor and City Council of San Bernardino, California, declaring its intention to annex territory into Community Facilities District No. 20191 (Maintenance Services) of the City of San Bernardino, adopting a map of the area to be proposed (Annexation No. 25) and authorizing the levy of a special taxes therein.

22. Agreement with St. Francis Electric, LLC., for Traffic Signal and Related Component Knockdown Services (All Wards) p. 924
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California:

1.Authorize the City Manager to execute a Maintenance Services Agreement with St.

Francis Electric, LLC., for traffic signal supplies and related component knockdown services; and

2.Authorize the Agency Director of Administrative Services to appropriate funds in the amount of $251,500 to the Public Works Operations and Maintenance General Fund and Gas Tax Fund; and

3. Authorize the issuance of a purchase order in the amount not to exceed $251,500.

23. Issuance of a Purchase Order to Arts Connection for Professional Services for the 4th Street Alley Beautification Project (Ward1) p. 1185 Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California:

1.Authorize the City Manager to execute a Professional Services Agreement with Arts Connection for 4th Street Alley Beautification Project;and

2.Authorize the Agency Director of Administrative Services to issue a purchase order to Arts Connection for Professional Services in an amount not to exceed $137,000 for the 4th Street Alley Beautification Project

24. Resolution Authorizing the City Manager to Execute an Encroachment Permit and Covenant Agreement with the San Manuel Band of Mission Indians (Ward 4) p.1210 Recommendation:

Adopt Resolution No. 2022233 of the Mayor and City Council of the City of San Bernardino, California, authorizing the City Manager to execute an Encroachment Permit and Covenant Agreement with the San Manuel Band of Mission Indians, a federally recognized Indian tribe, for the encroachment of improvements that include above ground wayfinding signage located at Victoria Avenue north of Piedmont Drive, San Bernardino, California.

Mayor and City Council of the City of San Bernardino Page 8

25. Cooperative Maintenance Agreement with the City of Redlands for the Mountain View Avenue Mission Creek Bridge (Ward 3) p. 1240
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California, approve the Cooperative Maintenance Agreement with the City of Redlands for the Mountain View Avenue Mission Creek Bridge.

26. Award Design Services Agreement for Skate Park Design at Speicher Park (Wards 2) p. 1252
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California, approve the award of a Design Services Agreement with Newline Skateparks for the design of the skate park.

ITEMS TO BE CONSIDERED FOR FUTURE MEETINGS

27. City’s Participation in the Annual Rendezvous Back to Route 66 (All Wards) – Council Member Alexander p. 1373

28. Process for Renaming Seccombe Park (Ward 1) – Council Member Sanchez p. 1374

29. Establishing a Citywide Neighborhood Watch Program (Ward 2) Council Member Ibarra

30. Providing Appointed Commissioners a per Meeting Stipend (All Wards) – Council Member Calvin p. 1375

31. Initiate a Request for Proposals seeking a consultant to prepare a feasibility study for an electric trolley system in the Downtown area (Wards 1, 3) – Council Member Reynoso p. 1376

ADJOURNMENT
The next joint regular meeting of the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency will be held on November 16, 2022, at the Feldheym Central Library located at 555 West 6th Street, San Bernardino, California 92401. Closed Session will begin at 5:30 p.m. and Open Session will begin at 7:00 p.m.

Mayor and City Council of the City of San Bernardino Page 9

CERTIFICATION OF POSTING AGENDA
I, Genoveva Rocha, CMC, City Clerk for the City of San Bernardino, California, hereby certify that the agenda for the November 02, 2022 Regular Meeting of the Mayor and City Council and the Mayor and City Council acting as the Successor Agency to the Redevelopment Agency was posted on the City's bulletin board located at 201 North "E" Street, San Bernardino, California, at the Feldheym Central Library located at 555 West 6th Street, San Bernardino, California, and on the City's website sbcity.org on Friday, October 28, 2022.

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

Mayor and City Council of the City of San Bernardino Page 10 NOTICE: Any member of the public may address this meeting of the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency on any item appearing on the agenda by approaching the microphone in the Council Chamber when the item about which the member desires to speak is called and by asking to be recognized.

Any member of the public desiring to speak to the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency concerning any matter not on the agenda but which is within the subject matter jurisdiction of the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency may address the body at the end of the meeting, during the period reserved for public comments. Said total period for public comments shall not exceed 60 minutes, unless such time limit is extended by the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency. A three minute limitation shall apply to each member of the public, unless such time limit is extended by the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency. No member of the public shall be permitted to "share" his/her three minutes with any other member of the public.

Speakers who wish to present documents to the governing body may hand the documents to the City Clerk at the time the request to speak is made.

The Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency may refer any item raised by the public to staff, or to any commission, board, bureau, or committee for appropriate action or have the item placed on the next agenda of the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency. However, no other action shall be taken nor discussion held by the Mayor and City Council and the Mayor and City Council Acting as the Successor Agency to the Redevelopment Agency on any item which does not appear on the agenda unless the action is otherwise authorized in accordance with the provisions of subdivision (b) of Section 54954.2 of the Government Code.

Public comments will not be received on any item on the agenda when a public hearing has been conducted and closed.

Mayor and City Council of the City of San Bernardino Page 11

PUBLIC COMMENT OPTIONS
Please use ONE of the following options to provide a public comment:
1) Written comments can be emailed to [email protected]. Written public comments received up to 4:00 p.m. on the day of the meeting (or otherwise indicated on the agenda) will be provided to the Mayor and City council and made part of the meeting record. They will not be read aloud unless you require an ADA accommodation.

Please note: messages submitted via email and this page are only monitored from the publication of the final agenda until the deadline to submit public comments. Please contact the City Clerk at 9093845002 or [email protected] for assistance outside of this timeframe. 2) Attend the meeting in person and fill out a speaker slip. Please note that the meeting Chair decides the cutoff time for public comment, and the time may vary per meeting. If you wish to submit your speaker slip in advance of the meeting, please submit your request to speak using the form on the following page:tinyurl.com/mccpubliccomments. 3) REMOTE PARTICIPATION VIA ZOOM (For public comment only; Meeting will not be viewable on Zoom)
a) You can use a mobile phone or a landline to dial into a Zoom meeting. i) Dial (669) 9006833. When prompted, enter the Meeting ID: 6778459453 Passcode:2021
The public may begin joining the meeting on Zoom or by calling in to be added to the speaker queue at 5:15 PM for Closed Session.

Once admitted to the Zoom Public Comment meeting, to request to speak at the appropriate time:
ii) Dial *9 from your phone to raise your hand via Zoom If calling in, staff will confirm the last four digits of the caller's phone number and unmute them; the caller must then press *6 to speak from their device. Callers are encouraged, but not required, to identify themselves by name. Each caller will be provided three (3) minutes to speak. If you are calling in, please turn your volume down on your television or other devices to limit any feedback when you speak.
b) Join the Meeting by clicking on the Zoom link below:
https://sbcityorg.zoom.us/j/6778459453?pwd=ZTkzdUJtcDMrbmFNQnVDSFhvaXQxZz0 Meeting ID: 6778459453
Passcode: 2021
You can also Go to Zoom.us and click "Join a Meeting" at the top.

Enter the Meeting ID: 6778459453
Passcode: 2021
Public Hearings:

If you are commenting on a Public Hearing, please stay signed on to the Zoom session or sign on when the Public Hearing is announced. You will be prompted by staff when the item is being discussed.

Printed on 10/28/2022

CLOSED SESSION
City of San Bernardino
Request for Council Action
Date: November 2, 2022
To: Honorable Mayor and City Council Members
From: Sonia Carvalho, City Attorney
Department: City Attorney’s Office
Subject: Closed Session
A) CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Pursuant to Government Code Section 54956.9(a) and (d)(1):
a. Jackie Aboud v. John Valdivia, et al., San Bernardino Superior Court Case No. CIVDS2013562
b. Karen Cervantes v. John Valdivia, et al., San Bernardino Superior Court Case No. CIVDS2012538
c. Mirna Cisneros v. John Valdivia, et al., San Bernardino Superior Court Case No. CIVDS2012926
d. Donald Smith v. John Valdivia, et al., San Bernardino Superior Court Case No. CIVSB2025375
e. Matthew Brown v. City of San Bernardino, et al., San Bernardino Superior Court Case No. CIVSB2025900
f. City of San Bernardino v. Fox Property Holdings LLC, et al., San Bernardino Superior Court Case No. CIVSB2218532
B)CONFERENCE WITH LABOR NEGOTIATOR (Pursuant to Government Code Section 54957.6):

Agency Designated Representative: City Manager
Employee Organization: San Bernardino Police Management Association Packet Pg. 12
C) CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION Significant exposure to litigation (Pursuant to Government Code Section 54956.9(d)(2)): One case: EEOC Complaint No. 480-2022-03838.

D) PUBLIC EMPLOYEE EVALUATION (Pursuant to Government Code Section 54957 (b)(1)): City Manager
Packet Pg. 13

PRESENTATIONS
City of San Bernardino
Request for Council Action
Date: November 2, 2022
To: Honorable Mayor and City Council Members
From: Robert D. Field, City Manager
By: Lydie Gutfeld, Director of Parks, Recreation & Community Services
Department: Parks, Recreation & Community Services
Subject: Community Member Recognition: Edwin Johnson,
Chords Enrichment Program for Festival
Packet Pg. 14

DISCUSSION
City of San Bernardino
Request for Council Action
Date: November 2, 2022
To: Honorable Mayor and City Council Members
From: Robert D. Field, City Manager;
Daniel Hernandez, Agency Director of Public Works,
Operations and Maintenance
Department: Public Works
Subject: Award Design/Build Contract for the Carousel Mall Demolition (Ward 1)
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California:

2. Approve an award of a Design/Build Contract with Resource Environmental, Inc. in the amount of $7,734,000 adding an allowance in the amount of $2,266,000, for a total amount of $10,000,000; and

3. Authorize the Agency Director of Administrative Services to amend the FY2022/24 CIP to include Carousel Mall Demolition Project (“Project”) in the total project cost amount of $10,000,000; and

4. Authorize the City Manager or designee to execute all documents related to the Project.

Background
The Carousel Mall is a 43-acre property located in the historic heart of Downtown Packet Pg. 15
San Bernardino. In 1972, the mall opened its doors as the Central City Mall with major anchor stores including Harris Company, J.C. Penny, and Montgomery Wards with a variety of inline tenants. By the 1980s, the mall began to decline, and efforts were made to rebrand the mall as the Carousel Mall. At the turn of the century, the anchor stores began to close their doors leaving only inline tenants in the mall. After 45 years of operations, the Carousel Mall finally closed its doors to the public in 2017.

Although the Carousel Mall’s closure impacted the community, it has created a new opportunity for growth and development in the historic core of Downtown San Bernardino. Most of the Carousel Mall property is controlled by the City of San Bernardino with the exception of the Harris Company Department Store and the Enterprise Building, formerly known as the Andersen Building, located in front of E Street, which are connected to the mall. The City’s ownership of the property is through its former Redevelopment Agency and is therefore subject to the dissolution act process for all redevelopment agencies in California. This property has been identified as one of the main catalysts for the future revitalization of downtown San Bernardino. The sale and development of this property asset is of key importance to the City’s future success.

On July 20, 2022, the Mayor and City Council authorized staff to solicit a Design/Build proposals for the demolition of the mall and approved a contract with Redwood Private Security for a 24/7 security patrol of the Carousel Mall grounds.

Discussion
Public Safety
The Carousel Mall has historically been a critical economic element for downtown San Bernardino and the overall San Bernardino community. Since its closure in 2017, the Carousel Mall has become a health and safety burden for the City of San Bernardino. Transients have intruded into the mall through the doors and roof, causing structural damage to the building and have removed wiring and valuables to salvage. In addition, the recent May 2022 three alarm fire inside the mall created more structural damage due to the use of water to extinguish the fire. In the last twelve months, more than 56 fires reported in the mall caused by transients. The breaching and vandalism of the property create costs and potential liability for the City.

As indicated in the July 20, 2022, staff report, according to the Facility Maintenance Division Manager, facilities employees spend approximately 25% of their time addressing issues associated with vandalism and breaches at the Mall which continues to be the case. In the last six months, Facilities have spent in excess of $68,000 in labor and materials including overtime to secure the Mall. The time spent at the mall takes away valuable resources from the City to address maintenance and repair needs in occupied buildings in the City.

Packet Pg. 16
In addition to the City’s liability concerns, the owner of the neighboring Harris Building has asserted that the condition of the Carousel Mall has caused damage to its building because transients travel between the two sites. Addressing the Carousel Mall will help mitigate whatever liability might exist from claims like those of the Harris Building owners.

Furthermore, the following data was provided by the San Bernardino County Fire Department and the San Bernardino Police Department respectively.

Fire Statistics
Incident Type 2020 2021 2022 Total
Medical 10 14 20 44
Commercial
Structure Fire 0 3 23 26
Other Fire 2 11 17 30
Hazmat 1 0 0 1
Investigation/alarm 0 2 2 4
Public Service 1 1 0 2
Total 14 31 62 107
Police Statistics
Incident Type 2020 2021 2022 Total
Service Call 56 121 124 301
Based on the data above, the amount of time and resources by the County Fire Department and the San Bernardino Police Department has increased year over year. Additionally, on June 6, 2022, a letter (Attachment 4) was received by the Office of the Fire Marshal expressing their concern with the condition of the mall which they believe creates a high potential for a fire to ignite grow rapidly and spread.

Staff strongly believes the demolition of the Carousel Mall is a necessary and viable solution to prevent safety and health concerns, eliminate the need to allocate valuable city resources, and reduce/eliminate the costs of maintaining a vacant building.

San Bernardino Municipal Code
The Carousel Mall is over 50 years old and per the Municipal Code requires determination prior to demolition. Chapter 15.37 (Historic Building Demolition Packet Pg. 17
Ordinance) of the Municipal Code requires an analysis of historical significance be prepared and considered by the Development and Environmental Review Committee (DERC), the Arts and Historical Preservation Commission, and the Planning Commission prior to the demolition of a building 50 years old or older unless a determination is made, supported by findings of fact, by the Building Official that declares the building is dangerous and constitutes an imminent threat to public health and safety. Despite continuous attempts to secure the building, the Carousel Mall has become an attractive nuisance, with many individuals trespassing on the property and entering the building through the numerous entrances, resulting in significant vandalism and destruction of the interior spaces. Continued trespassing, transient activity, and vandalism has created unsafe environment for both security staff and trespassers due to broken glass, unstable structural components, general debris, criminal activities, and lack of safe egress. As a result, the Building Official declares the building is dangerous and constitutes an imminent threat to public health and safety which are ground to proceed with the demolition.

Request for Proposal- Design-Build Contract
On July 26, 2022, the City released a Request for Prequalification Statement from Design-Build Entities for the Carousel Mall Demolition Project with a deadline to submit by August 18, 2022.

Seven (7) companies qualified to continue with the Design-Build Contract:

1. Resource Environmental, Inc. of Cerritos California

2. AD Improvements of Downey, California

3. Griffith Company of Brea California

4. Silverado Contractor, Inc. of Chino, California

5. AMPCO of Irvine, California

6. Integrated Demolition and Remediation, Inc. of Anaheim, California

7. America Wrecking, Inc, of South El Monte, California.

Of the seven (7) prequalified companies, six (6) submitted a proposal. After further evaluation of the proposals from a technical and cost perspective, interviews, and reference checks, it was determined that Resource Environmental, Inc. is best equipped and positioned to handle this project on behalf of the City.

Environmental Review
Approval of the Design/Build contract for the Carousel Mall Demolition Project (“Project”) is statutorily exempt from the California Environmental Quality Act (“CEQA”) on multiple grounds. First, the Project is a ministerial approval exempt pursuant to State CEQA Guidelines section 15268 (Ministerial Projects). No discretionary Demolition Permit is required pursuant to San Bernardino Municipal Code section

15.37.040. Given the Carousel Mall building’s structural damage caused by vandalism and fire damage, the building is not safe and constitutes an imminent threat to the health and safety of the public.

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Additionally, as detailed above, the Project is exempt pursuant to State CEQA Guidelines section 15269 (Emergency Projects), as it is necessary to prevent a public health & safety emergency. Transient breaches of the Carousel Mall site have resulted in numerous fires, endangering public health and safety. Waiting to conduct full environmental review for any future redevelopment of the Carousel Mall site, which could take several years, would endanger the public due to increased risk of fire in the interim. Further, the Project is proposed as a direct result of past fire emergencies on the Carousel Mall site.
2021-2025 Strategic Targets and Goals
This project is consistent with Key Target No. 1e: Improved Operational & Financial Capacity - Minimize risk and litigation exposure. Approval of this item will allow staff to begin mall demolition process, which reduces the risk and improves the safety and health of the public.

Fiscal Impact
The initial cost of the demolition will be covered by using Fund Balance to ensure that the demolition can be completed expeditiously. This will not result in the use of required reserves. If Council approves the action, staff will follow up with any necessary budgetary actions at a future meeting. Staff intends to explore options to cover these costs including the possible issuance of long-term debt and the possibility of requiring such costs to be covered by any future development deals.

Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California:

2. Approve an award of a Design/Build Contract with Resource Environmental, Inc. in the amount of $7,734,000 adding an allowance in the amount of $2,266,000, for a total amount of $10,000,000; and

3. Authorize the Director of Administrative Services to amend the FY202/24 CIP to include Carousel Mall Demolition Project (“Project”) in the total project cost amount of $10,000,000; and

4. Authorize the City Manager or designee to execute all documents related to the Project.

Attachments
Attachment 1 Design/Build Contract
Attachment 2 Resource Environmental, Inc. Proposal
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Attachment 3 Resource Environmental, Inc, Fee
Attachment 4 San Bernardino County Fire Letter
Attachment 5 Building Official Letter
Ward:

First Ward
Synopsis of Previous Council Actions:

July 20, 2022 - Mayor and City Council authorized staff to solicit a Design/Build proposals for the demolition of the mall and approved a contract with Redwood Private Security for a 24/7 security patrol of the Carousel Mall grounds.

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1 CITY OF SAN BERNARDINO
Design/Build Contract for

CAROUSEL MALL DEMOLITION

PROJECT

CITY OF SAN BERNARDINO
Public Works Department
201 North “E” Street, 2nd Floor
San Bernardino, California 92401
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2 DESIGN-BUILD CONTRACT BETWEEN

THE CITY OF SAN BERNARDINO
AND RESOURCE ENVIRONMENTA, INC.

FOR THE CAROUSEL MALL DEMOLITION PROJECT
This Design-Build Contract (“Contract”) is made and entered into this 2 nd day of
November, 2022 by and between the CITY OF SAN BERNARDINO, a charter city and municipal corporation organized and operating under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, CA 92401(hereinafter referred to as “City”) and Resource Environmental, Inc. (hereinafter collectively referred to as “Design-Build Entity” or “DBE”). City and DBE are sometimes individually referred to as “Party” and collectively as “Parties.”

RECITALS
A. City desires to enter a single project for the turnkey design and construction for the Carousel Mall Demolition Project (“Project”) as set forth in this Contract. Because of the unique nature of the Project, City desires to engage a single design-build entity to engineer and implement the Project.

B. The DBE submitted a Proposal for the Project, which was selected as providing the bestvalue for the Project.

C. DBE desires to perform and assume responsibility for the provision of the design and construction services, and such other services as required by the City on the terms and conditions set forth in this Contract and DBE represents that it is experienced in providing professional planning, design, and construction services to public entities, is appropriately licensed in the State of California to perform such services, and is familiar with the Scope of Work.

TERMS

1. Incorporation of Contract Documents.

The above referenced recitals are true and correct and are incorporated into this Contract by this reference. This Contract includes and hereby incorporates in full by reference the following Contract Documents, including all exhibits, drawings, specifications and documents therein, and attachments and addenda thereto:
(a) Design-Build Contract
(b) Attachment 1 to this Contract – Scope of Services
(c) Attachment 1-1 to this Contract – Proposal
(d) Attachment 2 to this Contract - General Conditions
(e) Attachment 3 to this Contract – Special Conditions
(f) Attachment 4 to this Contract – Performance Bond
(g) Attachment 5 to this Contract – Payment Bond
(h) Attachment 6 to this Contract – Rate Schedule
(i) Attachment 7 to this Contract – Workers’ Compensation Certification
(j) Request for Proposal (“RFP”) and all addenda, attachments and appendices
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3 (k) Request for Qualifications (“RFQ”) and all addenda, attachments and appendices
(l) Design-Build Entity Statement of Qualifications in response to Request for Qualifications
(m) City approved Change Orders
(n) Completed and approved Construction Documents in accordance with the General Conditions

2. The DBE’s Basic Obligations; Compensation.

The DBE promises and agrees, at its own cost and expense, to furnish to the City all design and construction services, labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately complete the Project as described in the Contract Documents (hereinafter the “Scope of Work” of “Work”).

City shall pay to the DBE 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 Seven Million Sven Hundred and Thirty-Four Dollars ($7,734,000) which includes 10% contingency (“Contract Price”). Payment shall be made as set forth in the General Conditions. Unless otherwise stated in the Contract Documents, the Contract Price shall pay for all costs and expenses required to design and construct the Project.

3. Standard of Care.

The DBE’s performance shall be consistent with the standards set forth in the Contract and the General Conditions. The DBE warrants to City that all Design Work will be performed in accordance with the highest professional standards and degree of care applicable to those design professionals who specialize in designing and providing services for projects of the type, scope, quality and complexity of the Project utilizing the Design-Build contracting mode. The DBE warrants to City that all labor, materials, equipment and furnishings used in, or incorporated into, the Construction Work will be of good quality, new (unless otherwise required or permitted by the Contract Documents), and all work will be free of liens, claims and security interests of third parties; that the work will be of the highest quality and free from defects and that all work will conform with the requirements of the Contract Documents. The DBE shall supervise, inspect, and direct the Project competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Project in accordance with the Contract Documents. The DBE shall be solely responsible for the means, methods, techniques, sequences, and procedures of design and construction of the Project. DBE shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the DBE’s failure to comply with the standard of care provided for herein.

4. Period of Performance; Liquidated Damages.

Time is of the essence. The DBE guarantees that it shall perform and complete all Work required by the Contract Documents for completion by the Project Completion Date. The Project Completion Date shall be 240 calendar day from the commencement date stated in the Notice to Proceed with Construction.

The DBE agrees that it shall be liable to the City for liquidated damages in an amount of One Thousand Dollars ($1,000.00) per day for each and every calendar day beyond the Project Packet Pg. 23
4 Completion Date that completion of the Project has not been achieved at the Project Site. If not completed by the Project Completion Date, it is understood that the City will suffer damage, and that it is and will be difficult and/or impossible to ascertain and determine the actual damage which the City will sustain in the event of and by reason of the DBE’s failure to complete the work, and therefore the DBE shall pay to the City the stipulated sum as fixed and liquidated damages and not as a penalty. Any money due or to become due the DBE may be retained to cover liquidated damages.

5. Approval of Design; Commencement of Construction.
(a) The Scope of Work shall consist of two phases: the Construction Document Phase and the Construction Phase. The City shall issue a Notice to Proceed for each Phase. (b) The DBE shall commence the Construction Document Phase after receipt of City’s Notice to Proceed and complete the Construction Document Phase work within Thirty days of the Notice to Proceed date. The design shall consist of preparation of the Construction Documents as set forth in the General Conditions. The Bridging Documents may be utilized to assist in scoping the Project, but responsibility for the design shall rest solely with the DBE. (c) DBE shall submit the following to City for approval:
(i) Schematic Design;
(ii) 50% Construction Documents; and
(iii) 100% Construction Documents.
(d) The City’s review and approval of the design shall not relieve the DBE from its responsibilities under the Contract. Such review shall not be deemed an approval or waiver by the City of any deviation from, or of the DBE's failure to comply with, any provision or requirement of the Contract Documents, unless such deviation or failure has been identified as such in writing in the Document submitted by the DBE and approved by the City. The City Representative, or a City Engineer designated to review and approve Construction Documents, shall be authorized to approve the Construction Documents and any amendments or changes to the design.
(e) The Contract Schedule shall indicate the time for the City to review the proposed Construction Documents and shall provide a reasonable time for review of same, not less than Thirty days. DBE shall not be entitled to damages, liquidated or otherwise, for any delays during the Construction Document Phase.
(f) DBE shall not commence construction until the City approves the completed Construction Documents and issues a Notice to Proceed with Construction. DBE may request a Notice to Proceed with Construction prior to completion of the 100% Construction Documents, and City may issue same, provided that DBE shall not construct any portion of the Project until the design of such portion has been approved. The Project Completion Date shall run from the Notice to Proceed with Construction even if issued prior to completion of the 100% Construction Documents. DBE shall not commence construction unless the Contract Price has been determined.

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5 6. City’s Representative.

The City hereby designates Alex Qishta, Deputy PWD/City Engineer or his or her designee, as the person to act as its representative for the performance of this Contract (“City’s Representative”). The City’s Representative shall be authorized to act as liaison between City and the DBE in the administration of this Contract and all work on the Project. The City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract, including for the purpose of approving the design. City may designate new and/or different individuals to act as City’s Representative from time to time upon written notice to the DBE.

7. DBE’s Representative.

The DBE hereby designates Chase Tinsley, Director, Bids and Project Administration, or his or her designee, to act as its representative for the performance of this Contract (“DBE’s Representative”). DBE’s Representative shall have full authority to represent and act on behalf of the DBE for all purposes under this Contract. DBE’s Representative shall supervise and direct all work on the Project, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the work pursuant to this Contract.

8. DBE’s Contractor’s License and Registration.

The DBE shall have only appropriately licensed contractors performing work on the Project as required by the Business and Professions Code. The DBE (License No. CA#864417) shall act as the licensed contractor for the Project. DBE shall perform all services required under the Contract Documents in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform such services in the same discipline in the State of California, and the DBE shall be fully responsible to the City for any damages and/or delays to the Project as specified in the Contract. The licensed contractor shall be registered with the Department of Industrial Relations to perform public work (DIR Registration No. 1000003121.

9. DBE’s Design Professional.

The DBE shall name a specific person to act as the Design Professional as described in the General Conditions, subject to the approval of the City. The DBE hereby designates Brian Shen (License No.: CA#64080) to act as the Design Professional for the Project. DBE’s Design Professional shall perform all services required under the Contract Documents in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform such services in the same discipline in the State of California, and the DBE shall be fully responsible to the City for any damages and/or delays to the Project as specified in the indemnification provisions of the Contract. Any change in the Design Professional shall be subject to the City’s prior written approval, which approval shall not be unreasonably withheld. The new Design Professional shall be of at least equal competence as the prior Design Professional. In the event that City and DBE cannot agree as to the substitution of a new Design Professional, the City shall be entitled to terminate this Contract as described in the General Conditions.

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6 10. Authority of Signatories.

The persons executing this Contract on behalf of their respective Parties represent and warrant that they have the authority to do so under law and from their respective Parties. [SIGNATURES ON FOLLOWING PAGE]
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7 SIGNATURE PAGE FOR DESIGN BUILD AGREEMENT

BETWEEN THE CITY OF SAN BERNARDINO
AND RESOURCE ENVIRONMENTAL, Inc.

IN WITNESS WHEREOF, the Parties hereto have executed this Design-Build Contract as of the date first written above.

CITY OF SAN BERNARDINO
APPROVED BY:

Robert D. Field,
City Manager
ATTESTED BY:

GENOVEVA ROCHA, CMS,
City Clerk
APPROVED AS TO FORM:

Best Best & Krieger LLP
City Attorney
Resource Environmental, Inc.
[IF CORPORATION, TWO SIGNATURES,

PRESIDENT OR VICE PRESIDENT AND
SECRETARY OR TREASURER REQUIRED]
By:

Its:

Printed Name:
[DELETE THE FOLLOWING SIGNATURE
LINE IF NOT REQUIRED]
By:

Its:

Printed Name:
864417
____________________________________
Contractor’s License Number
1000003121
____________________________________
DIR Registration Number
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ATTACHMENT 1

SCOPE OF SERVICES

DESIGN-BUILD ENTITY RESPONSIBILITY
The selected Design-Build Entity shall function “at risk” for full and satisfactory completion of the Project in accordance with:

A. The approved design and construction documents.

B. The required agency approvals.

C. The Project Completion Date.

D. The agreed Lump Sum Price.

GENERAL DESCRIPTION OF DESIGN-BUILD SERVICES

1.1 The services sought by this RFP include all services necessary to design and construct the Project. This includes but is not limited to the following:

A. Architectural and engineering design services.

B. Permitting submittal and approvals from local, state and federal agencies.

C. Coordination of payment of all fees.

D. Project management.

E. Construction.

F. Utility coordination.

G. Commissioning of systems and equipment.

H. Coordination of all test and inspection services.

I. Community meetings (as may be required).

J. Coordination and scheduling work of Design-Build Team and others providing services to design and demolition the Project.

K. All on-site grading and storm water compliance.

L. Insurance and bonding.

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M. Provision of security badges for all Design-Build Team personnel requiring site access.

N. Coordination with City representatives.

1.2 The design and demolition must comply with the requirements of all applicable local, state and federal agencies.

The 43-acre Carousel Mall, one of the Inland Empire’s oldest and biggest shopping mall was opened on October 11, 1972, as Central City Mall, the shopping center with about 52 stores and three (3) major anchor stores, JC Penney, Montgomery Ward, and The Harris Company, which has been at its location since 1927. The mall was closed on August 22, 2017. The mall encompasses approximately 1.1 million square feet
The scope of work for this Project is a design/build contract to demolish Carousal Mall. The scope of work should include, but is not limited to, the following:
• Define scope of demolition to determine to what extent buildings, parking facilities and subsurface infrastructure need to be demolished. • Review all reciprocal easement agreements (REA) on the property. • The Engineer shall evaluate the demolition to ensure no conflict with other buildings (Harris Building, Enterprise…etc.)
• Review existing site evaluation report for contamination and provide updated site evaluation.
• Prepare and have it approved any other environmental document required for demolition.
• Prepare asbestos and lead base paint survey report to evaluate presence and extent of contaminations and to provide removal measures for demolition.
• Identify available off-site parking to make up for the parking lost either temporarily or permanently.
• Determine if Harris Building has a legal right to remain attached to the Carousel Mall’s Common Building components.
• Evaluate and include the demolition of the Carousel Mall from the Harris Department Store building including;
i) Structural stability
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ii) Capping off all utilities
iii) Closing the existing opening between the Mall and the Harris building
• Evaluate and include the demolition of the Carousel Mall from the Andresen/Enterprise building including;
i) Structural stability
ii) Capping off all utilities
• Submit complete cost estimate for the demolition.
• Present the City demolition plans and submit a construction schedule for that purpose.
• The Contractor will assume and provide 24/7/365 days security of the mail upon approval of the demolition proposal by the Mayor and Council of the City of San Bernardino
The City is looking for qualified consultants to have Carousel Mall Site demolished with exception to: Harris Building, Fairview Chevrolet, Enterprise Building, and the Mall Parking Structure.

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ATTACHMENT 1-1

PROPOSAL
Proposal attached as Attachment 2.

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ATTACHMENT 2

GENERAL CONDITIONS
ARTICLE 1 -DEFINITIONS AND TERMINOLOGY

1.1 Defined Terms.

A. Wherever 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 -- Act of God is an earthquake of magnitude 3.5 or higher on the Richter Scale or a tidal wave.

2. Additional Work – New or unforeseen work will be classified as “Additional Work” when City’s Representative determines that it is not covered by the Contract.

3. 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.

4. Application for Payment -- The form acceptable to City’s Representative which is to be used by the Design-Build Entity during the course of the Work in requesting progress or final payments and which is to be accompanied by such supporting documentation as is required by the Contract Documents.

5. Architect of Record or Engineer of Record (“A/E”) -- The individual, partnership, corporation, joint venture, or other legal entity named as the Design Professional in the Contract or any succeeding entity designated by City.

6. Bridging Documents -- Includes, but is not limited to, the portions of the Contract Documents which constitute an outline of design requirements, Work, Project Program, Performance Specifications and schematic drawings.

7. Certificate for Payment -- The form signed by City’s Representative attesting to the Design-Build Entity’s right to receive payment for certain completed portions of the Work on the Project in accordance with Article 12.

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 Project Completion Date, 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 Design-Build Entity for an adjustment in the Contract Price and/or Project Completion Date as the result of a Design-Build Entity-claimed change to the Work.

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10. Claim -- A demand or assertion by City or Design-Build Entity seeking an adjustment of the Contract Price or Project Completion Date, or both, or other relief with respect to the terms of the Contract. A demand for money or services by a third party is not a Claim.

11. Construction Documents -- The plans and Technical Specifications prepared by the Design-Build Entity for the Project and approved by City. The Construction Documents shall set forth in detail all items necessary to complete the construction (other than such details customarily provided by others during construction) of the Project in accordance with the Contract Documents. Following commencement of the Construction Phase, Construction Documents become part of the Contract Documents upon their completion and approval by City. All amendments and modifications to the Construction Documents must be approved by City in writing.

12. Construction Documents Phase – The first phase of the Work and will commence with the issuance of the Notice to Proceed.

13. Construction Phase -- The second phase of the Work and will commence upon final approval of the Construction Documents by City and a Notice to Proceed with Construction.

14. Construction Work -- That portion of the Work on the Project consisting of the provision of labor, materials, furnishings, equipment and services in connection with the construction of the Project as set forth in the Contract Documents.

15. Contract -- The entire integrated written agreement between City and Design-Build Entity concerning the Work. “Contract” may be used interchangeably with “Agreement” in the Contract Documents. The Contract supersedes prior negotiations, representations, or agreements, whether written or oral, and includes all Contract Documents.

16. Contract Documents -- The documents listed in Section 1 of the Contract. Some documents provided by City, including but not limited to reports and drawings of subsurface and physical conditions are not Contract Documents.

17. Contract Times -- The number of days or the dates stated in the Contract Documents and Project Schedule to achieve defined Milestones, if any, and to complete the Work so that it is ready for final payment.

18. Critical Supply Shortage -- An unusual shortage in materials that is (a) supported by documented proof that Design-Build Entity 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 Design-Build Entity 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.

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19. Day -- A calendar day of 24 hours measured from midnight to the next midnight.

20. 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.

21. Demobilization – The complete dismantling and removal by the Design-Build Entity of all of the Design-Build Entity’s temporary facilities, equipment, and personnel at the Site.

22. Design-Build Entity -- The individual or entity with which City has contracted for performance of the Work.

23. Design-Build Entity Representative -- The person or firm identified as the primary contact person and representative of the Design-Build Entity as designated in the Contract and who shall not be changed without prior written consent of City.

24. Design Materials -- Any and all documents, shop drawings, electronic information, including computer programs and computer generated materials, data, plans, drawings, sketches, illustrations, specifications, descriptions, models and other information developed, prepared, furnished, delivered or required to be delivered by, or for, the Design-Build Entity: (1) to City under the Contract Documents or; (2) developed or prepared by or for the Design-Build Entity specifically to discharge its duties under the Contract Documents.

25. Design Professional -- The individuals or entities who will provide the Design-Build Entity with the required architectural, engineering, and other professional services required for the coordinated design of the Project and the administration of construction.

26. Design Work -- The portion of the Work on the Project consisting of the Design services and design deliverables required to be provided in connection with the Design of the Project as set forth in the Contract Documents.

27. Drawings -- The graphic and pictorial portions of the Contract Documents showing the design, location, and dimensions of the Work to be done on the Project, generally including plans, elevations, sections, details, schedules, and diagrams prepared as part of the Design Materials. The Drawings are listed in the List of Drawings.

28. 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.

29. Equipment Manufacturer -- Any Separate Contractor that fabricates and/or supplies any of City’s provided equipment which is installed in the Project by the Design-Build Entity.

30. 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 Packet Pg. 34
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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 Agency in its capacity as a municipal authority.

31. Governmental Approvals -- Those governmental actions required to be obtained by City and necessary for the completion of the Project.

32. Hazardous Materials – Any substance: the presence of which requires investigation or remediation under any federal, state or local law, statute, regulation, ordinance, order, action, policy, or common law; which is or becomes defined as a "hazardous waste," "hazardous substance," pollutant, or contaminant under any federal, state or local law, statute, regulation, rule or ordinance, or amendments thereto, including, without limitations, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERCLA"), as amended, or the Resource, Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq. ("RCRA"); which is petroleum, including crude oil or any fraction thereof not otherwise designated as a “hazardous substance” under CERCLA including, without limitation, gasoline, diesel fuel, or other petroleum hydrocarbons; which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by any regulatory agency or instrumentality or the United States; the presence of which on the Site causes or threatens to cause a nuisance upon the Site or to the adjacent properties or poses or threatens to pose a hazard to the health or safety of persons on or about the Site; the presence of which on adjacent properties could constitute a trespass by the Design-Build Entity or the City; or as defined in the California Health and Safety Code. For the purposes of this Contract, “Hazardous Materials” shall also include, but are not limited to, “Underground Storage Tanks.” "Underground Storage Tank" shall have the definition assigned to that term by Section 9001 of RCRA, 42 U.S.C.

Section 6991, and also shall include: any tank of one thousand one hundred (1,100) gallons or less capacity used for storing motor fuel; any tank used for storing heating oil for consumption on the premises where stored; any septic tank; and any pipes connected to the above items.

33. Holidays -- Holidays occur on:

New Year’s Day - January 1
Martin Luther King Jr. Day – Third Monday of January
President’s Day – Third Monday of February
Memorial Day - Last Monday in May
Juneteenth Day, June 19
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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
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.

34. Liens – Charges, security interests, or encumbrances upon Project funds, or personal property, including without limitation Stop Payment Notices.

35. Milestones – A principal event specified in the Contract Documents associated with a required completion date or time prior to Completion of all the Work. Failure to achieve Milestones may result in Liquidated Damages as described in the Contract Documents.

36. Notice of Award – The written notice by City to the Design-Build Entity stating that upon timely compliance by the Design-Build Entity with the conditions precedent listed therein, City will sign and deliver the Contract.

37. Notice of Completion – The form which may be executed by City and recorded by the county where the Project is located constituting final acceptance of the Project.

38. Notice to Proceed -- A written notice given by City to the Design-Build Entity fixing the date on which the Design-Build Entity may proceed with the Work and when Contract Time will commence to run.

39. Partial Utilization – Use by City of a substantially completed part of the Work prior to Completion of all the Work.

40. Performance 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 included within the Bridging Documents.

41. Project -- The total design and construction of which the Work performed under the Contract Documents may be the whole, or a part, and which may include separate design or construction work performed by City or by Separate Contractors for the Project.

42. Project Completion Date -- The date by which the Design-Build Entity agrees that all Work described in the Contract Documents shall be completed. The Project Completion Date is set forth in the Contract.

43. Project Schedule -- The graphical representation of a practical plan to complete the Work on the Project within the Project Completion Date and other Contract Times. The detailed requirements for the Project Schedule are stated in Article 6.

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44. Proposal -- The proposal submitted by the Design-Build Entity in response to the Request for Proposal for this Project.

45. Request for Proposal (“RFP”) -- The request for proposal issued by City for the Project and includes all documents, exhibits, attachments, and addenda thereto.

46. Samples -- Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged.

47. Separate Contractor -- A person, or firm, under separate contract with City performing other work at the Project site which may affect the Work.

48. Shop Drawings -- All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Design-Build Entity and submitted by Design-Build Entity to illustrate some portion of the Work.

49. Site -- Lands or areas indicated in the Contract Documents as being furnished by City upon which the Work is to be performed, including rights-of-way and easements for access thereto, and such other lands furnished by City which are designated for the use of Design-Build Entity.

50. Stop Payment Notice -- A written notice as defined in Civil Code section 8044.

51. Subcontractor – An individual or entity that has a contract with the Design-Build Entity or with a Subcontractor of the Design-Build Entity to perform a portion of the Work on the Project. Unless otherwise specifically provided, the term Subcontractor includes Subcontractors of all tiers.

52. Submittal - Written or graphic information and physical samples prepared and supplied by the Design-Build Entity demonstrating various portions of the Work.

53. Supplier -- A manufacturer, fabricator, supplier, distributor, material man, or vendor having a direct contract with Design-Build Entity or with any Subcontractor to furnish materials or equipment used in the performance of the Work or to be incorporated in the Work.

54. Technical Specifications – All documents developed by the Design-Build Entity and which are ready for final construction.

55. Tier -- The contractual level of a Subcontractor or supplier or consultant with respect to the Design-Build Entity. For example, a first tier Subcontractor is under subcontract with the Design-Build Entity, a second tier Subcontractor is under subcontract with a first tier Subcontractor, and so forth.

56. Warranty A written guarantee provided to City by the Design-Build Entity that the Work 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.

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57. Work -- The entire design and 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 design and construction, and furnishing, installing, and incorporating all materials and equipment into such design and 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 Project 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 DesignBuild Entity is implied.

B. Unless stated otherwise in the Contract Documents, words or phrases that have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning ARTICLE 2 -PRELIMINARY MATTERS

2.1 Delivery of Contract Documents.

A. Within fifteen (15) Days after receipt of the Notice of Award and before City will execute the Contract, the Design-Build Entity shall furnish and file with City a signed Contract in duplicate and the necessary Performance Bond, Payment Bond, Certificates of Insurance and Endorsements, Escrow Agreement (if used) and Tax Identification Number, as well as any other documents specified in the Contract Documents.

Notwithstanding the foregoing, if the Contract Price has yet to be established at Notice of Award, then the Performance Bond and Payment Bond may be provided after establishing the Contract Price and prior to the Construction Phase.

2.2 Bonds.

A. Design-Build Entity 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 Packet Pg. 38
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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 City conditioned upon the faithful performance by the Design-Build Entity 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.

2.3 Evidence of Insurance.

A. Design-Build Entity shall obtain, at its sole cost and expense, all insurance required by Article 5. Certificates of such insurance and copies of the insurance policies and endorsements shall be delivered to City within fifteen (15) Days after receipt of the Notice of Award and before execution of the agreement for construction by City.

2.4 Execution of Contract.

A. Upon receipt of the required Contract Documents, City will execute the Contract, establishing the Effective Date of the Contract.

2.5 Commencement of Contract Times; Notice to Proceed with Construction.

A. The City will not issue a Notice to Proceed until after the Effective Date of the Contract.

Construction Work shall commence within fifteen (15) Days of the date stated in City’s Notice to Proceed with Construction. No Construction Work shall be done at the Site prior to the date on which the Contract Time commence to run. Nothing herein shall affect the Project Completion Date.

2.6 Copies of Documents.

A. City will furnish to Design-Build Entity one (1) copy of the Bridging Documents.

Additional copies will be furnished upon request at the cost of reproduction.

2.7 Preconstruction Conference; Designation of Authorized Representatives.

A. Before any Work at the Project site is started, a conference attended by City, DesignBuild Entity, City’s Representative, 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 Shop Drawings and other submittals, processing Applications for Payment, and maintaining required records.

2.8 Initial Acceptance of Schedules.

A. At least ten (10) Days before submission of the first Application for Payment, a conference attended by Design-Build Entity, City’s Representative, and others as appropriate will be held to review for acceptability to City’s Representative the schedules submitted, as required by the Contract Documents. Design-Build Entity shall have an additional ten (10) Days to make corrections and adjustments and to complete and resubmit the schedules. No progress payment shall be made to DesignBuild Entity until acceptable schedules are submitted to City’s Representative.

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for accuracy, for sequencing, scheduling, or progress of the Work, or compliance with the Contract Documents. Acceptance will not interfere with or relieve Design-Build Entity from Design-Build Entity’s full responsibility therefor.

ARTICLE 3 -CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE

3.1 Intent.

A. The Contract Documents are complementary; what is required by one is as 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 designed and 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 City.

Clarifications and interpretations of the Contract Documents shall be issued by City’s Representative as provided in these General Conditions.

B. 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.

C. Organization of the Contract Documents into divisions, sections, and articles, and arrangement of drawings shall not control the Design-Build Entity in dividing Work among Subcontractors or in establishing the extent of Work to be performed by any trade.

3.2 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 proposals (or on the Effective Date of the Contract if there were no proposals), 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 City, Design-Build Entity, or City’s Representative, 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 City or City’s Representative, 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.

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3.3 Order of Precedence.

A. The intent of the Contract Documents is to include all necessary criteria to establish the scope and quality for completion of the Work on the Project by the Design-Build Entity. The Contract Documents are complementary and what is required by one shall be as binding as if required by all. Performance by the Design-Build Entity shall be required to the extent consistent with, and reasonably inferable from, the Contract Documents.

B. Except as may be otherwise specifically stated in the Contract Documents, the provisions of the Contract Documents shall take precedence in resolving any conflict, error, ambiguity, or discrepancy between the provisions of the Contract Documents and the provisions of any standard, specification, manual, or code, or the instruction of any Supplier (whether or not specifically incorporated by reference in the Contract Documents); or the provisions of any Applicable Laws (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Applicable Law).

C. In resolving conflicts among any of the Contract Documents, the order of precedence shall be as follows:

1. Permits from other agencies as may be required by law;

2. Change Orders or Pending Change Orders, most recent first;

3. Design-Build Contract;

4. Special Conditions;

5. General Conditions;

6. RFP and all addenda, attachments and appendices;

7. Design-Build Entity Proposal in response to RFP;

8. Construction Documents prepared by Design-Build Entity; and

9. Drawings prepared by Design-Build Entity;

10. Request for Qualifications and all addenda, attachments and appendices; and

11. Design-Build Entity Statement of Qualifications in response to Request for Qualifications.

D. With reference to the Drawings the order of precedence shall be as follows:

1. Figures govern over scaled dimensions;

2. Detail drawings govern over general drawings;

3. Change Order drawings govern over Drawings;

4. Drawings govern over standard drawings.

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E. Notwithstanding the orders of precedence established above, in the event of conflicts, the higher standard, higher quality and most expensive shall always apply.

3.4 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 a Change Order.

3.5 Interpretation and Use of Contract Documents.

A. City and the Design-Build Entity acknowledge that the Contract Documents may differ in some respect(s) from the other documents included in the RFP upon which the Design-Build Entity based its Proposal. Prior to the commencement of construction on the Project, the parties shall confirm, in writing, the final form of the Contract Documents that are to be utilized. Specifically, once approved by City, the Construction Documents become a part of the Contract Documents and define the entire scope of work, so long as such documents incorporate all minimum requirements of the Bridging Documents. The Design-Build Entity shall certify that the Construction Documents are in full compliance with the Contract Documents, except as noted.

B. Organization of the Performance Specifications into various subdivisions and the arrangement of the Drawings shall not control the Design-Build Entity in dividing portions of the Work necessary for the Project among Subcontractors or in establishing the extent of Work to be performed by any trade.

C. Unless otherwise stated in the Contract Documents, technical words and abbreviations contained in the Contract Documents are used in accordance with commonly understood design professional and construction industry meanings; nontechnical words and abbreviations are used in accordance with their commonly understood meanings.

D. The Contract Documents may omit modifying words such as “all” and “any,” and articles such as “the” and “an,” but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. The use of the word “including,” when following any general statement, shall not be construed to limit such statement to specific items or matters set forth immediately following such word or to similar items or matters, whether or not non limiting language (such as “without limitation,” “but not limited to,” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement.

E. Whenever the context so requires, the use of the singular number shall be deemed to include the plural and vice versa. Each gender shall be deemed to include any other gender, and each shall include a corporation, partnership, trust, or other legal entity, whenever the context so requires. The captions and headings of the various subdivisions of the Contract Documents are intended only for reference and convenience and in no way define, limit, or prescribe the scope or intent of the Contract Documents or any subdivision thereof.

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F. Each and every provision of law required by law to be inserted in the Contract Documents shall be deemed to be inserted herein, and the Contract Documents shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon application of either party the Contract shall be amended in writing to make such insertion or correction.

G. Before commencing any Work on the Project, the Design-Build Entity shall check and review the Contract Documents, including the Construction Documents, for conformance and compliance with all laws, ordinances, codes, rules and regulations of all governmental authorities and public utilities affecting the construction and operation of the physical plant of the Project, all quasi-governmental and other regulations affecting the construction and operation of the physical plant of the Project, and other special requirements, if any, designated in the Contract. In the event the Design-Build Entity observes any violation of any law, ordinance, code, rule or regulation, or inconsistency with any such restrictions or special requirements of the Contract, the Design-Build Entity shall immediately notify City’s Representative in writing of the same and shall cause to be corrected any such violation or inconsistency in the manner provided hereunder. The Design-Build Entity shall be solely liable for any such violation, inconsistency or special requirement, if Design-Build Entity fails to conduct such review or notification to City.

H. Before commencing any Work on the Project, the Design-Build Entity shall carefully examine all Performance Specifications, the Contract, the Contract Documents and other information given to the Design-Build Entity as to Project requirements. The Design-Build Entity shall immediately notify City’s Representative of any perceived or alleged error, inconsistency, ambiguity, or lack of detail or explanation in such documents in writing. Neither the Design-Build Entity nor any Subcontractor shall take advantage of any apparent error or omission which may be found in the Performance Specifications, the Contract, the Contract Documents or other information given to Design-Build Entity. If the Design-Build Entity or its Subcontractors, material or equipment suppliers, or any of their officers, agents, and employees performs, permits, or causes the performance of any Work under the Contract, which it knows or should have known to be in error, inconsistent, or ambiguous, or not sufficiently detailed or explained, the Design-Build Entity shall bear any and all costs arising therefrom including, without limitation, the cost of correction thereof without increase or adjustment to the Contract Price or the Project Completion Date. In no case shall any Subcontractor proceed with Work if uncertain without the Design-Build Entity’s written direction and/or approval.

3.6 Reuse of Documents.

A. Design-Build Entity and any Subcontractor shall not: have or acquire any title to or Ownership rights in any of the Construction Documents or other documents (or copies of any thereof) prepared by or bearing the seal of the A/E or its consultants, including electronic media editions; or reuse of any such Construction Documents, other documents, or copies thereof on extensions of the Project or any other project without written consent of City and A/E and specific written verification or adaptation by the A/E. The prohibitions of this Article will survive final payment, or termination of the Packet Pg. 43
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Contract. Nothing herein shall preclude Design-Build Entity from retaining copies of the Contract Documents for record purposes.

3.7 Electronic Data.

A. The data furnished by City or City’s Representative to Design-Build Entity, or by Design-Build Entity to City or City’s Representative, that may be relied upon are limited to the printed copies (also known as hard copies). Files in electronic media format of text, data, graphics, or other types are furnished only for the convenience of the receiving party. Any conclusion or information obtained or derived from such electronic files will be at the user’s sole risk. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern.

B. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data’s creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within sixty (60) Days, after which the receiving party shall be deemed to have accepted the data thus transferred. Any errors detected within the 60-Day acceptance period will be corrected by the transferring party.

C. When transferring documents in electronic media format, the transferring party makes no representations as to long term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by the data’s creator.

3.8 Ownership and Use of Construction Documents.

A. The Construction Documents, and all copies thereof, furnished to, or provided by, the Design-Build Entity are the property of City. City and the Design-Build Entity explicitly agree that all materials and documents developed in the performance of this Contract are the property of City pursuant to the requirements of City. City shall have unlimited rights, for the benefit of City, in all drawings, designs, technical specifications, notes and any other documentation and other Work developed in the performance of this Contract for the Project, including the right to re-use details of the Design on any other City Work at no additional cost to City. The Design-Build Entity agrees to, and hereby does, grant to City a royalty free license to all such data that the Design-Build Entity may cover by copyright and to all designs as to which the Design-Build Entity may assert any right or establish any claim to under the patent or copyright laws. The Design-Build Entity, for a period up to five (5) years from the date of Completion of the Project, agrees to furnish and to provide access to the originals or copies of all such materials immediately upon the written request of City. Any use or reuse by City of the Construction Documents on any project other than this Project without employing the services of the Design-Build Entity shall be at City’s own risk with respect to third parties. If City uses or re-uses the Construction Documents on any project other than this Project, it shall remove the A/E’s seal from the Construction Documents and hold harmless Design-Build Entity, A/E, and their officers, directors, agents and employees from claims arising out of the use or re-use of the Construction Documents on such other project. Design-Build Entity shall not be responsible or liable for any revisions to the Construction Documents made by any party other than the Design-Build Entity, Packet Pg. 44
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a party for which the Design-Build Entity is legally responsible or liable, or anyone approved by the Design-Build Entity.

3.9 Administration of the Contract by City’s Representative.

A. During the term of this Design-Build Contract, City’s Representative shall have the right to review the Design-Build Entity’s Work at such intervals as deemed appropriate by City’s Representative. However, no actions taken during such review or site visit by City’s Representative shall relieve the Design-Build Entity of any of its obligations of single point responsibility for the design and construction of this Project nor form the basis for a Claim if such actions extend beyond the Project Completion Date.

B. City’s Representative will not have control over, will not be in charge of, and will not be responsible for design or construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the Work on the Project, since these are solely the Design-Build Entity’s responsibility.

C. Except as otherwise provided in the Contract Documents or when direct communications have been specifically authorized, City and the Design-Build Entity shall communicate through City’s Representative. Communications by the DesignBuild Entity with City’s consultants and City’s Representative’s consultants shall be through City’s Representative. Communications by City and City’s Representative with Subcontractors will be through the Design-Build Entity. Communications by the Design-Build Entity and Subcontractors with Separate Contractors shall be through City’s Representative. The Design-Build Entity shall not rely on oral or other nonwritten communications.

D. Based on City’s Representative’s Project site visits, review of the Work, and evaluations of the Design-Build Entity’s Applications for Payment, City’s Representative will recommend amounts, if any, due the Design-Build Entity and will issue Certificates for Payment in such amounts.

E. City’s Representative will have the authority to reject Work on the Project, or any portion thereof, which does not conform to the Contract Documents. City’s Representative will have the authority to stop Work on the Project, or any portion thereof. Whenever City’s Representative considers it necessary, or advisable, for implementation of the intent of the Contract Documents, City’s Representative will have the authority to require additional inspection or testing of the Work on the Project in accordance with the Contract Documents, whether or not such Work is fabricated, installed, or completed. However, no authority of City’s Representative conferred by the Contract Documents nor any decision made in good faith either to exercise, or to not exercise such authority, will give rise to a duty or responsibility of City or City’s Representative to the Design-Build Entity, or any person or entity claiming under, or through, the Design-Build Entity.

F. City’s Representative will have the authority to conduct inspections in connection with beneficial occupancy and to determine the dates of Completion; will receive for review and approval any records, written warranties, and related documents required by the Contract Documents and assembled by the Design-Build Entity; and will issue a final Packet Pg. 45
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Certificate for Payment upon the Design-Build Entity’s compliance with the requirements of the Contract Documents.

G. City’s Representative will be, in the first instance, the interpreter of the requirements of the Contract Documents and the judge of performance thereunder by the DesignBuild Entity. Should the Design-Build Entity discover any conflicts, omissions, or errors in the Construction Documents or the Contract Documents; have any questions about the interpretation or clarification of the Contract Documents; question whether Work is within the scope of the Contract Documents; then, before proceeding with the Work affected, the Design-Build Entity shall notify City’s Representative in writing and request interpretation, or clarification. City’s Representative’s response to questions and requests for interpretations, clarifications, instructions, or decisions will be made with reasonable promptness. Should the Design-Build Entity proceed with the Work affected before receipt of a response from City’s Representative, any portion of the Work on the Project which is not done in accordance with City’s Representative’s interpretations, clarifications, instructions, or decisions shall be removed or replaced and the Design-Build Entity shall be responsible for all resultant losses.

H. City may at any time and from time to time, without prior notice to or approval of the Design-Build Entity, replace City’s Representative with a new City Representative.

Upon receipt of notice from City informing the Design-Build Entity of such replacement and identifying the new City’s Representative, the Design-Build Entity shall recognize such person or firm as City’s Representative for all purposes under the Contract Documents.

ARTICLE 4 -AVAILABILITY AND OWNERSHIP OF LANDS AND MATERIALS; HAZARDOUS ENVIRONMENTAL CONDITIONS; REFERENCE POINTS

4.1 Availability of Lands.

A. City shall furnish the Project site. City shall notify Design-Build Entity of any encumbrances or restrictions not of general application but specifically related to use of the Project site with which Design-Build Entity must comply in performing the Work.

City will obtain in a timely manner and pay for easements for permanent structures or permanent changes in existing facilities. Design-Build Entity shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment at no additional cost to City.

4.2 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 Design-Build Entity 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 City. Neither Design-Build Entity 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. Design-Build Entity will, as determined by City’s Representative, be permitted to use in the Work without charge, any such materials which meet the requirements of the Contract Documents, provided City shall have the right to use or consume these materials without payment to a third party.

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4.3 Hazardous Material at Site.

A. The Design-Build Entity shall have no responsibility for detection, abatement, remediation, removal or disposal of any Hazardous Material, except Hazardous Materials introduced onto the Project Site by the Design-Build Entity, its employees, subcontractors, agents, or other parties acting on behalf of the Design-Build Entity. In the event that the Design-Build Entity becomes aware of the presence of, or exposure of persons to, any Hazardous Material at the Project Site, the Design-Build Entity shall inform City by notice immediately. Notwithstanding anything to the contrary herein, the Design-Build Entity shall not be responsible for, and the City shall bear full responsibility and remediation costs relating to any Hazardous Materials uncovered, removed or disturbed by the Design-Build Entity on the Project Site resulting from the Design-Build Entity’s performance of the work hereunder, except Hazardous Materials introduced onto the Project Site by the Design-Build Entity, its employees, subcontractors, agents, or other parties acting on behalf of the Design-Build Entity.

The City shall not be responsible for, and the Design-Build Entity shall bear full responsibility and remediation costs relating to any Hazardous Materials introduced onto the Project Site by the Design-Build Entity, its employees, subcontractors, agents, or other parties acting on behalf of the Design-Build Entity.

B. The Design-Build Entity hereby specifically agrees to indemnify, defend and hold the City, its present and future directors, officers, employees, agents, representatives, successors and assigns harmless from and against any and all losses, liabilities, claims, demands, damages, causes of action, fines, penalties, costs and expenses (including, but not limited to, all reasonable consulting, engineering, attorneys’ or other professional fees), that they may incur or suffer by reason of: (a) the existence, uncovering or unveiling, or any release by the City or Design-Build Entity of, a Hazardous Material introduced onto the Project Site by the Design-Build Entity, its employees, subcontractors, agents, or other parties acting on behalf of the DesignBuild Entity; (b) any enforcement or compliance proceeding commenced by or in the name of any governmental authority because of the presence on the Project Site of Hazardous Materials introduced onto the Project Site by the Design-Build Entity, its employees, subcontractors, agents, or other parties acting on behalf of the DesignBuild Entity; and (c) any action reasonably necessary to abate, remediate or prevent a violation or threatened violation of any Hazardous Material laws by the Design-Build Entity.

4.4 Protection and Restoration of Existing Improvements and Reference Points.

A. Design-Build Entity shall be responsible for laying out the Work, shall protect and preserve the established reference points and property monuments, and shall make no changes or relocations without the prior written approval of City. Design-Build Entity shall report to City’s Representative whenever any reference point or property monument is lost or destroyed or requires relocation because of necessary changes in grades or locations, and shall be responsible for the accurate replacement or relocation of such reference points or property monuments by professionally qualified personnel.

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ARTICLE 5 -BONDS AND INSURANCE

5.1 Time for Compliance. Design-Build Entity shall not commence Work under this Contract until it has provided evidence to City that it has secured all insurance required under this Article. Design-Build Entity shall require and verify that all subconsultants and subcontractors maintain insurance meeting all the requirements stated herein. DesignBuild Entity shall not allow any subconsultant or subcontractor to commence work on any subcontract until it has provided evidence to City that the subconsultant or subcontractor has secured all insurance required under this Article.

5.2 Minimum Requirements. Design-Build Entity shall, at its expense, procure and maintain for the duration of the Contract insurance against claims for injuries to persons or damages to property which may arise out of or result from the performance of the Work and DesignBuild Entity’s other obligations under the Contract Documents whether by Design-Build Entity, its agents, representatives, employees or subcontractors. Design-Build Entity shall also require all of its subconsultants and subcontractors to procure and maintain the same insurance for the duration of the Contract and verify the subconsultants’ and subcontractors’ compliance. Design-Build Entity’s and subconsultants’ and subcontractors’ insurance shall meet at least the minimum levels of coverage set forth in this Article:

A. Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability:

Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto) or if Design-Build Entity has no owned autos, non-owned, leased or hired autos Code 8 (hired) and Code 9 (non-owned); (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance; (4) Installation Floater/Builder’s Risk: “All Risk All Perils” form; (5) Professional Liability/Errors and Omissions; (6) Privacy/Network Security (Cyber); The policies shall not contain any exclusion contrary to the Contract, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability or (2) cross liability for claims or suits by one insured against another.

B. Minimum Limits of Insurance. The Design-Build Entity shall maintain limits no less than:

1. For Commercial General Liability, Design-Build Entity shall have limits of at least the amount that corresponds to the Contract Price in the following table:

Contract Price Amount of Liability Insurance
(per occurrence)
$ 0 - $ 2 million $ 2 million
$ 2 million - $ 5 million $ 3 million
$ 5 million - $ 10 million $ 5 million
$10 million - $ 20 million $10 million
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If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 25 03, either the general aggregate limit shall apply separately to the Project or the general aggregate limit shall be twice the required occurrence limit. Should any of the Work involve aircraft (fixed wing or helicopter) owned or operated by Design-Build Entity, liability insurance with limits of not less than $5,000,000 per occurrence for bodily injury and property damage is required. Should any of the Work involve watercraft owned or operated by Design-Build Entity, liability insurance with limits of not less than $5,000,000 per occurrence for bodily injury and property damage is required.

2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.

3. Workers’ Compensation and Employer’s Liability:
a. Workers’ Compensation: statutory limits.
b. Employer’s Liability limits of $1,000,000 per accident for bodily injury or disease.
c. Should any of the Work be upon or contiguous to navigable bodies of water, Design-Build Entity shall carry insurance covering its employees for benefits available under the Federal Longshoremen's and Harbor Worker's Act to the extent required by law;

4. Excess/Umbrella Liability Policy may be provided to insure the total limits required for Commercial General Liability and Automobile Liability and must apply to all primary coverage afforded, including but not limited to general liability, owned and non-owned automobiles, leased and hired cars.

5. Professional Liability/Errors and Omissions: $1,000,000 per claim.

6. Cyber Liability: $1,000,000 per occurrence and aggregate.

C. Notices; Cancellation or Reduction of Coverage. At least fifteen (15) Days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with City. If such coverage is cancelled or materially reduced, Design-Build Entity shall, within ten (10) Days after receipt of written notice of such cancellation or reduction of coverage, file with City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Contract does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Design-Build Entity or City may withhold amounts sufficient to pay premium from Design-Build Entity payments. In the alternative, City may suspend or terminate this Contract.

5.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Design-Build Entity shall provide endorsements on forms approved by City to add the following provisions to the insurance policies:

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A. General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37 (including completed operations), or endorsements providing the exact same coverage, City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions shall be covered as additional insureds with respect to the Work or ongoing and completed operations performed by or on behalf of the DesignBuild Entity, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions, or if excess, shall stand in an unbroken chain of coverage excess of the Design-Build Entity’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of City, before City’s own primary insurance or self-insurance shall be called upon to protect it as a named insured. Any insurance or self-insurance maintained by City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions shall be excess of the Design-Build Entity’s insurance and shall not be called upon to contribute with it in any way.

B. Automobile Liability. The automobile liability policy shall include or be endorsed (amended) to state that: (1) City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the DesignBuild Entity or for which the Design-Build Entity is responsible; and (2) the insurance coverage shall be primary insurance as respects City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions, or if excess, shall stand in an unbroken chain of coverage excess of the Design-Build Entity’s scheduled underlying coverage. Any insurance or self-insurance maintained by City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions shall be excess of the Design-Build Entity’s insurance and shall not be called upon to contribute with it in any way.

C. Workers’ Compensation and Employer’s Liability Coverage. The insurer shall agree, using WC 00 03 13 or the exact equivalent, to waive all rights of subrogation against City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions for losses paid under the terms of the insurance policy.

D. Professional Liability/Errors and Omissions. Professional Liability Insurance insuring the A/E, its officers, directors, stockholders, employees, agents, or partner, and all other persons for whose acts the A/E may be liable, against any and all liabilities arising out of or in connection with the negligent acts, errors or omissions of any of the foregoing in connection with the carrying out of their professional responsibilities described in this Contract. Professional Liability Insurance shall remain in full force and effect, and shall be so certified to City by the insurer, for a period of five (5) years after the completion of all of the Design-Build Entity’s services hereunder and City’s acceptance of the Project. All subconsultants shall have professional liability insurance Packet Pg. 50
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with the same limits (additional requirements for Professional Liability/Errors and Omissions Insurance written on a “claims made” basis are set forth below).

E. Privacy/Network Security (Cyber Liability). At all times during the performance of work under this Agreement, the Designer shall maintain privacy/network security insurance, in a form and with insurance companies acceptable to the City, for: (1) privacy breaches, (2) system breaches, (3) denial or loss of service, and (4) the introduction, implantation or spread of malicious software code.

F. All Coverages. Each insurance policy required by this Agreement shall be endorsed to include the following provisions:

1. coverage shall not be suspended, voided, reduced or canceled except after thirty (30) Days (10 Days for nonpayment of premium) prior written notice by mail has been given to City and all additional insureds.

2. any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and any other additional insureds.

3. standard separation of insureds provisions.

4. no special limitations on the scope of protection afforded to City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions.

5. waiver of any right of subrogation of the insurer against City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, or shall specifically allow the Design-Build Entity or others providing insurance in compliance with these specifications to waive their right of recovery prior to a loss. By signing this agreement, the Design-Build Entity hereby waives its own right of recovery against City or any other additional insureds, and shall require similar written express waivers and insurance clauses from each of its subconsultants and subcontractors.

5.4 Builder’s Risk [“All Risk”]
A. It is the Design-Build Entity’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 Design-Build Entity shall provide a certificate evidencing this coverage before commencing performance of the Work.

B. The named insureds shall be Design-Build Entity, all Subcontractors of any tier (excluding those solely responsible for design work), suppliers, and City, its elected officials, officers, employees, agents and authorized volunteers, as their interests may appear. Design-Build Entity shall not be required to maintain property insurance for any portion of the Work following acceptance by City.

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C. Policy shall be provided for replacement value on an “all risk” basis. There shall be no coinsurance penalty provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, nonconforming work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) transit coverage, including ocean marine coverage (unless insured by the supplier), with sub-limits sufficient to insure the full replacement value of any key equipment item; and (5) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site.

Such insurance shall be on a form acceptable to City to ensure adequacy and sublimit.

D. In addition, the policy shall meet the following requirements:

1. Insurance policies shall be so conditioned as to cover the performance of any extra work performed under the Contract.

2. Coverage shall include all materials stored on site and in transit.

3. Coverage shall include Design-Build Entity’s tools and equipment.

4. Insurance shall include boiler, machinery and material hoist coverage.

5. City shall be named loss payee.

5.5 Pollution Liability Insurance. Pollution Liability Insurance is required should any of the Project involve pollutants. Liability coverage shall include coverage for the environmental risk associated with the project and expenses related to such, including bodily injury, property damage, on and off site clean-up, transporting, carrying, or storing pollutants, coverage for non-owned disposal site in an amount not less than that set forth in the Special Conditions. Pollutants include, but are not limited to, asbestos, mold, microbial matter, solid, liquid, gaseous or thermal irritants or contaminants, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste. Waste includes materials to be recycled, reconditioned, or reclaimed.

5.6 Receipt and Application of Insurance Proceeds. Any insured loss under the policies of insurance required herein will be adjusted with City and made payable to City as fiduciary for the loss payees, as their interests may appear, subject to the requirements of any applicable mortgage clause and of the provisions herein. City shall deposit in a separate account any money so received and shall distribute it in accordance with such agreement as the parties in interest may reach. If no other special agreement is reached, the damaged Work shall be repaired or replaced, the moneys so received applied on account thereof, and the Project and the cost thereof covered by an appropriate Change Order.

City as fiduciary shall have power to adjust and settle any loss with the insurers unless one of the parties in interest shall object in writing to City’s exercise of this power within fifteen (15) Days after the occurrence of loss. If such objection be made, City as fiduciary shall make settlement with the insurers in accordance with such agreement as the parties in interest may reach. If no such agreement among the parties in interest is reached, City as fiduciary shall adjust and settle the loss with the insurers and, if required in writing by any party in interest, City as fiduciary shall give bond for the proper performance of such duties.

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5.7 Partial Utilization, Acknowledgement of Property Insurer. If City finds it necessary to occupy or use a portion or portions of the Project prior to Completion of all the Work, no such use or occupancy shall commence before the insurers providing the property insurance have acknowledged notice thereof and in writing effected any changes in coverage necessitated thereby. The insurers providing the property insurance shall consent by endorsement on the policy or policies, but the property insurance shall not be canceled or permitted to lapse on account of any such partial use or occupancy.

5.8 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by City. Design-Build Entity shall guarantee that, at the option of City, either: (1) the insurer shall reduce or eliminate such deductibles or selfinsured retentions as respects City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions; or (2) the Design-Build Entity shall procure a bond guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses.

5.9 Claims Made Policies. Claims made policies are not acceptable other than for Professional Liability. In addition to the requirements above, for any claims made policy:

The Retroactive Date must be shown and must be before the date of the Contract or the beginning of contract work; Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after City’s acceptance of the Work; and If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Design-Build Entity must purchase “extended reporting” coverage for a minimum of five (5) years after City’s acceptance of the Work.

5.10 Subcontractor Insurance Requirements. Design-Build Entity shall not allow any Subcontractors to commence work on any subcontract relating to the Work until DesignBuild Entity has verified that all Subcontractors maintain insurance meeting all requirements under this Section and has provided evidence to City of such insurance. For Commercial General Liability coverage Subcontractors shall provide coverage naming City, its officials, officers, employees, agents, and volunteers with a format at least as broad as CG 20 38 04 13. If requested by Design-Build Entity, City may approve different scopes or minimum limits of insurance for particular Subcontractors. Design-Build Entity shall confirm that City shall be named as additional insureds on all Subcontractors’ policies of Commercial General Liability Insurance and Commercial Automobile Insurance.

5.12 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to City.

5.13 Verification of Coverage. Design-Build Entity shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Contract on forms satisfactory to 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. All certificates and endorsements must be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at any time.

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5.14 Reservation of Rights. 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.

5.15 Performance Bond and Payment Bond.

A. The Design-Build Entity shall submit performance and payment 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 City conditioned upon the faithful performance by the Design-Build Entity 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. The Design-Build Entity shall furnish bonds covering the faithful performance of the Contract (Performance Bond) and payment of obligations arising thereunder (Payment Bond) on the forms contained in the Contract.

The obligations of the performance bond surety shall continue so long as any obligation of Design-Build Entity remains. Nothing herein shall limit the City’s rights or the Design-Build Entity’s or surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.

B. The Payment Bond and Performance Bond shall be in effect on the date the Contract is signed by City. The Design-Build Entity shall promptly furnish such additional security as may be required by City to protect its interests and those interests of persons or firms supplying labor or materials to the Project. The premiums for the Payment Bond and Performance Bond shall be paid by the Design-Build Entity. The Design-Build Entity maintains and agrees that it has executed Payment and Performance Bonds in the amounts and manner required by the Contract Documents.

No payment will be made to the Design-Build Entity until the Design-Build Entity’s Payment Bond and Performance Bond have been approved by City.

C. Should, in City’s sole opinion, any bond become insufficient or surety found to be unsatisfactory, the Design-Build Entity shall renew or replace the effected bond within 10 Days of receiving notice from City. In the event the surety or the Design-Build Entity intends to reduce or cancel any required bonds, at least thirty (30) Days prior written notice shall be given to City, and the Design-Build Entity shall post acceptable replacement bonds at least ten (10) Days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Contract until any replacement bonds required by this Article are accepted by City.

D. To the extent, if any, that the Contract Price is increased in accordance with the Contract, the Design-Build Entity shall, upon request of City, cause the amount of the bonds to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to City. The bonds shall further provide that no change or alteration of the Contract (including, without limitation, an increase in the Contract Price, as referred to above), extensions of time, or modifications of the time, terms, or conditions of payment to the Design-Build Entity will release the surety. If the Design-Build Entity fails to furnish any required bond, City may terminate the Contract for cause.

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ARTICLE 6 -DESIGN-BUILD ENTITY’S RESPONSIBILITIES

6.1 Design-Build Entity Responsibility; Independent Contractor.

A. The Design-Build Entity shall be responsible to City for acts and omissions of the Design-Build Entity’s employees, Subcontractors, material and equipment suppliers, and their agents, employees, invitees, and other persons performing portions of Work on the Project under direct or indirect contract with the Design-Build Entity or any of its Subcontractors. City retains the Design-Build Entity on an independent contractor basis. Design-Build Entity retains the right to perform similar or different services for others during the term of this Contract. The Design-Build Entity is not an employee, agent or representative of City. The Design-Build Entity represents that it is fully experienced and properly qualified to perform the class of Work provided for in this Contract and that it is properly licensed, equipped, organized, and financed to perform Work on the Project. Neither City, nor any of its officials, officers, directors, employees or agents shall have control over the conduct of Design-Build Entity or any of DesignBuild Entity's officers, employees, or agents, except as set forth in this Contract. The Design-Build Entity shall maintain complete control over its employees and its Subcontractors and shall pay all wages, salaries and other amounts due such personnel in connection with their performance as required by law. The Design-Build Entity shall be responsible for all reports and obligations respecting such personnel, including but not limited to, social security taxes, income tax withholdings, unemployment insurance, and workers’ compensation insurance.

6.2 Review of Contract Documents and Field Conditions by The Design-Build Entity; Single Point Responsibility of The Design-Build Entity.

A. In addition to the examination and reviews performed, and obligations assumed, incident to making the representations set forth in the Contract, the Design-Build Entity shall carefully study and compare each of the Contract Documents provided by City with the others and with information furnished by City, and shall promptly report in writing to City’s Representative any errors, inconsistencies, or omissions in the Contract Documents provided by City or inconsistencies with Applicable Law observed by the Design-Build Entity. The Design-Build Entity shall be solely responsible for any errors, inconsistencies or omissions in the Contract Documents if the Design-Build Entity fails to perform such review and examination or fails to report such errors, inconsistencies or omissions to City in writing.

B. The Design-Build Entity is responsible for the design and construction of the Project and shall use the highest design and engineering standards of care applicable to projects, buildings or work of similar size, complexity, quality and scope in performing Work on the Project. The Design-Build Entity shall be solely responsible for any and all design errors including, but without limitation, errors, inconsistencies or omissions in the Construction Documents. The Design-Build Entity shall take field measurements, verify field conditions, and carefully compare with the Contract Documents such field measurements, conditions, and other information known to the Design-Build Entity before commencing Work on the Project. Errors, inconsistencies, or omissions discovered at any time shall be promptly reported in writing to City’s Representative.

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C. If the Design-Build Entity performs any design and/or construction activity which it knows, or should know, involves an error, inconsistency, or omission referred to in this Article, without notifying and obtaining the written consent of City’s Representative, the Design-Build Entity shall be responsible for the resultant losses, including, without limitation, the costs of correcting Defective Work.

D. City does not assume any obligation to employ the Design-Build Entity’s services or pay the Design-Build Entity royalties of any type as to future programs that may result from Work performed under this Contract.

E. The Design-Build Entity shall be responsible for all plotting, printing, copying and distribution costs of any and all documents required in connection with Work on the Project.

F. The Design-Build Entity agrees that it has single point responsibility for the design and construction of this Project, and agrees to utilize the highest standard of excellent design, engineering and construction practices. The Design-Build Entity has the duty to act in City’s best interests at all times throughout the course and performance of this Contract.

6.3 Design, Supervision and Construction Procedures.

A. The Design-Build Entity shall supervise, coordinate, and direct all Work on the Project using the Design-Build Entity’s best skill and attention and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. The Design-Build Entity shall be solely responsible for, and have control over, the entire design effort, construction means, methods, techniques, sequences, procedures, and the coordination of all portions of Work on the Project, including, but without limitation, landscape and site work, utilities, and building systems.

B. The Design-Build Entity shall be responsible to City for acts and omissions of the Design-Build Entity, its agents, employees, and Subcontractors, and their respective agents and employees.

C. The Design-Build Entity shall not be relieved of its obligation to perform all Work on the Project in accordance with the Contract Documents either by acts or omissions of City or City’s Representative in the administration of the Contract, or by tests, inspections, or approvals required, or performed, by persons or firms other than the Design-Build Entity.

D. The Design-Build Entity shall be responsible for inspection of all portions of Work on the Project to determine that such portions conform to the requirements of the Contract Documents and are ready to receive subsequent Work.

E. To facilitate communications and the management of the design process, the DesignBuild Entity shall maintain an office in the City’s County for the duration of the design process.

F. Unless otherwise provided in the Contract Documents, the Design-Build Entity shall provide and pay for all professional design/engineering services, services, labor, materials, equipment, tools, construction equipment and machinery, water, heat, Packet Pg. 56
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utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work on the Project, whether temporary or permanent and whether or not incorporated or to be incorporated in Work on the Project. The DesignBuild Entity shall furnish architectural and engineering services for the preparation of Construction Documents necessary to complete the Project in accordance with the requirements of the Contract Documents. From the City-approved Construction Documents, which are developed from the City-accepted Proposal, the Design-Build Entity shall furnish all labor, materials, equipment, services, and transportation necessary to complete construction of the Project, including site work, structures and utilities.

G. The Design-Build Entity is required to deliver to City, if requested, any and all Design Materials including, but not limited to, calculations, preliminary drawings, construction drawings, shop drawings, electronic media data, tenant improvement documents, sketches, illustrations, specifications, descriptions, models, mock ups, and other information developed, prepared, furnished, or delivered in the prosecution of the Design Work.

H. The Design-Build Entity is responsible for preparation of the Construction Documents for the entire Project. The Design-Build Entity is responsible for construction of the entire Project as required by the Contract Documents.

6.4 Labor; Working Hours.

A. The Design-Build Entity shall provide competent, suitably qualified personnel to survey and lay out the Work and perform construction as required by the Contract Documents.

The Design-Build Entity shall at all times maintain good discipline and order at the Site.

The Design-Build Entity will provide all labor needed to complete the Work within the Contract Times.

B. Except as otherwise required for the safety or protection of persons or the Work or property at the Site or adjacent thereto, and except as otherwise stated in the Contract Documents, all Work at the Site shall be performed during regular working hours, which are defined as hours between 7:00 a.m. and 3:30 p.m. any day Monday through Friday of any week except on Holidays and/or during Schedule Constraints defined in the Contract Documents. The Design-Build Entity will not permit the performance of Work on a Saturday, Sunday, any Holiday or during identified Schedule Constraints without City’s written consent given after prior written notice to City’s Representative.

The Design-Build Entity shall be responsible for, and shall reimburse City for, all inspection costs outside regular working hours, including overtime.

6.5 Progress Meetings.

A. The Design-Build Entity shall schedule and hold regular on-Site progress meetings at least weekly and at other times as requested by the City or as required by progress of the Work. The Design-Build Entity, City’s Representative, and all Subcontractors active on the Site shall attend each meeting. The Design-Build Entity may at its discretion request attendance by representatives of its Suppliers, manufacturers, and other Subcontractors. City’s Representative will preside at the progress meetings and will arrange for keeping and distributing the minutes. The purpose of the meetings is Packet Pg. 57
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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 Design-Build Entity shall present any issues which may impact its progress with a view to resolve these issues expeditiously.

6.6 Cost-Loaded CPM Progress Schedule and Recovery Schedule.

A. Design-Build Entity shall adhere to the Project Schedule, which shall be a cost-loaded CPM progress schedule established in accordance with the Contract Documents as it may be adjusted from time to time as provided below:

1. Design-Build Entity shall submit to City’s Representative for acceptance proposed adjustments in the Project Schedule that will not result in changing the Project Completion Date. Such adjustments will comply with any provisions of the General Requirements applicable thereto.

2. Proposed adjustments in the Project Schedule that will change the Project Completion Date shall be submitted in accordance with the requirements of the Contract Documents. Adjustments in the Project Completion Date may only be made by a Change Order.

3. Should any of the following conditions exist, City may require Design-Build Entity to prepare, at no extra cost to City, a plan of action and a recovery schedule for completing the Work and achieving all contractual milestones within the Project Completion Date:
a. The Design-Build Entity's monthly progress report indicates delays that are, in the opinion of City, of sufficient magnitude that City questions the DesignBuild Entity's ability to complete the Work; b. The Project Schedule shows the Design-Build Entity to be thirty (30) or more Days behind the critical path at any time during construction; c. The Design-Build Entity desires to make changes in the logic or the planned duration of future activities of the Project Schedule which, in the opinion of City, are major in nature.
d. The recovery schedule shall include proposed revisions to the Project Schedule, demonstrating how Design-Build Entity intends to achieve all contractual milestones including contract completion within the Project Completion Date. The submittal shall include a narrative describing the actions planned by the Design-Build Entity to recover the schedule. e. Design-Build Entity shall submit the recovery schedule within seven (7) Days of City’s request:
(i) If Design-Build Entity asserts that City is responsible for the delay, failure to submit the recovery schedule within seven (7) Days of City’s request will be considered a concurrent delay event attributable to Design-Build Entity, and Design-Build Entity shall only be entitled to non-compensable adjustments to the Project Completion Date.

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(ii) If Design-Build Entity is responsible for the delay, this provision will not limit or affect Design-Build Entity's liability and failure to submit the recovery schedule with seven (7) Days of City’s request may result in City withholding progress payments or other amounts due under the Contract Documents.
f. Design-Build Entity is responsible for all costs associated with the preparation and execution of the recovery schedule, including any necessary recovery actions, which may include, but are not limited to, assignment of additional labor, and/or equipment, shift or overtime work, expediting of submittals or deliveries, overlapping of activities or sequencing changes to increase activity concurrence.
g. Regardless of whether City directs Design-Build Entity to prepare a recovery schedule pursuant to this Article, Design-Build Entity shall promptly undertake appropriate action at no additional cost to City to recover the schedule whenever the current Project Schedule shows that the Design-Build Entity will not achieve a milestone and/or complete the Work within the Project Completion Date.

B. Unless otherwise specified in the Contract Documents, Design-Build Entity shall provide and assume full responsibility for all services, materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities, and all other facilities and incidentals necessary for the performance, testing, start up, and completion of the Work within the Project Completion Date.

C. Failure of City’s Representative to discover errors or omissions in schedules that it has reviewed, or to inform the Design-Build Entity that the Design-Build Entity, Subcontractors, or others are behind schedule, or to direct or enforce procedures for complying with the Project Schedule shall not relieve the Design-Build Entity from its sole responsibility to perform and complete all Work on the Project within the Project Completion Date and shall not be a cause for an adjustment of the Project Completion Date or the Contract Price.

D. The Design-Build Entity shall perform all Work on the Project in accordance with the current accepted Project Schedule.

6.7 Materials.

A. All materials and equipment incorporated into the Work shall be as specified or, if not specified, shall be of good quality and new, except as otherwise provided in the Contract Documents. All materials furnished by the Design-Build Entity shall be of the most suitable grade for the purpose intended considering strength, ductility, durability, and best industry practice.

B. All special warranties and guarantees required by the Contract Documents shall expressly run to the benefit of City. If required by City’s Representative, Design-Build Entity shall furnish satisfactory evidence (including reports of required tests) as to the source, kind, and quality of materials and equipment.

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C. All materials and equipment shall be stored, applied, installed, connected, erected, protected, used, cleaned, and conditioned in accordance with instructions of the applicable supplier, except as otherwise may be provided in the Contract Documents.

D. 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. Design-Build Entity shall be entirely responsible for damage or loss by weather or other causes to materials or Work until City has accepted the Work. Materials shall be stored on the Project site in such manner so as not to interfere with any operations of City or any independent contractor.

E. 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.

Design-Build Entity warrants good title to all material, supplies, and equipment installed or incorporated in the work and agrees upon completion to deliver the Work to City free from any claims, liens, or encumbrances.

F. Inspection of Materials.

1. Materials furnished by the Design-Build Entity which will become a part of the Project shall be subject to inspection at any one or more of the following locations, as determined by City’s Representative: at the place of production or manufacture, at the shipping point, or at the site of the Work. To allow sufficient time to provide for inspection, the Design-Build Entity shall submit to City’s Representative, at the time of issuance, copies of purchase orders or other written instrument confirming procurement of the materials, including drawings and other pertinent information, covering materials on which inspection will be made.

2. No later than fourteen (14) Days prior to manufacture of material, Design-Build Entity shall inform City’s Representative, in writing, the date the material is to be manufactured.

3. The inspection of materials at any of the locations specified above or the waiving of the inspection thereof shall not impact whether the materials and equipment conform to the Contract Documents. Design-Build Entity will not be relieved from furnishing materials meeting the requirements of the Contract Documents due to City’s inspection or lack of inspection of the equipment or materials. Acceptance of any materials will be made only after materials are installed in the Project.

6.8 Submittals.

A. Industry Standard Submittals.

1. Design-Build Entity will identify in the Construction Documents all industry standard submittals for all materials, systems, and equipment incorporated into the Work.

B. Schedule of Submittals.

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1. Design-Build Entity will prepare and deliver a Schedule of Submittals to City’s Representative that has been fully integrated with the Cost-Loaded CPM Progress Schedule and identifies each Submittal required by the Construction Documents as well as the date on which Design-Build Entity will deliver each Submittal to City’s Representative. Each Submittal must be delivered to City’s Representative at least thirty (30) Days prior to the date the material or equipment is scheduled to be incorporated into the Work. The Design-Build Entity is responsible for any schedule delays resulting from the Submittal process.

2. Design-Build Entity must submit all submittals required by the Construction Documents in accordance with the Schedule of Submittals. If Design-Build Entity fails to submit the submittals in accordance with the Schedule of Submittals, Design-Build Entity will be solely liable for any delays or impacts caused by the delayed submittal, whether direct or indirect. Design-Build Entity 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.

3. Where a Submittal, Shop Drawing or Sample is required by the Construction Documents, any related Work performed prior to City’s Representative’s review and approval of the pertinent Submittal will be at the sole expense and responsibility of the Design-Build Entity.

C. Submittal Procedures.

1. The Design-Build Entity will follow the following procedures for each Submittal, Shop Drawing and Sample required by the Contract Documents:
a. Transmit three (3) copies of each with a Submittal Transmittal. b. Transmittals will be sequentially numbered. The Design-Build Entity to mark revised Submittals with original number and sequential alphabetic suffix.
c. Each Submittal will identify the Project, the Design-Build Entity, Subcontractor and supplier, pertinent Construction Document and detail number, and specification section number appropriate to the Submittal. d. The Design-Build Entity must sign each Submittal, certifying that it has reviewed and approved the Submittal, verified products required, field dimensions, adjacent construction work, and that coordination of information is according to requirements of the Project 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.

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f. When a Submittal is revised for resubmission, the Design-Build Entity shall promptly address City comments and resubmit. The Design-Build Entity shall identify changes made since previous submission.
g. City’s review of Submittals shall not relieve the Design-Build Entity from responsibility for deviations from the Contract Documents unless the Design-Build Entity has, in writing, called City’s attention to such deviations at time of submission and City’s has taken no exception to the deviation.

City’s review of Submittals shall not relieve the Design-Build Entity from responsibility for errors in the Submittals.
h. Submittals not required by the Construction Documents or requested by City’s Representative will not be acknowledged or processed. i. Incomplete Submittals will not be reviewed by City’s Representative.

Delays resulting from incomplete submittals are not the responsibility of City’s Representative.
j. The Design-Build Entity shall not be entitled to any extension of the Project Completion Date as a result of the Submittal process.

6.9 Shop Drawing and Sample Submittal Procedures.

A. Before submitting each Shop Drawing or Sample, Design-Build Entity 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

4. Determined and verified all information relative to the Design-Build Entity’s responsibilities for means, methods, techniques, sequences, and procedures of construction, and safety precautions and programs incident thereto.

B. With each Submittal, the Design-Build Entity shall give City’s Representative 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 City’s Representative for review and approval of each such variation.

C. Shop Drawings.

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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 City’s Representative the services, materials, and equipment Design-Build Entity proposes to provide and to enable City’s Representative to review the information Representative for assessing conformance with information given and design concept expressed in Contract Documents.

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. Design-Build Entity shall make revisions and provide additional information when required by authorities having jurisdiction.

D. Samples.

1. 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 City’s Representative 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 Representative’s Review.

1. City’s Representative will review Shop Drawings and Samples in accordance with the Schedule of Submittals. City’s Representative’s review and acceptance will be only to determine if the items covered by the Submittals will, after installation or incorporation in the Project, conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents.

2. City’s Representative’s 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 design or 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. City’s Representative’s review and acceptance shall not relieve the DesignBuild Entity from responsibility for any variation from the requirements of the Contract Documents unless City’s Representative has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Submittal.

F. The Design-Build Entity shall make corrections required by City’s Representative and shall return three (3) corrected copies of Shop Drawings and Product Data, and submit, as required, new Samples for review and approval. The Design-Build Entity Packet Pg. 63
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shall direct specific attention in writing to revisions other than the corrections called for by City’s Representative on previous Submittals. City will review the first resubmittal of Shop Drawings at its cost. City reserves the right to reduce the Contract Price by Change Order for its cost for any subsequent reviews of Shop Drawing resubmittals.

6.10 Construction Documents.

A. Construction Documents.

1. The A/E shall design the building systems and prepare the Construction Documents. The Construction Documents shall provide information customarily necessary in documents for projects of similar size, complexity, and quality. The Construction Documents shall include all information required by the building trades to complete the construction of the Project, other than such details customarily developed by others during construction. City’s review of the Construction Documents shall be conducted in accordance with the approved Project Schedule with procedures set forth in this Article. Such review shall not relieve the Design-Build Entity from its responsibilities under the Contract. Such review shall not be deemed an approval or waiver by City of any deviation from, or of the Design-Build Entity’s failure to comply with, any provision or requirement of the Contract Documents, unless such deviation or failure has been identified as such in writing in the Document submitted by the Design-Build Entity and approved by City.

2. However, it is acknowledged by the parties hereto that inherent in a Design-Build concept, bridging or otherwise, the production and review of Construction Documents may be a continuing process with portions thereof completed at different times. The Design-Build Entity will submit the Construction Document packages to City for review and approval in accordance with the agreed upon schedule, unless otherwise approved in writing by City. The Project Schedule shall indicate the times for City to review the completion of each such portion of the Construction Documents and a reasonable time for review of same.

3. The Design-Build Entity shall submit completed packages of the Construction Documents for review by City at the times indicated on the Project Schedule and as defined in the Scheduling Specification. Meetings between the Design-Build Entity and City to review the Construction Document packages, shall be scheduled at least every two weeks, or as otherwise agreed to by the parties, and held so as not to delay Work on the Project. The Design-Build Entity will conduct these design meetings with City in accordance with the schedule approved by City. The DesignBuild Entity will be responsible for preparing and circulating for the parties review, design meeting minutes from all such meetings.

B. Field Engineering.

1. The Design-Build Entity shall retain and pay expenses of a civil engineer or land surveyor to establish on the Project site the required reference points and benchmarks, establish building lines and elevations, check for building framing, plumbness, and establish on building frame the required basic grid lines. The engineer or land surveyor shall be properly licensed in the State of California.

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2. The Design-Build Entity shall locate and protect control points prior to starting Work on the Project site and preserve permanent reference points during construction, and shall require the engineer or surveyor to replace control points which become lost or destroyed.

C. Geotechnical and Survey.

1. City may provide a geotechnical report to Design-Build Entity that shall not be considered a part of the Contract Documents and shall be informational only and may not be relied upon by Design-Build Entity to form its basis of design. DesignBuild Entity shall be responsible for obtaining its own geotechnical report which includes supporting data, findings and recommendations; and also with a legal description and a project survey, as necessary, which shall become a part of the Contract Documents. The Design Work shall be consistent with both the findings and recommendations of the Design-Build Entity’s geotechnical report and legal description and Project survey, or such other geotechnical recommendations obtained by Design-Build Entity at its sole cost and expense.

2. The Design-Build Entity shall verify the location and depth (elevation) of all existing utilities and services before performing any excavation work.

3. Any additional tests, borings, etc. necessary to support the Construction Documents shall be the responsibility of the Design-Build Entity.

6.11 Dust Control.

A. Design-Build Entity, at its expense, shall maintain all excavations, embankments, haul roads, permanent access rods, 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.

6.12 Air Pollution.

A. To the extent applicable, Design-Build Entity 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 South Coast Air Quality Management Agency (SCAQMD) and/or California Air Resources Board (CARB). Although the SCAQMD and CARB limits and requirements are more broad, Design-Build Entity shall specifically be aware of their application to "portable equipment", which definition is considered by SCAQMD and CARB to include any item of equipment with a fuel-powered engine. Design-Build Entity shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Design-Build Entity, its sub-consultants, or others for whom DesignBuild Entity is responsible under its indemnity obligations provided for in this Agreement.

B. The Design-Build Entity 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 Packet Pg. 65
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applicable material requirements. Design-Build Entity shall not discharge into the atmosphere from any source whatever smoke, dust, or other air contaminants in violation of the laws, rules, and regulations of the governmental entities having jurisdiction.

6.13 Patent Fees and Royalties.

A. Design-Build Entity shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product, or device is specified in the Contract Documents for use in the performance of the Work and if, to the actual knowledge of City or City’s Representative, its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by City in the Contract Documents.

B. To the fullest extent permitted by Applicable Laws, Design-Build Entity shall indemnify, defend, and hold harmless City and City’s Representative, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them, from and against 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 any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device not specified in the Contract Documents or specified in the Contract Documents and identified as being subject to payment of any license fee or royalty to others required by patent rights or copyrights.

6.14 Permits and Licenses.

A. Design-Build Entity shall obtain and pay for all other permits and licenses required for the Work, including excavation permit and permits for plumbing, mechanical and electrical work and for operations in or over public streets or right of way under jurisdiction of public agencies other than City.

B. The Design-Build Entity shall arrange and pay for all off-site inspection of the Work related to permits and licenses, including certification, required by the Performance Specifications, drawings, or by governing authorities, except for such off-site inspections identified as City’s responsibility in the Contract Documents.

C. Before acceptance of the Work, the Design-Build Entity shall submit all licenses, permits, certificates of inspection and required approvals to City.

6.15 Applicable Laws.

A. Design-Build Entity 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 City nor City’s Representative shall be responsible for monitoring Design-Build Entity’s compliance with any Applicable Laws.

If Design-Build Entity performs any Work knowing or having reason to know that it is Packet Pg. 66
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contrary to Applicable Laws, Design-Build Entity 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.

6.16 Labor Laws and Design-Build Entity’s Obligations.

A. Hours of Work.

1. The Design-Build Entity and Subcontractors shall furnish sufficient forces to ensure the prosecution of the Work on the Project in accordance with the Construction Schedule and in such a manner to allow for the full and adequate completion of the Project within the Project Completion Date.

2. Work on the Project shall be performed during regular working hours, except that in the event of an emergency or when required to complete the Work on the Project in accordance with job progress, Work may be performed outside of regular working hours with advance written notice to City. Permissible working hours shall be between 7:00 a.m. to 3:30 p.m. and shall not be changed except with consent of City.

3. Eight (8) hours of work shall constitute a legal day’s work. The Design-Build Entity and each Subcontractor shall forfeit, as penalty to City, twenty-five dollars ($25) for each worker employed in the execution of Work on the Project by the DesignBuild Entity or any Subcontractor for each day during which such worker is required or permitted to work more than eight (8) hours in any one day and forty (40) hours in any week in violation of the provisions of the Labor Code, and in particular, Section 1810 to Section 1815, except as provided in Labor Code Section 1815.

4. If the work done after hours is required by the Contract to be done outside the Design-Build Entity’s regular working hours, the costs of any inspections, if required to be done outside normal working hours, shall be borne by City. If City allows the Design-Build Entity to do Work outside regular working hours for the Design-Build Entity’s own convenience, the costs of any inspections required outside regular working hours shall be invoiced to the Design-Build Entity by City and deducted from the next progress payment. If the Design-Build Entity elects to perform Work outside the Inspector’s regular working hours, costs of any inspections required outside regular working hours shall be invoiced to the DesignBuild Entity by City and deducted from the next progress payment.

5. No Work on the Project or other activities by or on behalf of the Design-Build Entity which presents a hazard or unreasonable disruption to City staff shall be allowed during normal working hours. The determination as to whether Work on the Project or some other activity presents a hazard or constitutes an unreasonable disruption to City staff shall be made by and pursuant to the sole discretion of a representative of City. All Work on the Project or other activities which could present a hazard or unreasonable disruption to City staff shall be performed before or after normal working hours, on weekends, or on an City recognized holiday. Neither the Design-Build Entity nor its Subcontractors or anyone working on behalf of the Design-Build Entity or Subcontractors shall be entitled to additional compensation Packet Pg. 67
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or an extension of the Project Completion Date for having to arrange their Work schedule so as not to violate the provisions of this Article 6.17A. The Design-Build Entity, Subcontractors and persons working on behalf of the Design-Build Entity shall be expected to arrange such Work and other activities in advance so as to avoid creating monetary or time impacts.

B. Wage Rates, Travel, and Subsistence.

1. The Design-Build Entity is aware of the requirements of Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Since the Work on the 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, the Design-Build Entity agrees to fully comply with such Prevailing Wage Laws. City has obtained the prevailing wage rates from the Director of the Department of Industrial Relations, State of California. Copies of the prevailing wage rates are on file at City’s office and shall be made available to any interested party on request. the Design-Build Entity shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to perform the Project available to interested parties upon request, and shall post copies at the Design-Build Entity’s principal place of business and at the Project site. The Design-Build Entity shall defend, indemnify and hold City, its elected officials, officers, employees and agents 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. Pursuant to Labor Code Section 1775, the Design-Build Entity is hereby advised that in the event that the Design-Build Entity fails to pay prevailing wages, the Design-Build Entity will be held liable for penalties and for shortfalls in wages and such amounts may be withheld from progress payments. the Design-Build Entity and each Subcontractor shall forfeit as a penalty to City not more than two hundred dollars ($200) for each Day, or portion thereof, for each worker paid less than the stipulated prevailing wage rate for any work done by him, or by any subcontract under him, in violation of the provisions of the Labor Code. The difference between such stipulated prevailing wage rate and the amount paid to each worker for each Day or portion thereof for which each worker was paid less than the stipulated prevailing wage rate shall be paid to each worker by the Design-Build Entity.

3. The Design-Build Entity 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.

C. Labor Compliance/Payroll Records.

1. Pursuant to Labor Code Section 1776, the Design-Build Entity and each Subcontractor shall maintain weekly certified payroll records showing the name, address, social security number, work classification, straight time and overtime hours paid each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed in connection with Packet Pg. 68
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the Project. The Design-Build Entity shall certify under penalty of perjury that records maintained and submitted by the Design-Build Entity are true and accurate. The Design-Build Entity shall also require Subcontractor(s) to certify weekly payroll records under penalty of perjury.

2. In accordance with Labor Code section 1771.4, the Design-Build Entity and each Subcontractor shall furnish the certified payroll records directly to the Department of Industrial Relations (“DIR”) on a weekly basis and in the format prescribed by the DIR. This may include electronic submission. Design-Build Entity shall ensure full compliance with all requirements and regulations from the DIR relating to labor compliance monitoring and enforcement and all other applicable labor law.

3. Any stop orders issued by the DIR against Design-Build Entity or any Subcontractor that affect Design-Build Entity’s performance of Work, including any delay, shall be Design-Build Entity’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Design-Build Entity caused delay subject to any applicable liquidated damages and shall not be compensable by the City. Design-Build Entity 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 Design-Build Entity or any Subcontractor.

4. The payroll records described herein shall be certified and submitted by the Design-Build Entity at a time designated by the City. The Design-Build Entity 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 Design-Build Entity 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 6.17C, the Design-Build Entity shall have ten (10) Days in which to comply subsequent to receipt of written notice specifying any item or actions necessary to ensure compliance with this Article 6.17C. Should noncompliance still be evident after such ten (10) day period, the Design-Build Entity shall, as a penalty to the City, forfeit One Hundred Dollars ($100.00) for each day, or portion thereof, for each Packet Pg. 69
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worker until strict compliance is effectuated. Upon the request of DIR, such penalties shall be withheld from contract payments.

8. In submitting the Proposal on this Project, it shall be the Design-Build Entity’s sole responsibility to evaluate and include the cost of complying with all labor compliance requirements under this Contract and Applicable Law in its Proposal.

9. The Design-Build Entity shall include provisions of this Article 6.17C in all Subcontracts and require Subcontractors to comply with these provisions at no additional cost to City.

D. Apprentices.

1. The Design-Build Entity’s attention is directed to the provisions of Sections 1777.5, 1777.6, and 1777.7 of the Labor Code concerning employment of apprentices by the Design-Build Entity or any Subcontractor. The Design-Build Entity shall obtain a certificate of apprenticeship before employing any apprentice pursuant to Sections 1777.5, 1777.6, and 1777.7 of the Labor Code. Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from DIR, the Administrator of Apprenticeships, 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.

E. Nondiscrimination.

1. Pursuant to Labor Code section 1735 and other applicable provisions of law, the Design-Build Entity and its Subcontractors shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, political affiliation, marital status, or handicap on this Work.

The Design-Build Entity will take affirmative action to insure that employees are treated during employment or training without regard to their race, color, religion, sex, national origin, age, political affiliation, marital status, or handicap.

F. Workers’ Compensation.

1. Pursuant to Labor Code section 1860, Design-Build Entity shall secure the payment of workers’ compensation to its employees in accordance with the provisions of Labor Code section 3700. By its signature hereunder, Design-Build Entity certifies that he is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Work.

G. Public Works Registration.

1. Pursuant to Labor Code sections 1725.5 and 1771.1, the Design-Build Entity and its Subcontractors must be registered with the Department of Industrial Relations prior to the execution of a contract to perform public works. By entering into this Packet Pg. 70
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Contract, Design-Build Entity represents that it is aware of the registration requirement and is currently registered with the DIR. Design-Build Entity shall maintain a current registration for the duration of the Project. Design-Build Entity 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.

6.17 Debarment
A. 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 Design-Build Entity shall be responsible for the payment of wages to workers of a debarred subcontractor who has been allowed to work on the Project.

6.18 Taxes.

A. The Design-Build Entity shall pay all sales, consumer, use, and other similar taxes required to be paid in accordance with the Applicable Law of the place of the Project which are applicable during the performance of the Project. 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 the Design-Build Entity will be responsible.

6.19 Use of Site and Other Areas.

A. Limitation on Use of Site and Other Areas. The Design-Build Entity 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. Design-Build Entity shall assume full responsibility for any damage to any such land or area, or to the City or occupant thereof, or of any adjacent land or areas resulting from the performance of the Work. Should any claim be made by any such City or occupant because of the performance of the Work, Design-Build Entity shall promptly settle with such other party by negotiation or otherwise resolve the claim by arbitration or other dispute resolution proceeding or at law.

B. Removal of Debris. During the progress of the Work Design-Build Entity 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.

C. Cleaning. Prior to Completion of the Work, Design-Build Entity shall clean the Site and the Work and make it ready for utilization by City. At the completion of the Work Design-Build Entity 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.

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D. Loading Structures. Design-Build Entity shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall DesignBuild Entity subject any part of the Work or adjacent property to stresses or pressures that will endanger it.

6.20 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 Design-Build Entity. Design-Build Entity 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, Design-Build Entity shall remove all temporary distribution systems. All permanent meters installed shall be listed in the Design-Build Entity’s name until the Work is accepted. If Work is to be performed in existing City’s facilities, Design-Build Entity may, to the extent authorized by City in writing, use City’s existing utilities. If Design-Build Entity uses City utilities, it shall compensate City for utilities used.

6.21 Record Drawings.

A. Design-Build Entity shall maintain in a safe place at the Site one record copy of the Contract Documents and written interpretations and clarifications in good order and annotated to show changes made during construction. 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. Said record drawings shall be supplemented by any detailed sketches as necessary or directed to fully indicate the Work as actually constructed. These master record drawings of the as-built conditions, including all revisions made necessary by Addenda and Change Orders shall be maintained up-todate 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.

B. Record drawings shall be accessible to City’s Representative at all times during the construction period. Upon Completion of the Project and as a condition of final acceptance, the Design-Build Entity shall finalize and deliver a complete set of record drawings to City’s Representative. The information submitted by the Design-Build Entity will be assumed to be correct, and the Design-Build Entity shall be responsible for, and liable to City, for the accuracy of such information, and for any errors or omissions which may or may not appear on the record drawings.

6.22 Safety and Protection.

A. Design-Build Entity 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. Design-Build Entity shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to:

1. all persons on the Site or who may be affected by the Work; Packet Pg. 72
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2. all the Work and materials and equipment to be incorporated therein, whether in storage on or off the Site; and

3. other property at the Site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, utilities, and Underground Facilities not designated for removal, relocation, or replacement in the course of construction.

B. Design-Build Entity 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. Design-Build Entity 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. Design-Build Entity shall comply with the applicable requirements of City’s safety programs, if any. Design-Build Entity shall inform City and City’s Representative of the specific requirements of Design-Build Entity’s safety program with which City’s and City’s Representative’s employees and representatives must comply while at the Site.

C. All damage, injury, or loss to any property caused, directly or indirectly, in whole or in part, by Design-Build Entity, any Subcontractor, Supplier, or any other individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable, shall be remedied by Design-Build Entity.

6.23 Safety Representative.

A. Design-Build Entity shall designate an OSHA-certified and experienced safety representative at the Project site whose duties and responsibilities shall be the prevention of accidents and the maintaining and supervising of safety precautions and programs. Design-Build Entity shall provide City’s Representative the name and contract information of the safety representative in writing. Design-Build Entity shall provide City’s Representative the name and contact information of the safety representative in writing.

6.24 Hazard Communication Programs.

A. Design-Build Entity 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 Project site in accordance with Applicable Laws.

6.25 Emergencies.

A. In an emergency affecting safety of life or of Work or of adjoining property, DesignBuild Entity, without special instruction or authorization from City, shall act to prevent such threatened loss or injury; and Design-Build Entity shall so act, without appeal, if directed or instructed by City. Any compensation claimed by Design-Build Entity on account of emergency work shall be determined in accordance with the Contract Documents.

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6.26 Guarantee.

A. The Design-Build Entity unconditionally guarantees all Work on the Project will be completed in accordance with the requirements of the Contract Documents, and will remain free of defects in workmanship and materials for a period of one (1) year from the date of Project Completion, unless a longer guarantee period is specifically called for in the Contract Documents. However, a shorter guarantee period shall apply to landscape plants, trees, turf, etc. Trees or shrubs greater than one gallon in size at the time of planting shall be guaranteed for one (1) year, and all other plant material shall be guaranteed for six (6) months. The Design-Build Entity shall repair or replace any and all Work, together with any adjacent work that may have been damaged or displaced, which was not in accordance with the requirements of the Contract Documents, or that may be defective in its workmanship or material within the guarantee period specified in the Contract Documents, without any expense whatsoever to City; ordinary wear and tear and abuse excepted.

B. The Design-Build Entity further agrees, within fourteen (14) Days, or as such shorter period as may be designated for emergency repairs, after being notified in writing by City, of any Work not in accordance with the requirements of the Contract Documents or any defects in the Work on the Project, that the Design-Build Entity shall commence and execute, with due diligence, all Work necessary to fulfill the terms of the guarantee. If City finds that the Design-Build Entity fails to perform any of the Work under the guarantee, City may elect to have the Work completed at the Design-Build Entity’s expense and the Design-Build Entity will pay costs of the Work upon demand.

City will be entitled to all costs, including reasonable attorneys’ fees and consultants’ expenses necessarily incurred upon the Design-Build Entity’s refusal to pay the above costs.

C. Where Defective Work (or damage to other Work resulting therefrom) has been corrected or removed and replaced, the Warranty period hereunder with respect to such Work shall be extended for an additional period of one (1) year after such correction or removal and replacement has been satisfactorily completed.

D. Design-Build Entity’s obligations under this Article are in addition to any other obligation or warranty and do not limit City’s rights and remedies pursuant to California Code of Civil Procedure sections 337.10 and 337.15. or any other Applicable Law.

E. Notwithstanding the foregoing provisions, in the event of an emergency constituting an immediate hazard to health or safety of City employees, property, or licensees, City may undertake, at the Design-Build Entity’s expense and without prior notice, all Work necessary to correct such condition(s) when it is caused by Work of the Design-Build Entity not being in accordance with the requirements of the Contract Documents.

6.27 Warranty.

A. The Design-Build Entity warrants to City that any and all materials, equipment and furnishings incorporated in the Project will be of good quality and new unless otherwise required or permitted by the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The foregoing warranty excludes improper operation, or normal Packet Pg. 74
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wear and tear under normal usage under the control of City. Such warranty shall exclude warranties relating to design, warranty of fitness, and any other express or implied warranties other than as set forth herein or in the Contract Documents; provided, however, that the foregoing shall not impair the rights of City to maintain an action for breach of contract against the Design-Build Entity. Nothing contained in these Contract Documents pertaining to warranty or guarantee shall be construed as limiting any other rights City may have at law, including rights for latent defects under Code of Civil Procedure Section 337.15.

6.28 Indemnification.

A. To the fullest extent allowed by law (including without limitation Civil Code Sections 2782 and 2782.8), the Design-Build Entity shall defend (with counsel of City’s choosing), indemnify and hold City, its officials, officers, agents, employees, and representatives free and harmless from and against any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, regardless of whether the allegations are false, fraudulent, or groundless, arising out of, related to, or in connection with any acts, omissions or willful misconduct of Design-Build Entity, its officials, officers, employees, agents, consultants, contractors, and Subcontractors arising out of or in connection with the performance of the Work or this Contract, including claims made by Subcontractors for nonpayment, and including without limitation the payment of all attorney’s fees and other related costs and expenses except to the extent caused by the sole or active negligence or willful misconduct of the City. The Design-Build Entity shall defend, at the Design-Build Entity’s own cost, expense and risk, with counsel of City’s choosing, any and all such suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its officials, officers, agents, employees and representatives. The Design-Build Entity shall pay and satisfy any judgment, award or decree that may be rendered against City, its officials, officers, agents, employees and representatives, in any such suit, action or other legal proceeding. The Design-Build Entity shall reimburse City, its officials, officers, agents, employees and representatives for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. The Design-Build Entity agrees to pay, or reimburse City and City’s Representative, for regulatory agency or court imposed fees, fines, or penalties imposed on City and City’s Representative arising from the Design-Build Entity’s failure to complete the Project in a timely manner and/or in accordance with the Contract Documents and any applicable permits or Applicable Laws. The DesignBuild Entity’s responsibility and obligation to pay, or reimburse City and City’s Representative, for these fees, fines, or penalties shall be in addition to the assessment of liquidated damages for late completion of the Project. This indemnity provision shall apply to all liability, as provided for above, regardless of whether any insurance policies are applicable. Insurance policy limits do not act as a limitation upon the amount of the indemnification to be provided by the Design-Build Entity.

B. If the Design-Build Entity’s obligation to defend, indemnify, and/or hold harmless arises out of the Design-Build Entity’s performance as a “design professional” (as that term is defined under Civil Code Section 2782.8), then, and only to the extent required under Civil Code Section 2782.8, which is fully incorporated herein, the Design-Build Entity’s indemnification obligation shall be limited to claims that arise out of, pertain to, Packet Pg. 75
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or relate to the negligence, recklessness, or willful misconduct of the Design-Build Entity, and, upon Design-Build Entity obtaining a final adjudication by a court of competent jurisdiction, Design-Build Entity’s liability for such claim, including the cost to defend, shall not exceed the Design-Build Entity’s proportionate percentage of fault.

C. In claims against any person or entity indemnified under this Article that are made by an employee of the Design-Build Entity or any Subcontractor, a person indirectly employed by the Design-Build Entity or any Subcontractor, or anyone for whose acts the Design-Build Entity or any Subcontractor may be liable, the indemnification obligation under this Article shall not be limited by any limitation on amount or type of damages, compensation, or benefits payable by or for Design-Build Entity or any Subcontractor under workers’ compensation acts, disability benefit acts, or other employee benefit acts or any other insurance limitations.

D. In the event the Design-Build Entity and one or more than one other party is connected with an accident or occurrence covered by this indemnification, then all such parties shall be jointly and severally responsible to each of the Indemnitees for indemnification, and the ultimate responsibility among such indemnifying parties for the loss and expense of any such indemnification shall be resolved without jeopardy to any indemnitee listed in this Article.

E. 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.

6.29 Superintendent.

A. The Design-Build Entity shall employ a competent Superintendent satisfactory to City who shall be in attendance at the Project site at all times during the performance of the Construction Work. Superintendent shall represent the Design-Build Entity and communications given to, and received from, Superintendent shall be binding on the Design-Build Entity. Superintendent must be able to proficiently speak, read and write in English. Failure to maintain a Superintendent on the Project site at all times Work on the Project is in progress shall be considered a material breach of this Contract, entitling City to terminate the Contract or, alternatively, issue a Suspension Order until the Superintendent is on the Project site. If, by virtue of issuance of said Suspension Order, the Design-Build Entity fails to complete the Contract by the Project Completion Date, the Design-Build Entity will be assessed Liquidated Damages in accordance with the Contract.

B. Any changes to the assignment of the Superintendent shall receive prior written approval from City. The Superintendent may not perform the work of any trade, pick up materials, or perform any work not directly related to the supervision and coordination of the Construction Work at the Project site when work is in progress. In addition, the Design-Build Entity will provide all key personnel identified in the Contract for the time periods stipulated.

6.30 Project Staffing.

A. The Design-Build Entity and each Subcontractor shall: furnish a competent and adequate staff as necessary for the proper administration, coordination, supervision, Packet Pg. 76
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and superintendence of its portion of the Work on the Project; organize the procurement of all materials and equipment so that the materials and equipment will be available at the time they are needed for the Work; and keep an adequate force of skilled and fit workers on the job to complete all Work on the Project in accordance with all requirements of the Contract.

B. City shall have the right, but not the obligation, to require the removal from the Project of the Design-Build Entity’s Representative, or any other superintendent, staff member, agent, or employee of any contractor, Subcontractor, material or equipment supplier, or any other entity working on the Project. Removal may be required for any reason designated by City, including but not limited to, failure or refusal to perform Work on the Project in a manner acceptable to City, uncooperative or incompetent performance on the Project, threatening the adequate or timely completion of the Project, or threatening the safety of persons or property.

6.31 Compliance With State Storm Water Permit for Construction.

A. Storm, surface, ground, nuisance, or other waters may be encountered at various times during the Work. Design-Build Entity hereby acknowledges that it has investigated the risk arising from such waters, has prepared its Proposal accordingly, and assumes any and all risks and liabilities arising therefrom.

B. Design-Build Entity shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Work including, without limitation, all applicable provisions of the City’s ordinances regulating discharges of storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. These include, but are not limited to California Regional Water Quality Control Boards (Santa Ana and San Diego Regions) Order No. R8-2009-0030 (NPDES Permit No. CAS 618030), Order No. R9-2009-0002, Order No. R8-2009-0045, Order No. R9-2013-0001 as amended by Order Nos. R9-2015- 0001 and R9-2015-0100, and State Water Resources Control Board Order No. 2010- 0014-DWQ, Order No. 2009-0009-DWQ, and Order No. 2012-0006-DWQ, and any amendment or renewal thereof.

C. The Design-Build Entity shall be required to 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 Stormwater Runoff Associated with Construction Activity ("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. The Design-Build Entity shall be responsible for filing the Notice of Intent and for obtaining the Permit. If applicable, the Design-Build Entity shall be solely responsible for preparing and implementing a Stormwater Pollution Prevention Plan (“SWPPP”) prior to initiating work on the Project.

It shall be the Design-Build Entity's responsibility to evaluate the cost of procuring the Permit and preparing the SWPPP as well as complying with the SWPPP and any necessary revision to the SWPPP to address storm water impacts. The Design-Build Entity shall comply with all requirements of the State Water Resources Control Board.

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The Design-Build Entity shall include all costs of compliance with specified requirements in the Price. For those Sites where construction activity results in the disturbance of less than one acre of total land area and/or do not need coverage under the Permit, the Design-Build Entity shall be responsible for preparing and implementing an Erosion and Sediment Control Plan in accordance with California Regional Water Quality Control Board Order No. R8-2009-0030, Order No. R9-2013- 0001 as amended by Order Nos. R9-2015-0001 and R9-2015-0100 and any amendment or renewal thereof.

D. The Design-Build Entity shall be responsible for procuring, implementing and complying with the provisions of the Permit and the SWPPP, including the standard provisions, monitoring and reporting requirements as required by the Permit. The Design-Build Entity shall provide copies of all reports and monitoring information to the City’s Representative. The Design-Build Entity shall comply with the lawful requirements of any applicable municipality, the County, drainage authority, and other local agencies regarding discharges of storm water to separate storm drain system or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.

E. Failure to comply with laws, regulations, and ordinances listed in this Article is a violation of federal and state law. Notwithstanding any other indemnity contained in this Contract, Design-Build Entity agrees to indemnify and hold harmless the City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, 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 laws, regulations, and ordinances listed above, arising out of or in connection with the Project, 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. City reserves the right to defend any enforcement action or civil action brought against the City for Design-Build Entity’s failure to comply with any applicable water quality law, regulation, or policy. DesignBuild Entity hereby agrees to be bound by, and to reimburse the City for the costs associated with, any enforcement action and/or settlement reached between the City and any relevant enforcement entity.

6.32 Monthly Report.

A. The Design-Build Entity shall prepare and submit to City, during both the Construction Documents Phase and the Construction Phase, monthly reports on the Work accomplished during the prior monthly period. Such reports shall be prepared in a manner and in a format approved by City. Reports shall be furnished at the time of submission of each monthly application for payment. The monthly report shall also set forth the Design-Build Entity’s projected progress for the forthcoming month.

6.33 Other Reports.

A. The Design-Build Entity will cooperate with City in preparing, or causing to be prepared, all or part of, periodic project reports required by state or federal agencies.

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6.34 Notice of Labor Dispute.

A. If the Design-Build Entity has knowledge that any actual or potential labor dispute is delaying, or threatens to delay, the timely performance of Work on the Project, the Design-Build Entity shall immediately give written notice including all relevant information to City.

B. The Design-Build Entity agrees to insert the substance of this Article 6.36 in any subcontract to which a labor dispute may delay the timely performance of Work on the Project, except that each subcontract shall provide that in the event its timely performance is delayed or threatened by delay by any actual or potential labor dispute, the Subcontractor shall immediately notify the next higher tier Subcontractor or the Design-Build Entity, as the case may be, of all relevant information concerning the dispute.

6.35 Documents and Samples At Project Site.

A. The Design-Build Entity shall maintain the following at the Project site:

1. One current copy of the Contract Documents (including Construction Documents), in good order and marked to record current changes and selections made during construction.

2. One copy of the prevailing wage rates applicable to the Project.

3. The current accepted Project Schedule.

4. Shop Drawings, Product Data, and Samples.

5. All other required submittals.

6.36 Cutting, Fitting, and Patching.

A. The Design-Build Entity shall do all cutting, fitting, or patching work required to make all parts of the Project come together properly and to allow the Project to receive or be received by the work of Separate Contractors shown upon, or reasonably implied by, the Contract Documents. The Design-Build Entity shall not endanger the Project, or adjacent property by cutting, digging, or otherwise. The Design-Build Entity shall not cut or alter the work of any Separate Contractor without the prior written consent of City’s Representative.

6.37 Access to Work.

A. City, City’s Representative, their consultants, and other persons authorized by City will at all times have access to the Work on the Project wherever it is in preparation or progress. The Design-Build Entity shall provide safe and proper facilities for such access and for inspection.

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6.38 Concealed Or Unknown Conditions.

A. Except and only to the extent provided otherwise in Articles 9 and 10, by signing the Contract, the Design-Build Entity agrees:

1. To bear the risk of concealed or unknown conditions, if any, which may be encountered in performing the Contract, as described in the Contract Documents, and/or can reasonably be inferred by the Design-Build Entity based on its experience and expertise; and

2. That the Design-Build Entity’s Contract Price for the Contract was made with full knowledge of this risk.

In agreeing to bear the risk of concealed or unknown conditions, the Design-Build Entity understands that, except and only to the extent provided otherwise in Articles 9 and 10, concealed and/or unknown conditions shall not excuse the Design-Build Entity from its obligation to achieve full completion of the Project within the Project Completion Date, and shall not entitle the Design-Build Entity to an adjustment of the Contract Price.

B. If concealed or unknown conditions are encountered which require, in the opinion of City’s Representative, design details which differ from those details shown in the Bridging Documents and City’s Representative finds that such revised design details will cause an increase or decrease in the cost of, or the time required for performance of the Contract, and if City agrees with City’s Representative’s determinations, City will issue a Change Order modifying the Contract to provide for the change in design details and to provide for an adjustment in the Contract Price and/or Project Completion Date pursuant to Articles 9 and 10 following receipt of a Change Order Request.

C. If the Design-Build Entity encounters concealed or unknown conditions that differ materially from those anticipated or expected, the Design-Build Entity shall notify City’s Representative within three (3) Days in writing of such conditions so that City’s Representative can determine if such conditions require design details which differ from those design details shown in the Bridging Documents. Design-Build Entity shall be liable to City for any extra costs incurred as a result of the Design-Build Entity’s failure to give such notice. Design-Build Entity’s failure to give such notice shall constitute a waiver by Design-Build Entity of any additional compensation.

6.39 Liability for and Repair of Damaged Work.

A. Design-Build Entity shall be liable for any and all damages and losses to the Project (whether by fire, theft, vandalism, earthquake, flood or otherwise) prior to City’s acceptance of the Project as fully completed.

6.40 Environmental Quality Protection
A. Landscape and Vegetation Preservation

1. The Design-Build Entity shall exercise care to preserve the natural landscape and vegetation, and shall conduct operations so as to prevent unnecessary Packet Pg. 80
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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.

B. Protected Species

1. 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 Design-Build Entity shall notify the City’s Representative immediately, giving the location and nature of the findings. Written confirmation of the evidence, location and nature of the findings shall be forwarded to City within 2 Days.

The Design-Build Entity shall immediately cease all construction activities in the immediate area of the discovery to the extent necessary to protect the endangered plant or animal. If directed by the City Representative, DesignBuild Entity 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 Design-Build Entity due to unreasonable or false notification of an endangered plant or animal will be borne by the Design-Build Entity.

C. Preservation of Historical and Archeological Resources

1. If, in the performance of the Work, Design-Build Entity should unearth cultural resources (for example, human remains, animal bones, stone tools, artifacts and/or midden deposits) through excavation, grading, watering or other means, the Design-Build Entity notify the City’s Representative immediately, giving the location and nature of the findings. The Design-Build Entity 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’s Representative, Design-Build Entity 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. The Design-Build Entity 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 DesignBuild Entity, without permission, injure, destroy, excavate, appropriate, or remove any cultural resource on or adjacent to the Site, it will be subject to Packet Pg. 81
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disciplinary action, arrest and penalty under applicable law. The Design-Build Entity shall be principally responsible for all costs of mitigation and/or restoration of cultural resources related to the unauthorized actions identified above. Design-Build Entity 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.

6.41 Technical Manuals; Spare Parts.

A. The Design-Build Entity shall submit technical operation and maintenance information for each item of mechanical, electrical and instrumentation equipment in an organized manner in the Technical Manual. It shall be written so that it can be used and understood by City’s operation and maintenance staff. The Design-Build Entity shall furnish to City six (6) identical Technical Manuals. Each set shall consist of one or more volumes, each of which shall be bound in a standard binder.

B. The Design-Build Entity shall furnish to City six (6) identical sets of spare parts information for all mechanical, electrical, and instrumentation equipment. The spare parts list shall include the current list price of each spare part. The spare parts list shall include those spare parts which each manufacturer recommends be maintained by City in inventory. Each manufacturer or supplier shall indicate the name, address, and telephone number of its nearest outlet of spare parts to assist City in ordering.

The Design-Build Entity shall cross-reference all spare parts lists to the equipment numbers designated in the Contract Documents. The spare parts lists shall be bound in standard size, 3-ring binder.

ARTICLE 7 -OTHER WORK AT THE PROJECT SITE

7.1 Related Work At Project Site.

A. Nothing contained in the Contract Documents shall be interpreted as granting to Design-Build Entity exclusive occupancy at the Project site. City reserves the right to award separate contracts for, or to perform with its own forces, construction or operations related to the Work or other construction or operations at or affecting the Project site, including portions of Work on the Project which have been deleted by Change Order. The Design-Build Entity shall cooperate with City’s employees or through other direct contracts, or have other work performed by utility owners (collectively, “Other Contractors”). If such other work is not noted in the Contract Documents, then written notice thereof will be given to the Design-Build Entity prior to starting any such other work. The Design-Build Entity shall participate with City and Separate Contractors in joint review of construction schedules and Project requirements when directed to do so. The Design-Build Entity shall make necessary revisions to the Project Schedule after such joint review.

B. Design-Build Entity shall be solely responsible for all costs associated with coordinating its Work with Separate Contractors. Design-Build Entity shall not be entitled to additional compensation from City for damages resulting from such simultaneous, collateral, and essential Work. If necessary to avoid or minimize such damage or delay, Design-Build Entity shall redeploy its work forces to other parts of Packet Pg. 82
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the Work, or adjust its Work schedule including reasonable acceleration of the Work.

If a portion of the Work on the Project is dependent upon the proper execution or results of other construction or operations by City or Separate Contractors, the DesignBuild Entity shall inspect such other design or construction or operations before proceeding with that portion of the Work on the Project. The Design-Build Entity shall promptly report to City’s Representative apparent discrepancies or defects which render the other design, construction or operations unsuitable to receive the Work on the Project. Unless otherwise directed by City’s Representative, the Design-Build Entity shall not proceed with the portion of the Work on the Project affected until apparent discrepancies or defects have been corrected. Failure of the Design-Build Entity to so report within a reasonable time after discovering such discrepancies or defects shall constitute an acknowledgment that the other construction or operations by City or Separate Contractors is suitable to receive the Work on the Project, except as to defects not then reasonably discoverable.

C. Design-Build Entity shall afford each Separate Contractor proper and safe access to the Project site, provide a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such other work, and properly coordinate the Work with theirs. Design-Build Entity shall do all cutting, fitting, and patching of the Work that may be required to properly connect or otherwise make its several parts come together and properly integrate with such other work. Design-Build Entity shall not endanger any work of others by cutting, excavating, or otherwise altering such work; provided, however, that Design-Build Entity may cut or alter others’ work with the written consent of City’s Representative and the others whose work will be affected.

D. If the proper execution or results of any part of Design-Build Entity’s Work depends upon work performed by Separate Contractors, Design-Build Entity shall inspect such other work and promptly report to City’s Representative in writing any delays, defects, or deficiencies in such other work that render it unavailable or unsuitable for the proper execution and results of Design-Build Entity’s Work. Design-Build Entity’s failure to so report will constitute an acceptance of such other work as fit and proper for integration with Design-Build Entity’s Work except for latent defects and deficiencies in such other work.

E. If any claims are made by Separate Contractors arising out of Design-Build Entity’s performance of the Work, Design-Build Entity shall be responsible to immediately resolve the dispute and indemnify City pursuant to the Contract Documents.

F. City’s Representative shall arrange meetings with Separate Contractors performing work to plan coordination of construction activities but will not be responsible to direct coordination efforts. Any difference or conflict arising between Design-Build Entity and any Separate Contractor shall be submitted to City’s Representative for a decision in the matter. Design-Build Entity shall comply with direction from City’s Representative whose decision on coordination matters will be final.

7.2 For Delays by Others.

A. By entering into this Contract, Design-Build Entity acknowledges that there may be Separate Contractors on the Project site whose work will be coordinated with that of Packet Pg. 83
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Design-Build Entity. Design-Build Entity expressly warrants and agrees that DesignBuild Entity will cooperate with Separate Contractors and will do nothing to delay, hinder, or interfere with the work of Separate Contractors, City, or City’s Representative. Design-Build Entity also expressly agrees that, in the event its Work is hindered, delayed, interfered with, or otherwise affected by a Separate Contractor, its sole remedy will be a direct action against the Separate Contractor. Design-Build Entity will have no remedy, and hereby expressly waives any remedy, against City or City’s Representative on account of delay, hindrance, interference, or other event caused by Separate Contractor.

7.3 Design-Build Entity’s Delay Or Damage.

A. Design-Build Entity shall be liable to City and any Separate Contractor for the direct delay and disruption costs or damages incurred by such Separate Contractor as a result of Design-Build Entity’s wrongful action or inactions.

ARTICLE 8 -SUBCONTRACTORS

8.1 Award of Subcontracts and Other Contracts for Portions of The Work.

A. All Subcontractors shall be retained in accordance with the Subletting and Subcontracting Fair Practices Act (Public Contract Code Section 4100 et seq.). The Design-Build Entity shall not, without the consent of City: substitute any person or entity as a Subcontractor in place of the Subcontractor designated in the Proposal; or permit any such Subcontractor to be assigned or transferred, or allow it to be performed by any person or entity other than the original Subcontractor listed in the Proposal. Any assignment or substitution made without the prior written consent of the awarding authority or not in compliance with the Subletting and Subcontracting Fair Practices Act shall be void, and the assignees shall acquire no rights in the Contract. Any consent, if given, shall not relieve the Design-Build Entity or its Subcontractors from their obligations under the terms of the Contract. All requests by the Design-Build Entity for substitution will be handled through City’s Representative.

B. The Design-Build Entity shall submit to City’s Representative after selecting Subcontractors pursuant to an open and competitive process, an updated expanded list of Subcontractors, along with their respective addresses, telephone numbers, email addresses and contractor’s license numbers. The expanded list of Subcontractors shall be provided and/or updated no later than ten (10) Days after the date which the Design-Build Entity awards a contract for any portion of the Work to a Subcontractor not originally listed in the Design-Build Entity’s Proposal.

C. City has the right to request all documentation that supports the Design-Build Entity’s selection of a Subcontractor. City shall have the right of final approval as to the qualifications of a Subcontractor to perform its designated scope of Work. Within City’s discretion, any Subcontractor may be deemed not qualified to perform Work on the Project if City or City’s Representative determines that the Subcontractor fails to meet the requirements of the Contract Documents, or for any other reason.

D. Any increase in the cost of the Work on the Project resulting from the replacement or substitution of a Subcontractor pursuant to this Article or as required by City or City’s Representative pursuant to this Article, shall be borne solely by the Design-Build Packet Pg. 84
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Entity. The Design-Build Entity shall not be entitled to any increase in Contract Price or an extension of Project Completion Date due to such replacement or substitution.

E. Any part of the Work on the Project performed for the Design-Build Entity by a Subcontractor shall be pursuant to a written subcontract. Each such subcontract shall require the Subcontractor, to the extent of the work to be performed by the Subcontractor, to be bound to the Design-Build Entity by the terms of the Contract Documents, to assume toward the Design-Build Entity all the obligations and responsibilities which the Design-Build Entity assumes towards the City by the Contract Documents, and to perform such portion of the work on the Project in accordance with the Contract Documents. Each such subcontract shall preserve and protect the rights of the City under the Contract Documents, with respect to the work to be performed by Subcontractor, so that subcontracting thereof will not prejudice such rights. The Design-Build Entity is responsible for reviewing and coordinating the Work of and among his Subcontractors and Design Professionals. This review and coordination includes, but is not limited to, resolution of any inconsistencies, errors or omissions.

8.2 Contingent Assignment of Subcontracts.

A. The Design-Build Entity hereby assigns to City all its interest in first tier subcontracts now or hereafter entered into by the Design-Build Entity for performance of any part of the Work on the Project. The assignment will be effective upon acceptance by City in writing and only as to those subcontracts which City designates in writing. City may accept said assignment at any time during the course of the Work on the Project and prior to Final Completion in the event of a suspension or termination of the DesignBuild Entity’s rights under the Contract Documents. Such assignment is part of the consideration to City for entering into the Contract with the Design-Build Entity and may not be withdrawn prior to Final Completion.

ARTICLE 9 -CHANGE IN CONTRACT PRICE; CHANGE IN CONTRACT TIMES

9.1 Contract Change Orders.

A. City, without invalidating the Contract, may order changes in the work consisting of additions, deletions or other revisions, and the Contract Price and/or Contract Time shall be adjusted accordingly. All such changes in the Work shall be authorized by written Change Order and shall be performed under the applicable conditions of the Contract Documents. A Change Order signed by the Design-Build Entity indicates the Design-Build Entity’s agreement therewith, including any adjustment in the Contract Price and/or Contract Time, and the full and final settlement of all costs (direct, indirect and overhead) related to the work authorized by the Change Order. No changes in the Work covered by this Contract shall exonerate any surety or any bond given in connection with this Contract. No dispute, disagreement or failure of the Parties to reach agreement on the terms of a Change Order shall relieve the Design-Build Entity from the obligation to proceed with performance of the changed work promptly and expeditiously. Whenever any change is made as provided for herein, such change shall be considered and treated as though originally included in the Contract Documents, and shall be subject to all terms, conditions and provisions of the original Contract Documents.

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B. Design-Build Entity shall promptly execute changes in the Work as directed in writing by City even when the parties have not reached agreement on whether the change increases the scope of Work or affects the Contract Price or Contract Time, if any. All claims for additional compensation to the Design-Build Entity shall be presented in writing. No claim will be considered after the work in question has been done unless a written Change Order has been issued or a timely written notice of claim has been made by Design-Build Entity. Design-Build Entity shall not be entitled to claim or bring suit for damages, whether for loss of profits or otherwise, on account of any decrease or omission of any item or portion of Work to be done.

9.2 Contract Change Order Procedures.

A. City Directive

1. The City may direct changes in the Work, including deletion of Work, by delivering a written work directive. To the extent the work directive results in a change to the Contract Price and/or Contract Time, Design-Build Entity must timely submit a Change Order Request and comply with all Change Order procedures in accordance with this Article. Notwithstanding issuance of a work directive, Design-Build Entity’s failure to timely submit a Change Order Request shall constitute a waiver by Design-Build Entity of any adjustment to the Contract Price and/or Contract Time for work performed under the directive.

The City shall not be liable to Design-Build Entity for work performed or omitted by Design-Build Entity in reliance on verbal orders.

2. The City shall have the right to order changes in the Work by a unilateral Change Order setting forth the City’s determination of the reasonable additions or savings in the Contract Price and/or Contract Time.

B. Design-Build Entity Change Order Requests

1. The Design-Build Entity agrees that one of the purposes of the Contract is to minimize the risk for Change Orders and reduce the likelihood of Change Orders. Change Order Requests shall be kept to a minimum.

2. The Design-Build Entity may request changes to the Contract Price and/or Contract Time for City directed changes in the Work or for Additional Work caused by the acts, errors, or omissions of the City, or caused by unforeseen conditions if, and only if, the Design-Build Entity follows the procedures specified in this Article. Work that should or could have been included as part of the Construction Documents or work resulting from ambiguities in the Construction Documents shall not be considered Additional Work and the City will not issue a Change Order for said work.

3. If Design-Build Entity intends to initiate a Change Order Request, then DesignBuild Entity shall provide the Agency with written notice of the underlying facts and circumstances that give rise to the proposed change. Design-Build Entity shall submit the notice of change/delay prior to performance of the work and no later than five (5) Days after the Agency’s work directive or Design-Build Entity discovers the circumstances causing the need for the Change Order. To be considered valid and complete, the notice of change/delay shall include a Packet Pg. 86
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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, Design-Build Entity shall submit the notice of change and notice of delay concurrently.

4. A Change Order Request will only be deemed timely submitted if it is submitted prior to incurring any expense and within fourteen (14) Days from Design-Build Entity’s notice of change/delay.

5. A Change Order Request must state that it is a Change Order Request, state and justify the reason for the request, and specify the amount of any requested adjustment to the Contract Price and/or Contract Time, if any. The Change Order Request shall include all of the following information (unless inapplicable to the change): A detailed description of the circumstances giving rise to the request; A complete itemized cost proposal, including itemized pricing for costs; Supporting documentation for all costs; A time impact analysis showing the impact of the delay to the critical path to completion; 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 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 DesignBuild Entity 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. Design-Build Entity shall provide the requested additional information within five (5) Days of the request.

6. If the City denies the Change Order Request or disagrees with the proposal submitted by Design-Build Entity, it will notify the Design-Build Entity, and the City will provide its opinion of the appropriate change to the Contract Price and/or Contract Time. If no agreement can be reached, the City shall have the right to order the work by a unilateral Change Order setting forth the City’s determination of the reasonable additions or savings in the Contract Price and/or Contract Time, if any. The City’s determination shall become final and binding if the Design-Build Entity fails to submit a Claim in writing to the City within fourteen (14) Days of the issuance of the unilateral Change Order, disputing the terms of the unilateral Change Order and providing such supporting documentation for its position as the City may reasonably require.

C. Change Order Format

1. 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.

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2. The City may designate the forms to be used for notices, Change Order Requests, and Change Orders. If so designated, Design-Build Entity may only use such forms. Design-Build Entity 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 Design-Build Entity may not change or modify the City’s Change Order form in an attempt to reserve additional rights.

9.3 Determining Adjustments to Compensation.

A. Limitation on Costs. Design-Build Entity shall not be entitled to any compensation for Work subject to a Change Order except as expressly set forth in this Article.

The mark-up added in instances of 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.

B. Lump Sum Change Orders. Whenever possible, any changes affecting compensation shall be in a lump sum mutually agreed by the Design-Build Entity and the City.

C. Time and Materials Change Orders. The City may direct the Design-Build Entity 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 Design-Build Entity exceeds at its own risk.

D. 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 Design-Build Entity, the Design-Build Entity'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.

E. 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

1. Labor. The costs of labor will be the actual cost for wages prevailing locally for each craft or type of worker at the time the Additional Work is done, plus employer payments of payroll taxes and insurance, health and welfare, pension, vacation, apprenticeship funds, and other direct costs resulting from federal, state or local laws, as well as assessment or benefits required by lawful collective bargaining agreements. The use of a labor classification which Packet Pg. 88
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would increase the Additional Work cost will not be permitted unless the Design-Build Entity 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.

2. 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.

3. 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 Design-Build Entity shall furnish cost data supporting the establishment of the rental rate. The rental rate to be applied for use of each items of equipment shall be the rate resulting in the least total cost to the City for the total period of use. The City shall the make the final determination as to an equitable rental rate for the equipment. No payment will be made for the use of small tools, which have a replacement value of $1,000 or less.
a. 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. b. 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.
c. Before construction equipment is used on any Additional Work, the DesignBuild Entity 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.
d. 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.

4. 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 Design-Build Entity and Subcontractors at cost only, without mark-up. Design-Build Entity 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 Design-Build Entity’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 Design-Build Entity 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 Design-Build Entity 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 twenty-five percent (25%) of the Net Cost as defined herein, of the party that performs the Work.
f. Calculation of the mark-up will be subject to the limitations above and to calculation as further detailed in (b)(B)(5) above.

5. Documentation of Time-and-Material Costs.
a. T&M Daily Sheets. Design-Build Entity 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 Design-Build Entity’s entitlement to the cost. b. T&M Summary Sheet. Design-Build Entity 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. Design-Build Entity’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. Design-Build Entity’s failure to submit the T&M Summary Sheet within five (5) Days of completion of the Additional Work will result in Design-Build Entity’s waiver for any reimbursement of any costs associated with the Additional Work.
c. 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 Design-Build Entity’s mark-up, shall not be allowed costs and shall not be included in any lump sum proposals or time-and-materials invoices:
d. Overhead Cost. Payroll costs and other compensation of Design-Build Entity’s officers, executives, principals, general managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, timekeepers, clerks, and other personnel employed by Design-Build Packet Pg. 90
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Entity whether at the Site or in Design-Build Entity’s principal office or any branch office, material yard, or shop for general administration of the Work; e. Office Expenses. Expenses of Design-Build Entity’s principal and branch offices;
f. Capital Expenses. Any part of Design-Build Entity’s capital expenses, including interest on Design-Build Entity’s capital employed for the Additional Work and charges against Design-Build Entity for delinquent payments; g. Negligence. Costs due to the negligence of Design-Build Entity 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;
h. Small Tools. Cost of small tools valued at less than $1,000 and that remain the property of Design-Build Entity;
i. Administrative Costs. Costs associated with the preparation of Change Orders (whether or not ultimately authorized), cost estimates, or the preparation or filing of Claims;
j. Anticipated Lost Profits. Expenses of Design-Build Entity associated with anticipated lost profits or lost revenues, lost income or earnings, lost interest on earnings, or unpaid retention;
k. 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;
l. Special Consultants and Attorneys. Costs of special consultants or attorneys, whether or not in the direct employ of Design-Build Entity, 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. m. 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.
n. Compliance with Federal Cost Principles. If the Project is federally funded, any costs that are not allowable, reasonable and allocable to the Project, under Packet Pg. 91
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generally accepted accounting principles and the applicable federal requirements.

9.4 Design-Build Entity’s Wavier of Further Relief.

A. DESIGN-BUILD ENTITY’S FAILURE TO PROVIDE A COMPLETE AND TIMELY

NOTICE OF A CHANGE ORDER REQUEST OR TO COMPLY WITH ANY OTHER REQUIREMENT OF THIS ARTICLE, SHALL CONSTITUTE A WAIVER BY DESIGNBUILD ENTITY OF THE RIGHT TO AN ADJUSTMENT OF THE CONTRACT PRICE

AND/OR PROJECT COMPLETION DATE 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.

B. Design-Build Entity 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 or job meeting minutes), that does not strictly comply with the formal requirements of this Article, shall accordingly be insufficient.

9.5 City Reservation of Rights.

A. By signing the Contract, the parties agree that City has the right to do any or all of the following, which are reasonable and within the contemplation of the parties:

1. To order changes in the Work, including without limitation: Changes to correct errors or omissions caused by City, if any, in the Contract Documents; Changes resulting from City’s decision to change the Work subsequent to execution of the Contract; and Changes due to unforeseen conditions.

2. To suspend Work on the Project or any part thereof.

3. To delay Work on the Project, including without limitation, delays resulting from the failure of City or City’s Representative to timely perform any Contract obligation and delays for City’s convenience.

ARTICLE 10 -TIME FOR COMPLETION; LIQUIDATED DAMAGES

10.1 Progress and Completion.

A. The Design-Build Entity shall proceed expeditiously with adequate forces and shall achieve full completion of the Work by the Project Completion Date. If City’s Representative determines and notifies the Design-Build Entity that the Design-Build Entity’s progress is such that the Design-Build Entity will not achieve full completion of the Work by the Project Completion Date, the Design-Build Entity shall immediately Packet Pg. 92
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and at no additional cost to City, take all measures necessary, including working such overtime, additional shifts, Sundays, or holidays as may be required to ensure that the entire Project is completed within the Project Completion Date. Upon receipt of such notice from City’s representative, the Design-Build Entity shall immediately notify City’s Representative of all measures to be taken to ensure full completion of the Work within the Project Completion Date. The Design-Build Entity shall reimburse City for any extra costs or expenses (including the reasonable value of any services provided by City’s employees) incurred by City as the result of such measures.

10.2 Time for Completion.

A. The time for completion set forth in Contract 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 Design-Build Entity in the time specified in the Contract Documents. The Agency is under no obligation to consider early completion of the Project; and the Project Completion Date shall not be amended by the Agency’s receipt or acceptance of the Design-Build Entity’s proposed earlier completion date. Any difference in time between the Design-Build Entity’s early completion and the Project Completion Date shall be considered a part of the Project float. Design-Build Entity shall not be entitled to compensation, and the Agency will not compensate Design-Build Entity, for delays which impact early completion. Design-Build Entity shall not, under any circumstances, receive additional compensation from the Agency (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 Design-Build Entity and the Project Completion Date.

10.3 Liquidated Damages.

A. If the Work is not completed as stated in the Contract Documents, it is understood that the City will suffer damage. In accordance with Government Code section 53069.85, being impractical and infeasible to determine the amount of actual damage, it is agreed that Design-Build Entity 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. Design-Build Entity and its surety shall be liable for any liquidated damages. Any money due or to become due the Design-Build Entity may be retained to cover liquidated damages.

10.4 Inclement Weather.

A. Design-Build Entity 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.

10.5 Extension of Time.

A. Design-Build Entity’s entitlement to an extension of the Contract Time is limited to a City-caused extension of the critical path, reduced by the Design-Build Entity’s concurrent delays, and established by a proper time impact analysis. Design-Build Entity shall not be charged liquidated damages because of any delays in completion Packet Pg. 93
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of the Work due to unforeseeable causes beyond the control and without the fault or negligence of Design-Build Entity (or its Subcontractors or Suppliers). The Agency 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. Design-Build Entity shall not be entitled to an adjustment in the Contract Times for delays within the control of Design-Build Entity. Delays attributable to and within the control of a Subcontractor or Supplier shall be deemed to be delays within the control of Design-Build Entity.

10.6 Force Majeure
A. If a delay to the critical path results from a Force Majeure Event, the Design-Build Entity 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 Design-Build Entity’s sole and exclusive remedy for such delays.

10.7 No Damages for Reasonable Delay.

A. The City’s liability to Design-Build Entity 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 Design-Build Entity 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.

10.8 Procedure for Time Extensions and Delay Damages.

A. Design-Build Entity shall not be entitled to any extension of time unless Design-Build Entity properly notices the delay and adjustment to compensation and requests a Change Order in accordance with the Contract Documents. Design-Build Entity’s failure to timely and fully comply with the Change Order procedures in the Contract Documents shall constitute a waiver of Design-Build Entity’s right to a time extension.

ARTICLE 11 -TEST AND INSPECTIONS; CORRECTION, REMOVAL, OR ACCEPTANCE OF DEFECTIVE WORK; NOTICE OF DEFECTS

11.1 Notice of Defective Work.

A. Prompt notice of all Defective Work of which City or City’s Representative has actual knowledge will be given to Design-Build Entity. Defective Work may be rejected, corrected, or accepted as provided in the Contract Documents.

11.2 Access to Work.

A. City, City’s Representative, their consultants and other representatives and personnel, independent testing laboratories, and governmental agencies with jurisdictional interests will have access to the Project site and the Work at reasonable times for their observation, inspection, and testing. Design-Build Entity shall provide them proper and safe conditions for such access and advise them of Design-Build Entity’s safety procedures and programs.

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11.3 Tests and Inspections.

A. Design-Build Entity shall give City’s Representative timely notice of readiness of the Work for all required inspections, tests, or approvals and shall cooperate with inspection and testing personnel to facilitate required inspections or tests.

B. Except as provided by the Contract Documents, 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.

C. If Applicable Laws of any public body having jurisdiction require any Work (or part thereof) specifically to be inspected, tested, or approved by an employee or other representative of such public body, Design-Build Entity shall assume full responsibility for arranging and obtaining such inspections, tests, or approvals, pay all costs in connection therewith, and furnish City’s Representative the required certificates of inspection or approval.

D. Design-Build Entity shall be responsible for arranging and obtaining and shall pay all costs in connection with any inspections, tests, or approvals required for City and City’s Representative’s acceptance of materials or equipment to be incorporated in the Work; or acceptance of materials, mix designs, or equipment submitted for approval prior to Design-Build Entity’s purchase thereof for incorporation in the Work. Such inspections, tests, or approvals shall be performed by organizations acceptable to City.

E. City will provide inspection during normal working hours from 7:00 a.m. to 3:30 p.m.

Monday through Friday. Inspection before or after this time will be charged to the contractor as reimbursable inspection time. Inspections on weekends requires two days’ notice for review and approval. Upon written request and approval the 8.5 hour working day may be changed to other limits subject to City ordinance.

11.4 Uncovering Work.

A. If any Work (or the work of others) that is to be inspected, tested, or approved is covered by Design-Build Entity without written concurrence of City’s Representative, Design-Build Entity shall, if requested by City’s Representative, uncover such Work for observation.

B. Uncovering Work shall be at Design-Build Entity’s expense unless Design-Build Entity has given City’s Representative timely notice of Design-Build Entity’s intention to cover the same and City’s Representative has not acted with reasonable promptness in response to such notice.

C. If Design-Build Entity has given City’s Representative timely notice of Design-Build Entity’s intention to cover the work and City’s Representative has not acted with reasonable promptness in response to such notice, and City’s Representative later considers it necessary or advisable that covered Work be observed by City’s Representative or inspected or tested by others, Design-Build Entity, at City’s Representative’s request, shall uncover, expose, or otherwise make available for observation, inspection, or testing as City’s Representative may require, that portion of the Work in question, furnishing all necessary labor, material, and equipment.

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1. If it is found that the uncovered Work is defective, Design-Build Entity 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) arising out of or relating to such uncovering, exposure, observation, inspection, and testing, and of satisfactory replacement or reconstruction (including but not limited to all costs of repair or replacement of work of others); and City shall be entitled to an appropriate decrease in the Contract Price.

2. If the uncovered Work is not found to be defective, Design-Build Entity shall be allowed an increase in the Contract Price and/or an extension of the Contract Times, directly attributable to such uncovering, exposure, observation, inspection, testing, replacement, and reconstruction.

11.5 City May Stop The Work.

A. If the Work is defective, City may in its sole discretion order Design-Build Entity to stop the Work, or any portion thereof, until the cause for such order has been eliminated.

All delays associated with the stop Work order will be the responsibility of the DesignBuild Entity.

11.6 Correction of Defective Work.

A. Promptly after receipt of written notice, the Design-Build Entity shall (1) correct Defective Work that becomes apparent during the progress of the Work on the Project and (2) replace, repair, or restore to City’s satisfaction any other parts of the Work on the Project and any other real or personal property which is damaged or destroyed as a result of Defective Work or the correction of Defective Work. The Design-Build Entity shall promptly commence such correction, replacement, repair, or restoration upon notice from City’s Representative or City, but in no case later than fourteen (14) Days after receipt of such notice; and the Design-Build Entity shall diligently and continuously prosecute such correction to completion. The Design-Build Entity shall bear all costs of such correction, replacement, repair, or restoration, and all losses resulting from such Defective Work, including additional testing, inspection, and compensation for City’s Representative’s services and expenses. The Design-Build Entity shall perform corrective Work on the Project at such times that are acceptable to City and in such a manner as to avoid, to the extent practicable, disruption to City’s activities. When correcting Defective, Design-Build Entity shall take no action that would void or otherwise impair City’s special warranty and guarantee, if any, on said Work.

B. If immediate correction of Defective Work is required for life safety or the protection of property and is performed by City or Separate Contractors, the Design-Build Entity shall pay to City all reasonable costs of correcting such Defective Work. The DesignBuild Entity shall replace, repair, or restore to City’s satisfaction any other parts of the Construction Work and any other real or personal property which is damaged or destroyed as a result of such Defective Work or the correction of such Defective Work.

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C. The Design-Build Entity shall remove from the Project site portions of the Construction Work and materials which are not in accordance with the Contract Documents and which are neither corrected by the Design-Build Entity nor accepted by City.

D. Enforcement of the Design-Build Entity’s express warranties and guarantees to repair contained in the Contract Documents shall be in addition to and not in limitation of any other rights or remedies City may have under the Contract Documents or at law or in equity for Defective Work. Nothing contained in this Article shall be construed to establish a period of limitation with respect to other obligations of the Design-Build Entity under the Contract Documents.

11.7 Acceptance of Defective Work.

A. If, instead of requiring correction or removal and replacement of Defective Work, City prefers to accept it, City may do so. Design-Build Entity 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 City’s evaluation of and determination to accept such Defective Work and for the diminished value of the Work.

B. 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 City shall be entitled to an appropriate decrease in the Contract Price, reflecting the diminished value of Work and all costs incurred by City.

C. If the Project retention is held in an escrow account as permitted by the Contract Documents, Design-Build Entity will promptly alert the escrow holder, in writing, of the amount of retention to be paid to City.

D. If the acceptance of defective Work occurs after release of the Project retention, an appropriate amount will be paid by Design-Build Entity to City.

11.8 City May Correct Defective Work.

A. If Design-Build Entity fails within a reasonable time after written notice from City’s Representative to correct Defective Work, or to remove and replace rejected Work as required by City, or if Design-Build Entity fails to perform the Work in accordance with the Contract Documents, or if Design-Build Entity fails to comply with any other provision of the Contract Documents, City may, after seven (7) Days written notice to Design-Build Entity, correct, or remedy any such deficiency.

B. In connection with such corrective or remedial action, City may exclude Design-Build Entity from all or part of the Site, take possession of all or part of the Work and suspend Design-Build Entity’s services related thereto, take possession of Design-Build Entity’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 City has paid Design-Build Entity but which are stored elsewhere. Design-Build Entity shall allow City and City’s Representative, and the agents, employees, other contractors, and consultants of each of them, access to the Site to enable City to exercise the rights and remedies to correct the defective work.

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C. 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 City correcting the defective work will be charged against Design-Build Entity, and a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and 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.

D. If the Change Order is executed after all payments under the Contract have been paid by City and the Project Retention is held in an escrow account as permitted by the Contract Documents, Design-Build Entity will promptly alert the escrow holder, in writing, of the amount of Retention to be paid to City.

E. If the Change Order is executed after release of the Project Retention, an appropriate amount will be paid by Design-Build Entity to City.

F. Design-Build Entity shall not be allowed an extension of the Contract Times because of any delay in the performance of the Work attributable to City correcting defective work.

ARTICLE 12 -PAYMENTS TO DESIGN-BUILD ENTITY AND COMPLETION

12.1 Schedule of Values.

A. The Design-Build Entity shall submit a schedule of values to the City before the first Application for Payment, allocating the entire Contract Price to the various portions of the Work. The schedule of values shall be prepared in the form, and supported by the data to substantiate its accuracy, required by the City. This schedule, unless objected to by the City, shall be used as a basis for reviewing the Design-Build Entity’s Applications for Payment. Any changes to the schedule of values shall be submitted to the City and supported by such data to substantiate its accuracy as the City may require, and unless objected to by the City, shall be used as a basis for reviewing the Design-Build Entity’s subsequent Applications for Payment.

12.2 Applications for Payments.

A. By the twenty-fifth (25th) day of each month Design-Build Entity shall submit to City’s Representative for review an Application for Payment filled out and signed by DesignBuild Entity covering the Work completed as of the date of the Application for Payment and accompanied by such supporting documentation as is required by the Contract Documents. If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at the Site or at another location agreed to in writing, the Application for Payment shall also be accompanied by a bill of sale, invoice, or other documentation warranting that City has received the materials and equipment free and clear of all Liens and evidence that the materials and equipment are covered by appropriate property insurance or other arrangements to protect City’s interest therein, all of which must be satisfactory to City.

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B. Beginning with the second Application for Payment, each Application shall include an affidavit executed by the Design-Build Entity stating that it has paid all amounts due on account of the Work paid by City in the prior Applications for Payment.

12.3 Review of Applications.

A. City’s Representative will either indicate in writing a recommendation of payment to City or return the Application for Payment to Design-Build Entity indicating in writing City’s Representative’s reasons for refusing to recommend payment. In the latter case, Design-Build Entity may make the necessary corrections and resubmit the Application for Payment.

B. In taking action on the Design-Build Entity’s Applications for Payment, the City shall be entitled to rely on the accuracy and completeness of the information furnished by the Design-Build Entity and shall not be deemed to represent that the City has made a detailed examination, audit or arithmetic verification of the documentation submitted in support of the Application for Payment or other supporting data; that the City has made exhaustive or continuous on-site inspections; or that the City has made examinations to ascertain how or for what purposes the Design-Build Entity has used amounts previously paid on account of the Contract. Such examinations, audits and verifications, if required by the City, will be performed by the City’s auditors acting in the sole interest of the City.

C. By recommending any such payment City’s Representative will not thereby be deemed to have represented that:

1. inspections made to check the quality or the quantity of the Work as it has been performed have been exhaustive, extended to every aspect of the Work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to City’s Representative in the Contract Documents; or

2. there may not be other matters or issues between the parties that might entitle Design-Build Entity to be paid additionally by City or entitle City to withhold payment to Design-Build Entity.

D. Neither City’s Representative’s review of Design-Build Entity’s Work for the purposes of recommending payments nor City’s Representative’s recommendation of any payment, including final payment, will impose responsibility on City’s Representative:

1. to supervise, direct, or control the Work;

2. for the means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto;

3. for Design-Build Entity’s failure to comply with Applicable Laws applicable to Design-Build Entity’s performance of the Work;

4. to make any examination to ascertain how or for what purposes Design-Build Entity has used the moneys paid on account of the Contract Price; or Packet Pg. 99
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5. to determine that title to any of the Work, materials, or equipment has passed to City free and clear of any Liens.

E. City’s Representative may refuse to recommend the whole or any part of any payment due to subsequently discovered evidence or the results of subsequent inspections or tests. City retains the right to revise or revoke any such payment recommendation previously made, to such extent as may be necessary in City’s opinion to protect City from loss.

12.4 Payment Becomes Due.

A. Thirty (30) Days after presentation of an undisputed and properly submitted Application for Payment to City’s Representative, and subject to City’s Representative’s recommendation, subject to the modifications above, the amount recommended will become due, and when due will be paid by City to Design-Build Entity.

12.5 Retention and Securities in Lieu of Retention.

A. Unless Project has been deemed substantially complex as noted in the Contract Documents, City will retain five percent (5%) of the amount invoiced in accordance with Applicable Laws.

B. Pursuant to Public Contract Code section 22300, Design-Build Entity may substitute securities for any moneys withheld as a retention by City to ensure performance under the Contract. At the request and expense of Design-Build Entity, securities equivalent to the amount withheld shall be deposited with City, or with a state or federally chartered bank in this state as the escrow agent, who shall then pay those moneys to Design-Build Entity. Upon satisfactory completion of the Contract, the securities shall be returned to Design-Build Entity.

1. Alternatively, Design-Build Entity may request, and City shall make payment of retentions earned directly to the escrow agent selected by the Design-Build Entity. At the expense of Design-Build Entity, Design-Build Entity may direct the investment of the payments into securities and Design-Build Entity shall receive the interest earned on the investments upon the same terms provided for in Public Contract Code section 22300 for securities deposited by DesignBuild Entity. Upon satisfactory completion of the Contract, Design-Build Entity shall receive from the escrow agent all securities, interest, and payments received by the escrow agent when City authorizes the escrow agent to release these funds to the Design-Build Entity, pursuant to the terms of Public Contract Code section 22300.

C. Securities eligible for investment shall include those listed in Government Code section 16430, bank or savings and loan certificates of deposit, interest-bearing demand deposit accounts, standby letters of credit, or any other security mutually agreed to by Design-Build Entity and City.

D. Design-Build Entity shall be the beneficial City of any securities substituted for moneys withheld and shall receive any interest thereon.

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E. The escrow agreement shall be in the form of the Escrow Agreement provided as part of the Contract Documents.

12.6 City’s Reduction in Recommended Payment.

A. In addition to reductions recommended by City’s Representative, City may refuse to make payment of the full amount recommended by City’s Representative because:

1. Claims have been made against City on account of Design-Build Entity’s performance or furnishing of the Work.

2. Stop Payment Notices or Liens have been filed in connection with the Work.

3. Defective Work not remedied.

4. Failure of Design-Build Entity to make proper payments to its subcontractors or suppliers.

5. Completion of the Contract if there exists a reasonable doubt that the Work can be completed for the unpaid Contract balance.

6. Damage to another contractor or third party.

7. Amounts which may be due the City for claims against Design-Build Entity.

8. Failure of Design-Build Entity to keep the record (‘as-built”) drawings up to date.

9. Failure to provide updates on the construction schedule.

10. Site cleanup.

11. Failure of the Design-Build Entity to comply with requirements of the Contract Documents.

12. Liquidated Damages.

B. Upon completion of the Contract, City will reduce the final Contract Price to reflect costs charged to the Design-Build Entity, back charges or payments withheld pursuant to the Contract Documents.

12.7 Design-Build Entity’s Warranty of Title.

A. Design-Build Entity warrants and guarantees that title to all Work, materials, and equipment covered by any Application for Payment, whether incorporated in the Project or not, will pass to City no later than the time of payment free and clear of all Liens.

12.8 Partial Utilization.

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A. 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 Design-Build Entity of its responsibilities under the Contract.

12.9 Final Inspection.

A. Upon written notice from Design-Build Entity that the entire Work is complete, City’s Representative will promptly make a final inspection with City and Design-Build Entity and will notify Design-Build Entity in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. Design-Build Entity shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies.

12.10 Final Acceptance.

A. After Design-Build Entity has, in the opinion of City’s Representative, 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, marked-up record documents, and other documents required by the Contract Documents, City shall execute and file with the County in which the Project is located a Notice of Completion, constituting final acceptance and completion of the Project, except as may be expressly noted.

12.11 Final Payment.

A. Application for Payment.

1. Upon execution of the Notice of Completion, Design-Build Entity may submit a final accounting for the cost of the Work and a final Application for Payment. Final payment, constituting the entire unpaid balance of the Contract Price.

2. Prior to Final Payment, the City may conduct an audit of the Work or notify the Design-Build Entity that it will not conduct an audit and issue a final Certificate for Payment. If the City conducts an audit of the Work, the City will either issue to the Design-Build Entity a final Certificate for Payment, or notify the Design-Build Entity in writing of the City’s reasons for withholding a certificate. If the City’s auditors report the cost of the Work as substantiated by the Design-Build Entity’s final accounting to be less than claimed by the Design-Build Entity, the Design-Build Entity shall be entitled to make a claim. Pending a final resolution of the disputed amount, the City shall pay the Design-Build Entity the amount certified in the City’s final Certificate for Payment.

3. The final Application for Payment shall be accompanied (except as previously delivered) by:
a. all documentation called for in the Contract Documents, including but not limited to the evidence of insurance;
b. consent of the surety to final payment;
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c. a fully completed Conditional Waiver and Release on Final Payment.

B. City’s Representative’s Review of Application and Acceptance.

1. If, on the basis of City’s Representative’s observation of the Work during construction and final inspection, and City’s Representative’s review of the final Application for Payment and accompanying documentation as required by the Contract Documents, City’s Representative is satisfied that the Work has been completed and Design-Build Entity has satisfied all other requirements for final payment, City’s Representative will indicate in writing City’s Representative’s recommendation of payment and present the Application for Payment to City for payment. Otherwise, City’s Representative will return the Application for Payment to Design-Build Entity, indicating in writing the reasons for refusing to recommend final payment, in which case Design-Build Entity shall make the necessary corrections and resubmit the Application for Payment.

C. Payment Becomes Due.

1. Within sixty (60) Days after the presentation to City’s Representative of the proper and complete final Application for Payment and accompanying documentation, the amount recommended by City’s Representative, less any sum City is entitled to set off pursuant to the Contract Documents, will become due and will be paid by City to Design-Build Entity.

12.12 Waiver of Claims.

A. The making and acceptance of final payment will constitute a waiver of all Claims by Design-Build Entity against City other than those previously made in accordance with the requirements herein and expressly acknowledged by City in writing as still unsettled.

ARTICLE 13 -SUSPENSION OF WORK AND COMPLETION

13.1 City May Suspend Work.

A. City may, at its sole option, decide to suspend at any time the performance of all or any portion of the Work by notice in writing to Design-Build Entity. 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. Design-Build Entity shall use its best efforts to utilize its plant, labor, and equipment in such a manner as to minimize costs associated with suspension.

B. Upon receipt of any such notice, Design-Build Entity 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; Packet Pg. 103
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3. Promptly make every reasonable effort to obtain suspension upon terms satisfactory to City’s Representative 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.

C. Except as provided by this article, as full and complete compensation for such suspension, Design-Build Entity shall be granted an adjustment in the Contract Price based on a negotiated daily rate that reflects the Design-Build Entity’s actual costs associated with the demobilized condition of the Site (and as a result will be less than the Daily Rate contained in the Special Conditions) and an extension of the Contract Times equal to the number of days performance of Work is suspended; provided, however, that no adjustment of Contract Price or extension of Contract Times shall be granted if the suspension results from Design-Build Entity's non-compliance with the requirements of the Contract.

13.2 City May Terminate for Cause.

A. City may, without prejudice to any other right or remedy, serve written notice upon Design-Build Entity of its intention to terminate this Contract in whole or in part if the Design-Build Entity: (i) refuses or fails to prosecute the Work or any part thereof with such diligence as will ensure its completion within the Project Completion Date; (ii) fails to complete the Work within the required time; (iii) files a bankruptcy petition or is adjudged a bankruptcy; (iv) makes a general assignment for the benefit of its creditors; (v) has a receiver appointed; (vi) refuses or fails to supply enough properly skilled workers or proper materials to complete the Work; (vii) fails to make prompt payment to subcontractors or for material or labor; (viii) disregards Applicable Laws, other requirements or instructions of City; or (ix) violates any of the provisions of the Contract Documents.

B. The Notice of Default and Intent to Terminate shall state the reasons for termination.

Unless within five (5) Days after the service of such notice, Design-Build Entity resolves the circumstances giving rise to the Notice of Default to City’s satisfaction, or makes arrangements acceptable to City for the required corrective action, City may terminate this Contract. In such case, Design-Build Entity shall not be entitled to receive any further payment until the Work has been finished. City may take over and complete the Work by any method it may deem appropriate, including enforcement of the Project Performance Bond. Design-Build Entity and its surety shall be liable to City for any excess costs or other damages incurred by City to complete the Work. If City takes over the Work, 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 Design-Build Entity as may be on the Site.

13.3 City May Terminate for Convenience.

A. In addition to its right to terminate this Contract for default, City may terminate the Contract, in whole or in part, at any time upon seven (7) Days written notice to DesignBuild Entity. The Notice of Termination shall specify that the termination is for the Packet Pg. 104
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convenience of City, the extent of termination, and the effective date of such termination (“Effective Date of Termination”).

B. After receipt of Notice of Termination, and except as directed by City, the Design-Build Entity shall, regardless of any delay in determining or adjusting any amounts due under this Termination for Convenience clause, immediately proceed with the 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 Site and any other property upon which the Design-Build Entity was working in a safe and sanitary manner such that it does not pose any threat to the public health or safety.

4. Terminate all subcontracts and purchase orders to the extent that they relate to the portions of the Work terminated.

5. Place no further subcontracts or orders, except as necessary to complete the remaining portion of the Work.

6. Submit to City, within fifteen (15) Days from the Notice of Termination, all of the documentation called for by the Contract Documents to substantiate all costs incurred by the Design-Build Entity for labor, materials and equipment through the Notice of Termination. Any documentation substantiating costs incurred by the Design-Build Entity solely as a result of City's exercise of its right to terminate this Contract pursuant to this clause, which costs the DesignBuild Entity is authorized under the Contract Documents to incur, shall: (i) be submitted to and received by City no later than thirty (30) Days after the Effective Date of the Notice of Termination; (ii) describe the costs incurred with particularity; and (iii) be conspicuously identified as "Termination Costs Occasioned by City's Termination for Convenience."
C. City’s total liability to Design-Build Entity by reason of the termination shall be limited to the total (without duplication of any items) of:

1. The reasonable cost to the Design-Build Entity for all Work performed prior to the Effective Date of Termination, including the Work done to secure the Project for termination. Reasonable cost may not exceed the applicable percentage completion values derived from the progress schedule and the schedule of values. Deductions shall be made for cost of materials to be retained by the Design-Build Entity, cost of Work defectively performed, amounts realized by sale of materials, and for other appropriate credits or offsets against cost of Work as allowed by the Contract Documents.

2. When, in City’s opinion, the cost of any item of Work is excessively high due to costs incurred to remedy or replace defective or rejected Work, reasonable cost to be allowed will be the estimated reasonable cost of performing the Work Packet Pg. 105
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in compliance with requirements of the Contract Documents and excessive actual cost shall be disallowed.

3. Any Work required by the Termination for Convenience that is not included in Contract Documents will be negotiated pursuant to the Contract Change Order provisions.

4. Reasonable costs to the Design-Build Entity of handling material returned to vendors, delivered to City or otherwise disposed of as directed by City.

5. A reasonable allowance for the Design-Build Entity’s internal administrative costs in preparing termination claim.

6. Reasonable demobilization costs, and reasonable payments made to Subcontractors or suppliers on account of termination.

D. In no event shall City be liable for unreasonable costs incurred by the Design-Build Entity or subcontractors after receipt of a Notice of Termination. Such nonrecoverable costs include, but are not limited to, the cost of or anticipated profits on Work not performed as of the date of termination, post-termination employee salaries, unreasonable post-termination administrative expenses, post-termination overhead or unabsorbed overhead, surety costs of any type, costs of preparing and submitting the Design-Build Entity’s termination claim, attorney fees of any type, and all other costs relating to prosecution of a claim or lawsuit.

E. City shall have no obligation to pay the Design-Build Entity under this Article unless and until the Design-Build Entity provides City with updated and acceptable asbuilts and Record Documents for Work completed prior to termination as required by the Contract Documents.

F. In arriving at the amount due the Design-Build Entity under this clause there shall be deducted in whole, or in the appropriate part(s) if the termination is partial:

1. All unliquidated advances or other payments on account previously made to the Design-Build Entity, including without limitation all payments which are applicable to the terminated portion of the Contract Documents,

2. Any claim City may have against the Design-Build Entity in connection with the Work or any amounts that may be withheld in accordance with the Contract Documents, and

3. The agreed price for, or proceeds of sale of, any materials, supplies, or other things kept by the Design-Build Entity and not otherwise recovered by or credited to City.

G. Design-Build Entity shall not be paid on account of loss of anticipated profits or revenue or other economic loss or consequential damages arising out of or resulting from such termination.

H. Notwithstanding any other provision of this Article, when immediate action is necessary to protect life and safety or to reduce significant exposure or liability, Packet Pg. 106
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City may immediately order Design-Build Entity to cease Work until such safety or liability issues are addressed to the satisfaction of City or the Contract is terminated.

I. If City terminates Design-Build Entity 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, DesignBuild Entity shall be entitled to receive only the amounts payable under this section, and Design-Build Entity specifically waives any claim for any other amounts or damages, including, but not limited to, any claim for consequential damages or lost profits.

ARTICLE 14 -CLAIMS, DISPUTE AVOIDANCE AND RESOLUTION

14.1 Procedure for Resolving Claims
A. Design-Build Entity shall timely comply with any and all requirement of the Contract Documents pertaining to notices and requests for changes to the Contract Price and/or the Project Completion Date, including but not limited to all requirements of Article 9 and Article 14.1, 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 submit a Chang Order Request, 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.

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 DesignBuild Entity for (1) a time extension, including without limitation relief from damages or penalties for delay assessed by City, (2) payment of money or damages arising from Work done by or on behalf of the Design-Build Entity and payment of which is not otherwise expressly provided for or the Design-Build Entity is not otherwise entitled, or (3) payment of an amount which is disputed by City. A “Claim” does not include any demand for payment for which the Design-Build Entity has failed to provide notice, submit a Change Order Request, 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 Design-Build Entity completes any and all requirements of the Contract Documents pertaining to notices and requests for changes to the Contract Price and/or the Project Completion Date, and Design-Build Entity’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) Packet Pg. 107
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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 Design-Build Entity will submit the claim justification 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 the Claim
a. Specifications
b. Drawings
c. Clarifications (Requests for Information)
d. Schedules
e. Other

3. Chronology of events and correspondence

4. Narrative analysis of Claim merit

5. Analysis of Claim cost, including calculations and supporting documents

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

7. Cover letter and certification of validity of the Claim F. City Response to Claim. Upon receipt of a Claim pursuant to this Article, City shall conduct a reasonable review of the Claim and, within a period not to exceed 45 days of receipt of the Claim, or as extended by mutual agreement, shall provide 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 City issues its written response.

1. If City needs approval from its governing body to provide Design-Build Entity a written statement as set forth above, and the governing body does not meet within the 45 days or within the mutually agreed to extension of time following Packet Pg. 108
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receipt of a Claim, City shall have up to three (3) days following the next publicly noticed meeting of the governing body after the 45-day period, or extension, expires to provide Design-Build Entity a written statement identifying the disputed portion and the undisputed portion of the Claim.

2. City may request, in writing, within 30 days of receipt of the claim, any additional documentation supporting the Claim or relating to defenses or Claims City may have. If additional information is needed thereafter, it shall be provided upon mutual agreement of the City and the Design-Build Entity. City’s written response shall be submitted 30 days (15 days if the Claim is less than $50,000) after receiving the additional documentation, or within the same period of time taken by the Design-Build Entity to produce the additional information, whichever is greater.

G. Meet and Confer Conference. If the Design-Build Entity disputes City’s response, or if City fails to respond within the statutory time period(s), the Design-Build Entity may so notify City, in writing, within 15 days of the receipt of the response or the failure to respond, and demand an informal conference to meet and confer for settlement of those portions of the Claim that remain in dispute. Upon such demand, City shall schedule a meet and confer conference within 30 Days.

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 Design-Build Entity 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 Design-Build Entity in writing, shall be submitted to nonbinding mediation, with the City and the Design-Build Entity sharing the associated costs equally. The public entity and Design-Build Entity 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 Design-Build Entity 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.

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4. The mediation shall be held no earlier than the date the Design-Build Entity completes the Work or the date that the Design-Build Entity 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 Design-Build Entity must file a Claim pursuant to Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code prior to initiating litigation. For purposes of those provisions, the running of the period of time within which a Claim must be filed shall be tolled from the time the Design-Build Entity 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 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 (commending with Section 900) and Chapter 2 Packet Pg. 110
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(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 Design-Build Entity 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 Design-Build Entity. If Design-Build Entity does not comply with the Government Code claim procedure or the prerequisite contractual requirements, Design-Build Entity 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 Design-Build Entity last performs Work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved Claims known to Design-Build Entity or that should reasonably by known to Design-Build Entity excepting only new unrelated Claims that arise after the Government Code claim is submitted.

L. Non-Waiver. The City’s failure to respond to a Claim from the Design-Build Entity 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.

14.2 Litigation.

A. Any claims, disputes, or controversies between the parties arising out of or related to the Contract, which have not been resolved in accordance with the procedures set forth herein shall be resolved in a court of competent jurisdiction.

14.3 Duty to Continue Performance.

A. Unless provided to the contrary in the Contract Documents, Design-Build Entity shall continue to perform the Work and City shall continue to satisfy its payment obligations to Design-Build Entity, pending the final resolution of any dispute or disagreement between Design-Build Entity and City.

ARTICLE 15 -MISCELLANEOUS PROVISIONS

15.1 Limitations On City’s Responsibilities.

A. City shall not supervise, direct, or have control or authority over, nor be responsible for, the Design-Build Entity’s means, methods, techniques, sequences, or procedures Packet Pg. 111
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of design or construction, or the safety precautions and programs incident thereto, or for any failure of the Design-Build Entity to comply with Applicable Laws applicable to the performance of the Work. City will not be responsible for the Design-Build Entity’s failure to perform the Project in accordance with the Contract Documents.

15.2 Successors
A. The parties do for themselves, their heirs, executors, administrators, successors, and assigns agree to the full performance of all of the provisions contained in this Contract.

The Design-Build Entity may not either voluntarily or by action of law, assign any obligation assumed by the Design-Build Entity hereunder without the prior written consent of the City.

15.3 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.

15.4 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 Project or termination or completion of the Contract or termination of the services of the Design-Build Entity.

15.5 Controlling Law.

A. Notwithstanding any subcontract or other contract with any Subcontractor, Supplier, or other person or organization performing any part of the Project, this Contract shall be governed by the law of the State of California excluding any choice of law provisions.

15.6 Jurisdiction; Venue.

A. The Design-Build Entity and any Subcontractor, supplier, or other person or organization performing any part of the Project agree that any action or suits at law or in equity arising out of or related to the proposal process, award, or performance of the Project shall be maintained in the Superior Court of San Bernardino County, California, and expressly consent to the jurisdiction of said court, regardless of residence or domicile, and agree that said court shall be a proper venue for any such action.

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15.7 Headings.

A. Article and paragraph headings are inserted for convenience only and do not constitute parts of these General Conditions.

15.8 City’s Right to Audit.

A. The Design-Build Entity shall make available to City for auditing, all relevant accounting records and documents, and other financial data, and upon request, shall submit true copies of requested records to City. If the Design-Build Entity submits a Change Order Request or a Claim to City, City shall have the right to audit the DesignBuild Entity’s books, records, documents, and other evidence to the extent they are relevant.

B. The right to audit shall include the right to examine books, records, documents, and other evidence and accounting procedures and practices, sufficient to discover and verify all direct and indirect costs of whatever nature claimed to have been incurred or anticipated to be incurred and for which the claim has been submitted, including but not limited to job cost reports, estimates, proposals, bids, proposal papers, documents of other work administered by the Design-Build Entity’s home office, and any and all other documentation relied upon by the Design-Build Entity to obtain this Contract.

City shall have the right to make and take copies of any records examined.

C. The right to audit shall include the right to inspect the Design-Build Entity’s plans, or such parts thereof, as may be or have been engaged in the performance of the Project.

The Design-Build Entity further agrees that the right to audit encompasses all subcontracts and is binding upon Subcontractors. The right to audit provided herein shall be exercisable through such representatives as City deems desirable during the Design-Build Entity’s normal business hours at the Design-Build Entity’s office.

D. In accordance with Government Code Section 8546.7, records of both City and the Design-Build Entity shall be subject to examination and audit by the State Auditor General for a period of three (3) years after final payment. The Design-Build Entity shall make available to City any of the Design-Build Entity’s other documents related to the Project immediately upon request of City. In addition to the State Auditor’s rights described above, City shall have the right to examine and audit all books, estimates, records, contracts, documents, Proposals, subcontracts, and other data of the DesignBuild Entity (including electronic records, computations and projections) related to negotiating, pricing, or performing the Project in order to evaluate the accuracy and completeness of the cost or pricing data, for a period of four (4) years after final payment.

15.9 Assignment.

A. Design-Build Entity shall not assign, transfer, convey, sublet, or otherwise dispose of this Contract or any part thereof including any claims, without prior written consent of City. Any assignment without the written consent of 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 Packet Pg. 113
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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.

B. As set forth in Public Contract Code section 7103.5, in entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the contractor or subcontractor offers and agrees to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2 (commencing with Section 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. This assignment shall be made and become effective at the time the awarding body tenders final payment to the contractor, without further acknowledgment by the parties.

15.10 All Legal Provisions Included.

A. Design-Build Entity shall give all notices and comply with all federal, state and local laws, ordinances, rules and regulations bearing on conduct of work as indicated and specified by their terms. References to specific laws, rules or regulations in this Contract are for reference purposes only, and shall not limit or affect the applicability of provisions not specifically mentioned. If Design-Build Entity 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 Design-Build Entity 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. Design-Build Entity 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. Design-Build Entity shall comply with the Historic Building Code, including, but not limited to, as it relates to the ADA, whenever applicable..

C. Design-Build Entity 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 the Contract Price or Contract Packet Pg. 114
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Time, so as to strictly comply with the Applicable Laws and without prejudice to the rights of either party hereunder.

15.11 State License Board Notice.

A. Contractors are required by law to be licensed and regulated by the Design-Build Entity’s 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, the Contractors’ State License Board, P.O. Box 26000, Sacramento, California 95826.

15.12 Noise.

A. The Design-Build Entity shall use only such equipment on the Project 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.

B. The Design-Build Entity 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 Design-Build Entity shall promptly remove the equipment and shall not return that equipment to the Project site until the device is repaired or replaced. Noise and vibration level requirements shall apply to all equipment on the jobsite or related to the Project, including but not limited to, trucks, transit mixers or transit equipment that may or may not be owned by the Design-Build Entity.

15.13 Change In Name Or Nature of Design-Build Entity’s Legal Entity.

A. Should a change be contemplated in the name or nature of the Design-Build Entity’s legal entity, the Design-Build Entity shall first notify City in order that proper steps may be taken to have the change reflected in the Contract Documents and all related documents. No change of the Design-Build Entity’s name or nature will affect City’s rights under the Contract Documents, including but not limited to the bonds and insurance.

15.14 Complete Contract.

A. The Contract Documents constitute the full and complete understanding of the parties and supersede any previous agreements or understandings, oral or written, with respect to the subject matter hereof. The Contract may be modified only by a written instrument signed by both parties or as otherwise provided in the Contract Documents.

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15.15 Notice of Third Party Claims.

A. Pursuant to Public Contract Code section 9201, City shall provide Design-Build Entity with timely notification of the receipt of any third-party claim relating to the Contract.

15.16 Severability of Provisions.

A. If any one or more of the provisions contained in the Contract Documents should be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

15.17 Correction of Errors and Omissions.

A. The Design-Build Entity agrees to correct any error or omission in the Construction Documents or Contract Documents at no additional cost to City.

15.18 Interpretation.

A. The Contract Documents shall not be construed in favor of or against any party, but shall be construed as if all parties prepared the Contract Documents.

15.19 Electronic Signature.

A. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature.

END OF GENERAL CONDITIONS
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ATTACHMENT 3

SPECIAL CONDITIONS
ARTICLE 1 -MODIFICATIONS TO THE GENERAL CONDITIONS
NONE
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ATTACHMENT 4

PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:

THAT WHEREAS, THE CITY OF SAN BERNARDINO (“City”) has awarded to ____________________, (“DBE”) an agreement for ________________________ (hereinafter referred to as the “Project”).

WHEREAS, the work to be performed by the DBE is more particularly set forth in the Contract Documents for the Project dated ________________, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the DBE 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 DBE 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 ___________________________ dollars, ($____________), 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 DBE, 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 officers and agents, 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 City in enforcing such obligation.

The obligations of Surety hereunder shall continue so long as any obligation of DBE remains. Nothing herein shall limit the City’s rights or the DBE or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.

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Whenever DBE 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:
(1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
(2) Obtain a Bid or Bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible Bidder, arrange for a Contract between such Bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the Contract price, including other costs and damages for which Surety may be liable. The term “balance of the Contract price” as used in this paragraph shall mean the total amount payable to DBE by the City under the Contract and any modification thereto, less any amount previously paid by the City to the DBE and any other set offs pursuant to the Contract Documents.
(3) 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 DBE by the City under the Contract and any modification thereto, less any amount previously paid by the City to the DBE 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 DBE.

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

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project.

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IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
___________________________________
Design-Build Entity
By: ________________________________
President
___________________________________
Surety
By:________________________________
Attorney-in-Fact
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)

THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety) ___________________________________________ ___________________________________________
___________________________________________
(Name and Address of Agent or ___________________________________________ Representative for service of
process in California, if different ___________________________________________ from above)
___________________________________________
(Telephone number of Surety and ___________________________________________ Agent or Representative for service
of process in California)
NOTE: A copy of the Power-of-Attorney to local representatives of the bonding company must be attached hereto.

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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
Individual

DESCRIPTION OF ATTACHED DOCUMENT
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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ATTACHMENT 5

PAYMENT BOND (LABOR AND MATERIALS)
KNOW ALL MEN BY THESE PRESENTS:

THAT WHEREAS, THE CITY OF SAN BERNARDINO (“City”), by action taken or a resolution passed ___________ , 20____ has awarded to ________________ , hereinafter designated as the “Principal,” a contract (“Contract”) for the work described as follows:
(“Project”); 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 ______________ dollars ($___________) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

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

It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or 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 Packet Pg. 122
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claimants otherwise entitled to recover under any such Contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of Contract between the owner or City and original DBE or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of Sections 2819 and 2845 of the California Civil Code.

IN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety above named, on the _____ day of ______________________ 20______ the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative pursuant to authority of its governing body. (Corporate Seal of Principal, if corporation) ___________________________________ Design-Build Entity
By: ________________________________
President
(Seal of Surety)
___________________________________
Surety
By:________________________________
Attorney-in-Fact
(Attached Attorney-In-Fact Certificate and Required Acknowledgements) NOTE: A copy of the Power-of-Attorney to local representatives of the bonding company must be attached hereto.

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

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

WITNESS my hand and official seal.

Signature of Notary Public

CAPACITY CLAIMED BY SIGNER
Individual

Signer is representing:

Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
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ATTACHMENT 6

HOURLY RATE SCHEDULE FOR EXTRA WORK
SEE ATTACHMENT 3
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A7-1
ATTACHMENT 7
WORKERS’ COMPENSATION CERTIFICATION
Labor Code section 3700 in relevant part provides:

Every employer except the State shall secure the payment of compensation in one or more of the following ways:
a. By being insured against liability to pay compensation by one or more insurers duly authorized to write compensation insurance in this state. b. By securing from the Director of Industrial Relations a certificate of consent to selfinsure, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self-insure and to pay any compensation that may become due to his employees.

I am aware of the provisions of section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of this Contract.

Date:

Name of Design-Build Entity:

Signature:

Print Name:

Title:
(In accordance with Article 5 - commencing at section 1860, chapter 1, part 7, division 2 of the Labor Code, the above certificate must be signed and filed with the awarding body prior to performing any Work under this Contract.)
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DISCUSSION
City of San Bernardino
Request for Council Action
Date: November 2, 2022
To: Honorable Mayor and City Council Members
From: Robert D. Field, City Manager;
Nathan Freeman, Agency Director of Community, Housing,
and Economic Development
Department: Community, Housing, & Economic Development (CED) Subject: Administrative Policy for the Sale of Real Property (All Wards)
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California, review and approve the proposed Administrative Policy for the Sale of Real Property as presented.

Background
The City of San Bernardino is a Charter City operating under a Council-Manager form of government. The City Charter is the document adopted by voters that defines the organization, powers, functions and essential procedures of the city government and the municipal code contains the local laws and regulations adopted by the Mayor and City Council that establish zoning and development standards, traffic regulations, administrative standards and the like.

In addition to the City Charter and Municipal Code, it is important for the City to implement policies and procedures that establish the controls needed to ensure that City employees and elected and appointed officials are able to operate under a clear set of guidelines that align with the laws and regulations that govern the City. On February 3, 2021, the Mayor and City Council provided support for the development of a comprehensive administrative policy manual. The Administrative Policy for the Sale or Real Property will provide direction for staff to manage the disposal of City-owned property that ensures compliance with the Surplus Land Act (Assembly Bill 1486).

Discussion
The City Manager, under the direction of the Mayor and City Council of San Bernardino, is responsible for the sale, acquisition, donation, lease, transfer, and any other Packet Pg. 181
disposition of all real property owned, operated, and managed by the City of San Bernardino. The Real Property Division operates under the Community and Economic Development Department and serves as the administrator of City-owned property.

From time to time, the City Manager may determine that City-owned real property, or any portion, right, title, or interest therein, is no longer needed or useful according to the purposes of the City or its people. The City Manager may petition the Mayor and City Council, via a staff report and resolution, to declare such property, or any right, title, and interest therein to be surplus or exempt surplus to the needs and uses of the City, and subsequently propose the sale, transfer, lease, donation, or other disposition of real property owned by the City to the Mayor and City Council for adoption.

Recognizing the rapidly evolving nature of State law, and specifically the Surplus Land Act (as recently modified by Assembly Bill 1486), the City shall consult the City Attorney’s Office in advance of petitioning the Mayor and City Council regarding the declaration of any property as surplus or exempt surplus land, to confirm the planned forms and process are current. As part of the continued effort to develop the City’s comprehensive administrative policy manual, staff is proposing the approval of the Administrative Policy for the Sale of Real Property.
2021-2025 Strategic Targets and Goals
Approval of administrative policies aligns with Key Target No. 3: Improved Quality of Life, specifically 3d, improve the City’s appearance, cleanliness, and attractiveness.

Fiscal Impact
There is no fiscal impact associated with the development and adoption of an administrative policy beyond dedicated staff time.

Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, review and approve the proposed Administrative Policy for the Sale of Real Property as presented.

Attachment
Attachment 1 Administrative Policy for the Sale of Real Property Ward:

All Wards
Synopsis of Previous Council Actions:

February 3, 2021 The Mayor and City Council provided support for the development of a comprehensive administrative policy
manual to ensure that City employees and elected and
appointed officials are operating under a clear set of
guidelines that govern the City.

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City of San Bernardino - Administrative Policy Manual
City of San Bernardino
Administrative Policy Manual
Subject: Sale of Real Property
Purpose: Sale of Surplus and Exempt Surplus City Property Authority: Resolution No. 2022-____
Scope: (Municipal Code 2.65 – Sale of Real Property)
The City Manager, under the direction of the Mayor and City Council of San Bernardino, is responsible for the sale, acquisition, donation, lease, transfer, and any other disposition of all real property owned, operated, and managed by the City of San Bernardino (City).

The Real Property Division operates under the Community and Economic Development Department and serves as the administrator of City-owned property. These properties include, and are not limited to, public facilities, vacant land, public rights-of-ways, easements, encroachments, leases, public parking lots, commercial buildings, industrial facilities, residential properties, exempt surplus land, and surplus land.

Citations within this Policy may be amended from time to time to reflect changes in State law or guidelines promulgated by the California Department of Housing and Community Development (HCD).

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Procedure for the Sale of City Owned Property
City of San Bernardino - Administrative Policy Manual
Policy:

Section 2.65.010 – Real Property Authority
a) In accordance with the Surplus Land Act (SLA), Government Code Section §54221(b)(1): City owned property that is no longer needed or useful for the uses and purposes of the City or its people must be declared surplus or exempt surplus land by the Mayor and City Council of San Bernardino, California, during a regular public meeting. For the purposes of satisfying this requirement under the SLA, a regular public meeting will consist of a Mayor and City Council meeting, which are conducted according to the published calendar by the City of San Bernardino and managed by the City Clerk’s office.
b) The City Manager, or his or her designee, will prepare and submit a Resolution to the Mayor and City Council for consideration and adoption during a Public Hearing. The Resolution will include the following: (1) description of the property being considered, (2) comments from City agencies or departments confirming the property is no longer needed and or useful to the City, and (3) indication of the fair market value of the property through the utilization of any one or more of the following sources, consistent with Municipal Code section 2.65.040, where applicable: Broker Price Offering (BPO), Comparative Market Analysis (CMA), Automated Valuation Model (AVM), Appraisal, or alternate market analysis as requested by the City Manager. c) The Mayor and City Council will declare the real property, or any right, title, and interest therein, to be surplus or exempt surplus according to the uses and needs of the City and its people. After the City has held the required public meeting to classify the property as surplus land (see section (viii) below for the alternative process for exempt surplus land), the Notice of Availability form (NOA) shall be sent to the required entities outlined within the SLA (as described in section i. herein), upon the direction of the City Manager, or his or her designee. Properties with lease terms of five (5) years or less (including any extensions, amendments or options), or if development or demolition will not occur, are exempt from the procedures outlined herein (HCD Surplus Land Act Guidelines §102(h)(1)). Properties may be declared and classified surplus or exempt surplus land by the Mayor and City Council and held for future consideration or disposition, to be determined by the needs of the City at the direction of the City Manager. The SLA does not establish guidelines for agencies that desire to retain declared surplus land for future disposition.

Declared Surplus Land:

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Procedure for the Sale of City Owned Property
City of San Bernardino - Administrative Policy Manual
i. Pursuant to §54222, the Notice of Availability (NOA) form is required to be submitted to the California Department of Housing and Community Development (HCD), applicable affordable housing developers (as determined by the HCD database), in addition to any local public entity as defined by Health and Safety Code 50079: “any county, city, city and county, the duly constituted governing body of an Indian reservation or rancheria, or tribally designated housing entity as defined in Section 4103 of Title 25 of the United States Code and Section 50104.6.5, redevelopment agency organized pursuant to Part 1 (commencing with Section 33000) of Division 24, or housing authority organized pursuant to Part 2 (commencing with Section 34200) of Division 24, and also includes any state agency, public district, or other political subdivision of the state, and any instrumentality thereof, that is authorized to engage in or assist in the development or operation of housing for persons and families of low or moderate income. ‘Local public entity’ also includes two or more local public entities acting jointly.” NOA forms are not permitted to be sent prior to the surplus declaration from the Mayor and City Council via the public hearing and accompanying resolution. NOA forms may be delivered via electronic mail or by certified mail only. Proof of mailing will be maintained and preserved by the Real Property Division and made accessible to HCD, or any requesting entity or agency, upon written request. The current NOA form, (NOASB.6.2022), is the only authorized form to be used, subject to any required changes necessitated by State law recommended by the City Attorney’s Office, or via promulgated HCD Guidelines. All responses to NOA forms received electronically will be directed to the Real Property email inbox:
[email protected]. Representatives from the Real Property Division will monitor any communications received and will issue responses accordingly. To maintain the integrity of the data generated in and out of this email account, the IT Administrator will have exclusive rights to delete items. ii. Notice of Availability – waiting period. The issuance and delivery of the NOA initiates a 60-day period whereas the City is prohibited from engaging in negotiations in the disposition of the declared surplus land. iii. Negotiation waiting period. All responses received, indicating a notice of interest during the 60-day waiting period, will initiate a 90-day good faith negotiation period with the responding party. The 90-day negotiation period cannot commence prior to the 61st day from the issuance date of the NOA, regardless of the date the notice of interest is received (HCD Surplus Land Act Guidelines § 202(a)(1)(b).) If multiple responses are received, the City may Packet Pg. 185
Procedure for the Sale of City Owned Property
City of San Bernardino - Administrative Policy Manual
negotiate concurrently with all responding parties. If multiple notices of interest to purchase or lease are received, the SLA regulates the order of priority as follows: highest priority is given to the party that proposes the greatest number of units to affordable low-and moderate- income households. If parties offer the same number of affordable units, priority is determined based on the proposal with the “deepest average level of affordability for the affordable units.” (Government Code §§ 54222.5, 54227(a).) All responses received are to be time and date stamped by the City. Entities not included in HCD’s database may also respond to the NOA.
iv. Negotiations. Under the terms set forth by the SLA, the City is under no obligation to sell or lease surplus land. The City may sell or lease the surplus land at fair market value or fair market rent or less than fair market value or less than fair market rent. The SLA calls for good faith negotiations to occur between the City and the responding party. Good faith negotiations are defined by HCD “to deal honestly and fairly with the other party throughout the negotiation process whether or not the negotiation results in a contract.” v. Grounds to reject offer. The City may reject an offer when agreement cannot be reached on sales or lease price and/or disposition terms. The City must also prioritize other offers when statutory priority is given (1) to a competing offer that includes a greater number of affordable units, or in case of a tie in the number of units, the lowest average level of affordability consistent with Government Code § 54222.5, or (2) to a qualifying competing offer for parks and recreational purposes under Government Code § 54227(b). The City may also reject an offer when the interested party is not responsive to reasonable conditions or restrictions as described within the NOA, and such conditions or restrictions have been reviewed by HCD.
vi. No sale or lease of surplus land. If the City does not agree on price and terms with any agency or entity that has responded to an NOA, or if there are no responses received to the NOA, the land in question may be disposed of outside the SLA after the 90-day waiting period has expired. In such instances, if 10 or more residential units are developed on the property, no less than fifteen percent (15%) of the total number of residential units developed on the parcels shall be sold or rented as affordable housing as provided in the Surplus Land Act. (See Government Code § 54233; HCD Surplus Land Act Guidelines § 202 (c)(1)(A).) Projects proposing the development of less than 10 residential units, or non-residential development projects, will be subject to recorded deed Packet Pg. 186
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restrictions preserving the affordability component for future developments of 10 or more residential units. Additionally, the purchasing entity shall agree and comply with the provisions further outlined in the SLA and Government Code Section 65915(c)(2).
vii. Post-negotiation Notice and Proposed Disposition Summary. Prior to finalizing agreements or disposing of any surplus land, the Real Property Division shall submit to HCD a description of the NOAs sent, a summary of the negotiations conducted with any responding entity, including non-solicited expressions of interest regarding the disposal of the surplus land, and a copy of any restrictions to be recorded against the property pursuant to Government Code Sections 54233 or 54233.5. HCD has thirty (30) days to issue a response to the City. If no response is received from HCD, the City may proceed with the disposition of the land. Responses received from HCD during the 30-day period will be addressed by the Real Property Division. If needed, City responses will be prepared and submitted to the City Manager, or his or her designee, for approval prior to being sent to HCD. The City must respond to HCD’s responses within sixty (60) days from receipt of HCD’s responses.

Declared Exempt Surplus Land:
viii. Notice of Exemption Determination. The Real Property Division, by direction of the City Manager, shall identify the exemption criteria specific to the property being considered for the exemption and submit the exemption report to the Mayor and City Council for approval during a public hearing. The Mayor and City Council will determine if the property under consideration is exempt surplus land, according to Section 54221 (f)(1). When land is declared exempt surplus, the disposition of the land is not subject to additional requirements under the SLA. The exemption determination must be supported by written findings (Resolution from the Mayor and City Council) and shall be provided to HCD pursuant to Section 400(e) of the SLA. HCD has thirty (30) days to review the exemption declaration for compliance § 400(e) and issue a response. If no response is received from HCD during the 30-day period, no further action is needed. The Real Property Division shall maintain all records related to the reporting requirements of the SLA and monitor applicable compliance timeframes.

Reporting Requirements:
ix. Annual Progress Report (APR). Pursuant to Government Code Section 54230, Packet Pg. 187
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the City is required to report information annually for all locally owned surplus land sites and lands in excess of foreseeable needs. A central inventory compliant with Government Code § 54230 must be made by December 31st of each year. Annual reports are to be submitted to HCD prior to April 1st of each year. Reporting criteria is outlined in table “H” of the APR instructions as published by HCD.
x. Database of City Owned Property. The Real Property Division will maintain a current database of all City owned properties that have been declared surplus or exempt surplus, according to SLA guidelines, by the Mayor and City Council.

The database will provide details of all City owned property, or any right, title, or interest in therein, an estimated fair market value, and the procedures to submit letters of interest to purchase. The database will be accessible on the City’s website under the Real Property Department.

Section 2.65.020 – Competitive Bid
a) Real Property disposed of in accordance with the SLA, therefore fulfilling the required Notice of Availability waiting periods not resulting in sale or contract, or when receiving no responses from prospective developers, and when real property has a fair market value of $25,000 or greater, shall be sold through the Request for Proposals (RFP) process to the most highest and best bidder, but the sales price shall not be less than the fair market value. The RFP bidding process will be initiated through a published notice soliciting proposals via the City’s electronic bidding software. The notice shall be published and advertised on the City’s website in addition to any other publication deemed appropriate by the City Manager, or his or her designee. The publication shall occur at least fifteen (15 days) prior to the scheduled date of the RFP deadline. The advertising and notice shall describe the subject property, or interest therein, to be sold, leased, or disposed, and shall specify the date and time by which proposals are to be received and the date and time of the proposal review. The City Manager, or his or her designee, may reject any or all proposals, or the proposal for any one or more of the parcels or interests described in the RFP public notice. All sales through the RFP bidding process shall be completed with cash purchase or note and deed of trust at fair market interest rate. Upon satisfaction of the payment terms, the City Manager will direct the Real Property Division to prepare or facilitate the preparation of the appropriate deed or other necessary instruments needed to complete the disposition, and schedule any City Council public hearing as required under State law.

Intergovernmental Exchange or Transfer. In the event a City-owned property is to be, transferred or exchanged to or with Federal or State Government, or to a Federally Packet Pg. 188
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recognized California Indian Tribe, or any municipality, or any political subdivision thereof, the City Manager may waive the competitive bid process, as outlined in San Bernardino Municipal Code, section 2.65.20, and directly negotiate the terms and conditions of such transfer or exchange in accordance with San Bernardino Municipal Code Section

2.65.050 – Sales to Public Agencies. Section 2.65.030 – Negotiated Purchase. The City must comply with any applicable provisions of the SLA prior to making such a transfer. a) Real property, or any right, title, or interest therein, being considered for negotiated purchase must be declared surplus or exempt surplus land according to the procedures described in the City of San Bernardino’s Municipal Code Section

2.65.010 – Authority, this Policy and the SLA. Additionally, all required SLA waiting periods are to have expired, with no outstanding requests for action pending from HCD. The City Manager, or his or her designee, will determine the fair market value based upon the procedures described in Municipal Code, Section 2.65.040 – Fair Market Value. Purchases negotiated under this Section are restricted to a minimum purchase price established by the fair market value; properties cannot be sold for less than the fair market value. The Real Property Division will facilitate the sale of the property, or any right, title, or interest therein with the interested party at the direction of the City Manager and with the approval of the City Council, as required by State law.

Section 2.65.040 – Fair Market Value
a) Fair market value shall be established by resolution of the Mayor and City Council based on good and sufficient evidence in the record. For the purposes of property with an initial estimated fair market value of twenty-five thousand dollars ($25,000) or more, “good and sufficient evidence” shall mean and include a formal appraisal performed by a licensed appraiser who is not a City employee. For the purposes of properties with an initial estimated fair market value of twenty-five thousand dollars ($25,000) or less, “good and sufficient evidence” shall mean of any one or more of the following sources: Broker Price Offering (BPO), Comparative Market Analysis (CMA), Automated Valuation Model (AVM), Appraisal, or alternate market analysis as requested by the City Manager or his or her designee.

Section 2.65.050 – Sales to Public Agencies
a) Notwithstanding anything contrary, real property, or any right, title, or interest therein, that is sold to a public agency can be dispositioned without the need for competitive bid. The sales price shall not be less than the established fair market value as described in Section 2.65.040 – Fair Market Value.

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Section 2.65.060 – Terms
a) A sales price may be a cash purchase or the City may accept a note and deed of trust at the fair market interest rate. All terms of sales, transfers, leases, donations, or acquisitions of real property must be approved by the City Manager, or his or her designee and with the approval of the City Council, as required by State law.

Packet Pg. 190

PUBLIC HEARING
City of San Bernardino
Request for Council Action
Date: November 2, 2022
To: Honorable Mayor and City Council Members
From: Robert D. Field, City Manager;
Daniel Hernandez, Agency Director of Public Works,
Operations and Maintenance
Department: Public Works
Subject: Public Hearing on Annexation No. 6 to Community Facilities District 2018-1 (Safety Services), (TR 20494), Adoption of Resolutions for Annexing into the
Community Facilities District (Ward 6)
Recommendation:

The Mayor and City Council of the City of San Bernardino, California

1. Hold a Public Hearing; and

2. Adopt Resolution No. 2022-226 of the Mayor and City Council of the City of San Bernardino, California, acting as the legislative body of the City of San Bernardino Community Facilities District No. 2018-1 (Safety Services), annexing territory to Community Facilities District No. 2018-1 (Safety Services), and calling elections therein; and

3. Hold a special landowner election and canvass the election; and

4. Adopt Resolution No. 2022-227 of the Mayor and City Council of the City of San Bernardino, California, acting as the legislative body of the City of San Bernardino Community Facilities District No. 2018-1 (Safety Services) certifying the results of the November 2, 2022, annexation, and special tax election.

Packet Pg. 191
Background
On September 21, 2022, the Mayor and City Council adopted Resolution No. 2022- 190, a Resolution of Intention to annex territory into Community Facilities District No. 2018-1 (Safety Services) of the City of San Bernardino (the “Resolution of Intention”), pursuant to the provisions of the “Mello-Roos Community Facilities Act of 1982”. A public hearing was set for November 2, 2022, on the proposed annexation of the said territory into the Community Facilities District. As required by the Resolution of Intention, a boundary map was recorded on September 27, 2022, at 11:03 a.m. in Book 90 Page 60, Document No. 2022-0329859 of Maps of Assessment and Community Facilities Districts with the San Bernardino County Recorder.

The Resolution of Intention was adopted by the Mayor and City Council in response to a petition filed by the property owner of approximately 10.10 gross acres of a zoned residential lot within the City, to include 95 detached single-family residences upon buildout, requesting that the City assist them in annexing their properties into CFD No. 2018-1 under the Mello-Roos Act. The property is located south of W. Highland Ave. west of Medical Center Dr, as shown in Attachment 8. The State legislature enacted the Mello-Roos Act in 1982 to assist public agencies in financing certain public improvements by either issuing tax exempt securities that are repaid by annual levy of special taxes, or to provide for the financing of on-going public services. The landowner requested the City annex into CFD No. 2018-1 to levy a special tax to cover the costs associated with financing public safety costs. The public services to be financed within the territory to be annexed to the District are the following:

1. Police protection services (including but not limited to criminal justice services) and paramedic services; and

2. City and County costs associated with the setting, levying and collection of the special tax, and in the administration of the District including the contract administration and operating reserves.

The proposed total maximum tax rate is $385 per residential unit for FY 2022/23. The maximum annual tax rate is proposed to escalate each year after July 1, 2024, by four percent (4.0%). The property owner has agreed to initiate and conduct the CFD annexation proceedings pursuant to the Mello-Roos Act of 1982. The property owner has submitted a “Consent and Waiver” form on file in the City Clerk’s Office to initiate and conduct proceedings pursuant to the Mello-Roos Act in 1982, for the annexation into the CFD and consenting to the shortening of election time requirements, waiving analysis and arguments, and waiving all notice requirements relating to the conduct of the election.

In order to annex property to CFD No. 2018-1 pursuant to the provisions of California Government Code Section 53311 et seq., the City must adopt three statutorily required Resolutions are summarized below:
• Resolution declaring City intent to annex territory to Community Facilities District Packet Pg. 192
No. 2018-1 including the boundary of the area to be annexed and the rate and method of apportionment of special taxes within the annexation area (the special tax applies only to properties within the annexation area), adopted September 21, 2022.
• Resolution calling an election to submit to the qualified electors the question of levying a special tax within the area proposed to be annexed to the District. • Resolution declaring the results of the election and directing the recording of the notice of special tax lien.

Discussion
The Resolution of Intention called for a public hearing to be held on November 2, 2022, on the issue of the annexation of territory into CFD No. 2018-1. Under the Mello-Roos Act, the Mayor and City Council must hold the public hearing and consider any protests against the formation of the CFD. If the owner of one half or more of the land within the proposed boundaries of the CFD file written protests against the establishment of the CFD, the Council may not create the CFD. If a majority protest is not filed, the Mayor and City Council may adopt the resolution establishing the CFD.

Adoption of Resolution No. 2018-264 on September 19, 2018, established CFD 2018- 1, pursuant to the requirements of Government Code Section 53325.1. After a CFD is formed, the Mello-Roos Act requires that for any annexations into the CFD an election be held on the question of whether the proposed special taxes should be levied. The election requires a two-thirds vote in favor of levying the special tax. The landowner filed a waiver with respect to the conduct of the election pursuant to Government Code Sections 53326(a) and 53327(b), meaning that the time limits and procedural requirements for conducting an election under the Mello-Roos Act do not have to be followed. Accordingly, City staff has already mailed the election ballots to the landowner and required the ballot to be returned by the close of the public hearing. If the Mayor and City Council adopt Resolution No. 2022-226, it may immediately proceed to the opening of the ballots and adopt Resolution No. 2022-227 declaring the results of the election.
2021-2025 Strategic Targets and Goals
This project is consistent with Key Target No 1. Improved Operational & Financial Capacity and Key Target No 4. Economic Growth & Development. This project will contribute to ensure that the City is clean and attractive and provide infrastructure designed for long term economic growth.

Fiscal Impact
There is no fiscal impact to the General Fund at this time. The individual property owner in the CFD will be responsible for annual payments of special taxes. Upon full completion of the development, it is estimated that there will be an annual collection of special tax revenues of approximately $36,575 to be used to pay for safety services.

Packet Pg. 193
The Maximum Special Tax rate is proposed to escalate each year after July 1, 2024, by four percent (4.0%).

All costs associated with annexation into the CFD have been borne by the Developer.

Conclusion
The Mayor and City Council of the City of San Bernardino, California:

1. Hold a Public Hearing; and

3. Hold a special land election and canvass the election; and

Attachments
Attachment 1 - Resolution No. 2022-226 (Resolution Calling Election, Authorizing Levy)
Attachment 2 - Exhibit A - Ballot
Attachment 3 - Resolution No. 2022-227 (Resolution Declaring Election Results)
Attachment 4 - Exhibit A – Ballot
Attachment 5 - Exhibit B – Certificate of Election Results Attachment 6 - Registrar of Voters
Attachment 7 – PowerPoint Presentation
Attachment 8 - Project Map
Ward:

Sixth Ward
Synopsis of Previous Council Actions:

August 15, 2018 - Mayor and City Council adopted Resolution No. 2018-239, a Resolution of Intention to form Community Facilities District No. 2018-1 (Safety Services) of the City of San Bernardino (the “Resolution of Intention”), pursuant to the provisions of the “Mello-Roos Community Facilities Act of 1982”.

Packet Pg. 194
September 19, 2018 - Resolution No. 2018-264 was adopted establishing Community Facilities District No. 2018-1; Resolution No. 2018-265 was adopted declaring election results for
Community Facilities District No. 2018-1; and first reading of Ordinance No. MC-1506 levying special taxes to be collected during FY 2019-20 to pay annual costs of safety services and expenses with respect to Community Facilities District No. 2018-1.

October 3, 2018 - Final reading of Ordinance No. MC-1506 levying special taxes to be collected during FY 2019-20 to pay annual costs of safety services and expenses with respect to Community
Facilities District No. 2018-1.

September 21, 2022 - Mayor and City Council adopted Resolution No. 2022-191, a Resolution of Intention to annex territory into Community Facilities District No. 2018-1 (Safety Services) of the City of San Bernardino (the “Resolution of Intention”), pursuant to the provisions of the “Mello-Roos Community Facilities Act of 1982”.

Packet Pg. 195
Resolution No. 2022- 226
RESOLUTION NO. 2022-226

RESOLUTION OF THE MAYOR AND CITY COUNCIL OF

THE CITY OF SAN BERNARDINO, CALIFORNIA, ACTING

AS THE LEGISLATIVE BODY OF THE CITY OF SAN
BERNARDINO COMMUNITY FACILITIES DISTRICT NO.
2018-1 (SAFETY SERVICES), ANNEXING TERRITORY TO
COMMUNITY FACILITIES DISTRICT NO. 2018-1
(SAFETY SERVICES), AND CALLING ELECTIONS

THEREIN
WHEREAS, on August 15, 2018, the Mayor and City Council (the “City Council”) of the City of San Bernardino adopted Resolution No. 2018-239, declaring its intention to establish Community Facilities District No. 2018-1 of the City of San Bernardino (Safety Services) (“Community Facilities District No. 2018-1” or the “District”) pursuant to the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5 of Part 1 of Division 2 of Title 5 of the Government Code of the State of California (the “Act”); and WHEREAS, after a duly noticed public hearing, the Mayor and City Council adopted Resolution No. 2018-264 (the “Resolution of Formation”) establishing Community Facilities District No. 2018-1 and calling a special election therein to authorize (i) the levy of special taxes pursuant to the rate and method of apportionment of the special tax, as set forth in Exhibit “D” attached to the Resolution No. 2018-239 (the “Original Rate and Method”), and (ii) the establishment of an appropriations limit for Community Facilities District No. 2018-1; and WHEREAS, pursuant to a petition signed by PI Properties, LLC (the “Owner”), on September 21, 2022, the Mayor and City Council adopted Resolution No. 2022-190 (the “Resolution of Intention”), stating its intention to annex the territory described in Exhibit“A” to the Resolution of Intention (the “Annexation Territory”) to the District; and WHEREAS, a notice of a public hearing to be held on November 2, 2022, was published and mailed to all landowners of the land proposed to be included within the Annexation Territory as required by law relative to the intention of the Mayor and City Council to annex the Annexation Territory to the District and to levy a special tax in accordance with the Rate and Method (as defined below); and
WHEREAS, on November 2, 2022, this Mayor and City Council held a noticed public hearing as required by law relative to the proposed annexation of the Annexation Territory, the levy of special taxes therein in accordance with the attached as Exhibit “C” to the Resolution of Intention (the “Rate and Method”), which Rate and Method is identical to the Original Rate and Method in all respects except that Appendix A thereto has been updated in accordance with the terms of the Original Rate and Method to reflect the annexation described herein; and WHEREAS, at the November 2, 2022, public hearing all persons desiring to be heard on all matters pertaining to the proposed annexation of the Annexation Territory to the District and the levy of the special taxes within the Annexation Territory in accordance with the Rate and Method were heard and a full and fair hearing was held; and Packet Pg. 196
Resolution No. 2022- 226
WHEREAS, at the public hearing, evidence was presented to the Mayor and City Council on the matters before it, and the proposed annexation of the Annexation Territory to the District and the levy of special taxes within the Annexation Territory in accordance with the Rate and Method was not precluded by a majority protest of the type described in Section 53339.6 of the Act, and this Mayor and City Council at the conclusion of the hearing is fully advised as to all matters relating to the annexation of the Annexation Territory and the levy of the special taxes in accordance with the Rate and Method; and
WHEREAS, the Mayor and City Council has determined that there have been fewer than twelve registered voters residing in the Annexation Territory for the period of 90 days prior to November 2, 2022, and that the qualified electors in Annexation Territory are the landowners therein; and
WHEREAS, on the basis of all of the foregoing, the Mayor and City Council has determined at this time to proceed with the annexation of the Annexation Territory to the District and to call an election within the Annexation Territory to authorize the levy of special taxes pursuant to the Rate and Method.

BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:

SECTION 1. Each of the above recitals is true and correct.

SECTION 2. The Mayor and City Council hereby finds and determines that all prior proceedings taken with respect to the establishment of the District and the proposed annexation of the Annexation Territory to the District were valid and in conformity with the requirements of law, including the Act.

SECTION 3. The map showing the original boundaries of the District designated as “Map of Proposed Boundaries of Community Facilities District No. 2018-1 of the City of San Bernardino (Safety Services),” which map is on file in the office of the City Clerk and was recorded pursuant to Sections 3111 and 3113 of the Streets and Highways Code in the City of County Book of Maps of Assessment and Community Facilities Districts in the Assessor-County Clerk-Recorder’s office of the County of San Bernardino in Book No. 87 Page No. 96, on August 16, 2018 as Instrument No. 2018-0300849.

The map showing the Annexation Territory proposed to be annexed to the District and be made subject to taxation are as shown which map is on file in the office of the City Clerk and was recorded pursuant to Sections 3111 and 3113 of the Streets and Highways Code in the City of County Book of Maps of Assessment and Community Facilities Districts in the Assessor-County Clerk-Recorder’s office of the County of San Bernardino in Book No. 90 Page No. 60, on September 27, 2022 as Instrument No. 2022-0329859.

SECTION 4. The Mayor and City Council hereby adopts the Rate and Method attached as Exhibit “C” to the Resolution of Intention as the applicable rate and method for the Annexation Territory. Except where funds are otherwise available, it is the intention of the Mayor and City Council, subject to the approval of the eligible voters within the Annexation Territory, to levy the proposed special taxes at the rates within the Annexation Territory set forth in the Rate and Method Packet Pg. 197
Resolution No. 2022- 226
on all non-exempt property within the Annexation Territory sufficient to pay for (i) the Services (as defined in the Rate and Method), (ii) fund an operating reserve for the costs of Services as determined by the City, and (v) Administrative Expenses (as defined in the Rate and Method).

The District expects to incur, and in certain cases has already incurred, Administrative Expenses in connection with the annexation of the Annexation Territory to the District. The rate and method of apportionment of the special tax applicable to the Annexation Territory is described in detail in Exhibit “C” to the Resolution of Intention which is incorporated herein by this reference, and the Mayor and City Council hereby finds that Exhibit “C” to the Resolution of Intention contains sufficient detail to allow each landowner within the Annexation Territory to estimate the maximum amount that may be levied against each parcel. The special tax is apportioned to each parcel on the foregoing bases pursuant to Section 53325.3 of the Act and such special tax is not on or based upon the ownership of real property.

The special tax may be levied for such period as the Services are needed, as further described in Exhibit “B” to the Resolution of Intention.

SECTION 6. Upon recordation of a notice of special tax lien pursuant to Section 3114.5 of the Streets and Highways Code, a continuing lien to secure each levy of the special tax shall attach to all non-exempt real property in the Annexation Territory and this lien shall continue in force and effect until the levy of the special tax by the District ceases in accordance with the Rate and Method.

SECTION 7. Consistent with Section 53325.6 of the Act, the Mayor and City Council finds and determines that the land within the Annexation Territory, if any, devoted primarily to agricultural, timber or livestock uses and being used for the commercial production of agricultural, timber or livestock products is contiguous to other land within the Annexation Territory and will be benefited by the Services proposed to be provided within Community Facilities District No. 2018-1 and the Annexation Territory.

SECTION 8. It is hereby further determined that there is no ad valorem property tax currently being levied on property within the Annexation Territory for the exclusive purpose of paying for the same services as are proposed to be provided by Community Facilities District No. 2018-1.

SECTION 9. Written protests against the annexation of the Annexation Territory to the District and the levy of the special tax therein have not been filed by one-half or more of the registered voters within the boundaries of the Annexation Territory to the District or by the property owners of one-half or more of the area of land within the boundaries of the Annexation Territory. The Mayor and City Council hereby finds that the proposed special tax for the Annexation Territory has not been precluded by a majority protest pursuant to Section 53324 of the Act.

SECTION 10. An election is hereby called for the Annexation Territory on the propositions of annexation to the District and the levying the special tax on the property within Packet Pg. 198
Resolution No. 2022- 226
such Annexation Territory, pursuant to Section 53339.7 of the Act. The propositions to be placed on the ballot for the Annexation Territory are attached hereto as Exhibit “A.” SECTION 11. The date of the foregoing elections for each Proposed Annexation Territory shall be November 2, 2022, or such later date as is consented to by the City Clerk and the landowners within the Annexation Territory. The City Clerk shall conduct the elections. Except as otherwise provided by the Act, the elections shall be conducted by personally delivered or mailed ballot and, except as otherwise provided by the Act, the elections shall be conducted in accordance with the provisions of law regulating elections of the City insofar as such provisions are determined by the City Clerk to be applicable.

SECTION 12. It is hereby found that there are not more than twelve registered voters within the territory of the Annexation Territory, and, pursuant to Section 53339.7 of the Act, each landowner who is the owner of record on the date hereof, or the authorized representative thereof, shall have one vote for each acre or portion thereof that he or she owns within the Annexation Territory.

SECTION 13. That the Mayor and City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.

SECTION 14. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable.

SECTION 15. Effective Date. This Resolution shall become effective immediately.

APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this ____day of __________ 2022.

John Valdivia, Mayor
City of San Bernardino
Attest:

Genoveva Rocha, CMC, City Clerk
Approved as to form:

Sonia Carvalho, City Attorney
Packet Pg. 199
Resolution No. 2022- 226

CERTIFICATION

STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss

CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2022-226, adopted at a regular meeting held on the ___ day of _______ 2022 by the following vote:

Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
REYNOSO _____ _____ _______ _______
CALVIN _____ _____ _______ _______
ALEXANDER _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this ___ day of ____________ 2022.

Genoveva Rocha, CMC, City Clerk
Packet Pg. 200

EXHIBIT A

CITY OF SAN BERNARDINO

COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA
COMMUNITY FACILITIES DISTRICT NO. 2018-1 (SAFETY SERVICES) ANNEXATION NO. 6
(November 2, 2022)
This ballot is for the use of the authorized representative of the following owner of land within Community Facilities District No. 2018-1 (Safety Services) (“CFD No. 2018-1”) of the City of San Bernardino:

Name of Landowner Number of Acres Owned Total Votes
PI Properties, LLC 10.10 11
According to the provisions of the Mello-Roos Community Facilities Act of 1982, and resolutions of the City Council (the “Council”) of the City of San Bernardino (the “City”), the above-named landowner is entitled to cast the number of votes shown above under the heading “Total Votes,” representing the total votes for the property owned by said landowner. The City has sent the enclosed ballot to you so that you may vote on whether or not to approve the special tax.

This special tax ballot is for the use of the property owner of the parcels identified below, which parcels are located within the territory proposed to form the CFD No. 2018-1, City of San Bernardino, County of San Bernardino, State of California. Please advise the City Clerk, at (909) 384-5002 if the name set forth below is incorrect or if you are no longer one of the owners of these parcels. This special tax ballot may be used to express either support for or opposition to the proposed special tax. To be counted, this special tax ballot must be signed below by the owner or, if the owner is not an individual, by an authorized representative of the owner. The ballot must then be delivered to the City Clerk, either by mail or in person, as follows:

Mail
Delivery: If by mail, place ballot in the return envelope provided, and mail no later than October 19, 2022, two calendar weeks prior to the date set for the election. Mailing later than this deadline creates the risk that the special tax ballot may not be received in time to be counted.

Personal
Delivery: If in person, deliver to the City Clerk at any time up to 7:00 p.m. on November 2, 2022, at the Clerk’s office at 201 N. “E” Street, Bldg A, City of San Bernardino, CA 92401.

However delivered, this ballot must be received by the Clerk prior to the close of the public meeting on November 2, 2022.

Very truly yours,
Genoveva Rocha, CMC, City Clerk
Packet Pg. 201
TO CAST THIS BALLOT, PLEASE RETURN THIS ENTIRE PAGE.

OFFICIAL SPECIAL TAX BALLOT
Name & Address of Property Owner: Assessor’s Parcel Number(s):

PI Properties, LLC
Attn: Rao Yalamanchili
610 n. Santa Anita Ave.

Arcadia, CA 91006
0143-191-59

CITY OF SAN BERNARDINO

COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA
COMMUNITY FACILITIES DISTRICT NO. 2018-1 (SAFETY SERVICES) AN “X” OR OTHER MARK WILL CAST ALL VOTES ASSIGNED TO THIS BALLOT PROPOSITION A MARK “YES” OR “NO” WITH AN “X”:

Shall the territory described in Attachment “A” of
Resolution No. 2022-___ of the Mayor and City
Council of the City of San Bernardino be annexed to
Community Facilities District No. 2018-1 (Safety
Services)?
YES _________
NO _________
PROPOSITION B MARK “YES” OR “NO” WITH AN “X”:

Shall a special tax with a rate and method of
apportionment as provided in Attachment “C” to
Resolution No. 2022-___ of the Mayor and City
Council of the City of San Bernardino be levied to pay
for the Services and other purposes described in
Resolution No. 2018-264?
YES _________
NO _________
Certification for Special Election Ballot
The undersigned is an authorized representative of the above-named landowner and is the person legally authorized and entitled to cast this ballot on behalf of the above-named landowner.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ____________, 20__.

Pi Properties, LLC
By: Rao Yalamanchili
President

Signature
Print Name
Title
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Resolution No. 2022-227
RESOLUTION NO. 2022-227

RESOLUTION OF THE MAYOR AND CITY COUNCIL OF

THE CITY OF SAN BERNARDINO, CALIFORNIA, ACTING

AS THE LEGISLATIVE BODY OF THE CITY OF SAN
BERNARDINO COMMUNITY FACILITIES DISTRICT NO.
2018-1 (SAFETY SERVICES) CERTIFYING THE RESULTS
OF THE NOVEMBER 2, 2022, ANNEXATION AND

SPECIAL TAX ELECTION
WHEREAS, the Mayor and City Council (the “City Council”) of City of San Bernardino (the “City”) called and duly held consolidated elections on November 2, 2022 within the boundaries of certain territory (the “Annexation Territory”) described in Exhibit “A” to Resolution No. 2022-190 adopted by the Mayor and City Council on September 21, 2022, which territory is to be annexed to Community Facilities District No. 2018-1 (Safety Services) of the City of San Bernardino (“Community Facilities District No. 2018-1” or the “District”) pursuant to Resolution No. 2022-227 for the purpose of presenting to the qualified electors within the Annexation Territory the propositions attached hereto as Exhibit A; and WHEREAS, there has been presented to this Mayor and City Council a certificate of the City Clerk canvassing the results of the election, a copy of which is attached hereto as Exhibit B;

BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:

SECTION 1. Each of the above recitals is true and correct and is adopted by the legislative body of the District.

SECTION 2. The Proposition presented to the qualified electors of the Annexation Territory on November 2, 2022, were approved by more than two-thirds of the votes cast at the election held for the Annexation Territory and Propositions A and B each has carried. The Mayor and City Council, acting as the legislative body of the District, is hereby authorized to levy on the land within the Annexation Territory, which is hereby annexed to the District in accordance with Proposition A, the special tax described in Proposition B for the purposes described therein.

SECTION 3. The Mayor and City Council, acting as the legislative body of the District, is hereby authorized to take the necessary steps to levy the special tax authorized by Proposition B in accordance with Ordinance No. MC-1506 approved by the Mayor and City Council, acting as the legislative body of the District.

SECTION 4. The City Clerk is hereby directed to record in the Office of the County Recorder within fifteen days of the date hereof a notice of special tax lien for the Annexation Territory which Bond Counsel to the District shall prepare in the form required by Streets and Highways Code Section 3114.5.

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Resolution No. 2022-227
SECTION 5. That the Mayor and City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.

SECTION 6. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable.

SECTION 7. Effective Date. This Resolution shall become effective immediately.

APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this ___ day of __________ 2022.

John Valdivia, Mayor
City of San Bernardino
Attest:

Genoveva Rocha, CMC, City Clerk
Approved as to form:

Sonia Carvalho, City Attorney
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Resolution No. 2022-227

CERTIFICATION

STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss

CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2022-227, adopted at a regular meeting held on the ___ day of _______ 2022 by the following vote:

Genoveva Rocha, CMC, City Clerk
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EXHIBIT A

CITY OF SAN BERNARDINO

Personal
Delivery: If in person, deliver to the City Clerk at any time up to 7:00 p.m. on November 2, 2022, at the Clerk’s office at 201 N. “E” Street, Bldg A, City of San Bernardino, CA 92401.

However delivered, this ballot must be received by the Clerk prior to the close of the public meeting on November 2, 2022.

Very truly yours,
Genoveva Rocha, CMC, City Clerk
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TO CAST THIS BALLOT, PLEASE RETURN THIS ENTIRE PAGE.

OFFICIAL SPECIAL TAX BALLOT
Name & Address of Property Owner: Assessor’s Parcel Number(s):

PI Properties, LLC
Attn: Rao Yalamanchili
610 n. Santa Anita Ave.

Arcadia, CA 91006
0143-191-59

CITY OF SAN BERNARDINO

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ____________, 20__.

Pi Properties, LLC
By: Rao Yalamanchili
President

Signature
Print Name
Title
Packet Pg. 207

EXHIBIT B

CITY OF SAN BERNARDINO
COMMUNITY FACILITIES DISTRICT NO. 2018-1 (SAFETY SERVICES) ANNEXATION NO. 6

CERTIFICATE OF ELECTION RESULTS
I, the undersigned, being the Deputy City Clerk or the Acting City Clerk, as the case may be, hereby certify:

In connection with the special mailed-ballot election called by the Mayor and City Council (the “City Council”) of the City of San Bernardino (the “City”) on this same date in the proceedings of the City Council for the annexation of territory to the above-entitled community facilities district, I personally received (a) a signed and dated waiver and consent form and (b) a signed, dated and marked election ballot(s) on behalf of the owner(s) listed below, the entity named as the sole landowner of the land within the boundary of the above-entitled Community Facilities District in the Certificate Regarding Registered Voters and Landowners, dated September 23, 2022, and on file in the office of the City Clerk of the City in connection with the City Council actions on that date. Copies of the completed waiver and consent form and the completed ballot received by me and on file in my office are attached hereto.

Following such receipt, I have personally, and in the presence of all persons present, reviewed the ballot to confirm that it is properly marked and signed, and I hereby certify the result of that count to be that the ballot was cast in favor of the measure.

Based upon the foregoing, all votes that were cast having been cast “Yes”, in favor of the ballot measures, the measure has therefore passed.

PROPOSITION A PROPOSITION B
Landowner
Qualified
Landowner
Votes
Votes
Cast YES NO YES NO
PI Properties, LLC 11 11
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ____________, 2022.

Genoveva Rocha, MMC
City Clerk
City of San Bernardino
By:

(Attach completed copies of Waiver/Consent and Ballot)
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Public Hearing
CFD No. 2018-1 Annexation No. 6:
(TR 20494) APN 0143-191-59
Presented by Barbara Whitehorn, Finance Director
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Public Hearing on CFD 2018-1 Annexation No. 6
Discussion
• The Property Owner, PI Properties, LLC, has requested the City assist them in annexing territory into CFD No. 2018-1 to cover the costs associated with Public Safety services.
• The area proposed within Annexation No. 6 includes one APN 0143-191- 59 within TR 20494. This proposed development is to include 95 detached single-family residential lots.
• On September 21, 2022, the City Council adopted Resolution No. 2022- 190, a Resolution of Intention to annex these properties into CFD No. 2018-1 and hold a Public Hearing on November 2, 2022. The property owner consented to waiving certain time restriction and conduct the election the same night.

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Public Hearing on CFD 2018-1 Annexation No. 6
Discussion (Cont.)
• The proposed maximum annual tax of $385 per residential unit for Fiscal Year 2022-23.
• The Special Tax is proposed to escalate each year after July 1, 2024, by 4%.
• The services, which may be funded with proceeds of the special tax include:
• Police protection services (including but not limited to criminal justice services) and paramedic services; and
• City and County costs associated with the setting, levying and collection of the special tax, and in the administration of the District including the contract administration and operating reserves.

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Project Location
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Public Hearing on CFD 2018-1 Annexation No. 6
Fiscal Impact
• It is anticipated that at build-out the total Special Tax revenues to pay for public safety services will be approximately $36,575. All costs associated with the annexation is borne by the Developer. There is no fiscal impact to the City’s General Fund.

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Public Hearing on CFD 2018-1 Annexation No. 6
Recommended Action
City Council initiate annexation of territory to City of San Bernardino Community Facilities District No. 2018-1 (Safety Services) ("CFD No. 2018-1" or "CFD") by taking the following actions:
a. Hold public hearing,
b. Adopt a Resolution calling the election,
c. Hold a special landowner election and canvass the election, d. Adopt a Resolution declaring results of special landowner election;

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Questions?
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CFD NO. 2018-1 (MAINTENANCE SERVICES)
ANNEXATION NO. 6

PROJECT MAP
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PUBLIC HEARING
City of San Bernardino
Request for Council Action
Date: November 2, 2022
To: Honorable Mayor and City Council Members
From: Robert D. Field, City Manager;
Daniel Hernandez, Agency Director of Public Works,
Operations and Maintenance
Department: Public Works
Subject: Public Hearing on Annexation No. 7 to Community Facilities District 2018-1 (Safety Services), (TR 20495), Adoption of Resolutions for Annexing into the
Community Facilities District (Ward 4)
Recommendation:

The Mayor and City Council of the City of San Bernardino, California:

1. Hold a Public Hearing; and

2. Adopt Resolution No. 2022-228 of the Mayor and City Council of the City of San Bernardino, California, acting as the legislative body of the City of San Bernardino Community Facilities District No. 2018-1 (Safety Services), annexing territory to Community Facilities District No. 2018-1 (Safety Services), and calling elections therein; and

3. Hold a special landowner election and canvass the election; and

4. Adopt Resolution No. 2022-229 of the Mayor and City Council of the City of San Bernardino, California, acting as the legislative body of the City of San Bernardino Community Facilities District No. 2018-1 (Safety Services) certifying the results of the November 2, 2022, annexation and special tax election.

Background
On September 21, 2022, the Mayor and City Council adopted Resolution No. 2022- 191, a Resolution of Intention to annex territory into Community Facilities District No. 2018-1 (Safety Services) of the City of San Bernardino (the “Resolution of Intention”), pursuant to the provisions of the “Mello-Roos Community Facilities Act of 1982”. A Packet Pg. 218
public hearing was set for November 2, 2022, on the proposed annexation of the said territory into the Community Facilities District. As required by the Resolution of Intention, a boundary map was recorded on September 27, 2022, at 11:03 a.m. in Book 90 Page 61, Document No. 2022-0324860 of Maps of Assessment and Community Facilities Districts with the San Bernardino County Recorder.

The Resolution of Intention was adopted by the Mayor and City Council in response to a petition filed by the property owner of approximately 15.51 gross acres of a zoned residential lot within the City, to include 133 detached single-family residences upon buildout, requesting that the City assist them in annexing their properties into CFD No. 2018-1 under the Mello-Roos Act. The property is located at the northwest intersection of E Highland Ave. and N Palm Ave, as shown in Attachment #1. The State legislature enacted the Mello-Roos Act in 1982 to assist public agencies in financing certain public improvements by either issuing tax exempt securities that are repaid by annual levy of special taxes, or to provide for the financing of on-going public services. The landowner requested the City annex into CFD No. 2018-1 to levy a special tax to cover the costs associated with financing public safety costs. The public services to be financed within the territory to be annexed to the District are the following:

1. Police protection services (including but not limited to criminal justice services) and paramedic services; and

The proposed total maximum tax rate is $385 per residential unit for FY 2022/23. The maximum annual tax rate is proposed to escalate each year after July 1, 2024, by four percent (4.0%). The property owners have agreed to initiate and conduct the CFD annexation proceedings pursuant to the Mello-Roos Act of 1982. The property owners have submitted a “Consent and Waiver” form on file in the City Clerk’s Office to initiate and conduct proceedings pursuant to the Mello-Roos Act in 1982, for the annexation into the CFD and consenting to the shortening of election time requirements, waiving analysis and arguments, and waiving all notice requirements relating to the conduct of the election.

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• Resolution calling an election to submit to the qualified electors the question of levying a special tax within the area proposed to be annexed to the District. • Resolution declaring the results of the election and directing the recording of the notice of special tax lien.

Discussion
The Resolution of Intention called for a public hearing to be held on November 2, 2022, on the issue of the annexation of territory into CFD No. 2018-1. Under the Mello-Roos Act, the Mayor and City Council must hold the public hearing and consider any protests against the formation of the CFD. If the owners of one half or more of the land within the proposed boundaries of the CFD file written protests against the establishment of the CFD, the Council may not create the CFD. If a majority protest is not filed, the Mayor and City Council may adopt the resolution establishing the CFD.

Adoption of Resolution No. 2018-264 on September 19, 2018, established CFD 2018- 1, pursuant to the requirements of Government Code Section 53325.1. After a CFD is formed, the Mello-Roos Act requires that for any annexations into the CFD an election be held on the question of whether the proposed special taxes should be levied. The election requires a two-thirds vote in favor of levying the special tax. The landowners filed waivers with respect to the conduct of the election pursuant to Government Code Sections 53326(a) and 53327(b), meaning that the time limits and procedural requirements for conducting an election under the Mello-Roos Act do not have to be followed. Accordingly, City staff has already mailed the election ballots to the landowners and required the ballots to be returned by the close of the public hearing. If the Mayor and City Council adopt Resolution No. 2022-228, it may immediately proceed to the opening of the ballots and adopt Resolution No. 2022-229 declaring the results of the election.
2021-2025 Strategic Targets and Goals
This project is consistent with Key Target No 1. Improved Operational & Financial Capacity and Key Target No 4. Economic Growth & Development. This project will contribute to ensure that the City is clean and attractive and provide infrastructure designed for long term economic growth.

Fiscal Impact
There is no fiscal impact to the General Fund at this time. The individual property owners in the CFD will be responsible for annual payments of special taxes. Upon full completion of the development, it is estimated that there will be an annual collection of special tax revenues of approximately $51,205 to be used to pay for safety services.

The Maximum Special Tax rate is proposed to escalate each year after July 1, 2024, by four percent (4.0%). All costs associated with annexation into the CFD have been borne by the Developer.

Conclusion
The Mayor and City Council of the City of San Bernardino, California:

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1. Hold a Public Hearing; and

3. Hold a special landowner election and canvass the election; and

Attachments
Attachment 1 - Project Map
Attachment 2 - Resolution No. 2022-228 (Resolution Calling Election, Authorizing Levy)
Attachment 3 - Exhibit A - Ballot
Attachment 4 - Resolution No. 2022-229 (Resolution Declaring Election Results)
Attachment 5 - Exhibit A – Ballot
Attachment 6 - Exhibit B – Certificate of Election Results Attachment 7 - Registrar of Voters
Attachment 8 – PowerPoint Presentation
Ward:

Fourth Ward
Synopsis of Previous Council Actions:

September 19, 2018 - Resolution No. 2018-264 was adopted establishing Community Facilities District No. 2018-1; Resolution No. 2018-265 was adopted declaring election results for
Community Facilities District No. 2018-1; and first reading of Ordinance No. MC-1506 levying special taxes to be collected during FY 2019-20 to pay annual costs of safety services and expenses with respect to Community Facilities District No. 2018-1.

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October 3, 2018 - Final reading of Ordinance No. MC-1506 levying special taxes to be collected during FY 2019-20 to pay annual costs of safety services and expenses with respect to Community
Facilities District No. 2018-1.

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CFD NO. 2018-1 (MAINTENANCE SERVICES)
ANNEXATION NO. 7

PROJECT MAP
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Resolution No. 2022- ___
RESOLUTION NO.______

RESOLUTION OF THE MAYOR AND CITY COUNCIL OF

THE CITY OF SAN BERNARDINO, CALIFORNIA,

ACTING AS THE LEGISLATIVE BODY OF THE CITY OF

SAN BERNARDINO COMMUNITY FACILITIES
DISTRICT NO. 2018-1 (SAFETY SERVICES), ANNEXING

TERRITORY TO COMMUNITY FACILITIES DISTRICT
NO. 2018-1 (SAFETY SERVICES), AND CALLING

ELECTIONS THEREIN
WHEREAS, on August 15, 2018, the Mayor and City Council (the “City Council”) of the City of San Bernardino adopted Resolution No. 2018-239, declaring its intention to establish Community Facilities District No. 2018-1 of the City of San Bernardino (Safety Services) (“Community Facilities District No. 2018-1” or the “District”) pursuant to the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5 of Part 1 of Division 2 of Title 5 of the Government Code of the State of California (the “Act”); and WHEREAS, after a duly noticed public hearing, the Mayor and City Council adopted Resolution No. 2018-264 (the “Resolution of Formation”) establishing Community Facilities District No. 2018-1 and calling a special election therein to authorize (i) the levy of special taxes pursuant to the rate and method of apportionment of the special tax, as set forth in Exhibit “D” attached to the Resolution No. 2018-239 (the “Original Rate and Method”), and (ii) the establishment of an appropriations limit for Community Facilities District No. 2018-1; and WHEREAS, pursuant to a petition signed by Pacific West Company, Ann Lau, Hanhsing Li, and Chenmei Cheng (the “Owners”), on September 21, 2022, the Mayor and City Council adopted Resolution No. 2022-191 (the “Resolution of Intention”), stating its intention to annex the territory described in Exhibit “A” to the Resolution of Intention (the “Annexation Territory”) to the District; and
WHEREAS, a notice of a public hearing to be held on November 2, 2022, was published and mailed to all landowners of the land proposed to be included within the Annexation Territory as required by law relative to the intention of the Mayor and City Council to annex the Annexation Territory to the District and to levy a special tax in accordance with the Rate and Method (as defined below); and
WHEREAS, on November 2, 2022, this Mayor and City Council held a noticed public hearing as required by law relative to the proposed annexation of the Annexation Territory, the levy of special taxes therein in accordance with the attached as Exhibit “C” to the Resolution of Intention (the “Rate and Method”), which Rate and Method is identical to the Original Rate and Method in all respects except that Appendix A thereto has been updated in accordance with the terms of the Original Rate and Method to reflect the annexation described herein; and WHEREAS, at the November 2, 2022, public hearing all persons desiring to be heard on all matters pertaining to the proposed annexation of the Annexation Territory to the District and Packet Pg. 224
Resolution No. 2022- ___
the levy of the special taxes within the Annexation Territory in accordance with the Rate and Method were heard and a full and fair hearing was held; and WHEREAS, at the public hearing, evidence was presented to the Mayor and City Council on the matters before it, and the proposed annexation of the Annexation Territory to the District and the levy of special taxes within the Annexation Territory in accordance with the Rate and Method was not precluded by a majority protest of the type described in Section 53339.6 of the Act, and this Mayor and City Council at the conclusion of the hearing is fully advised as to all matters relating to the annexation of the Annexation Territory and the levy of the special taxes in accordance with the Rate and Method; and
WHEREAS, the Mayor and City Council has determined that there have been fewer than twelve registered voters residing in the Annexation Territory for the period of 90 days prior to November 2, 2022, and that the qualified electors in Annexation Territory are the landowners therein; and
WHEREAS, on the basis of all of the foregoing, the Mayor and City Council has determined at this time to proceed with the annexation of the Annexation Territory to the District and to call an election within the Annexation Territory to authorize the levy of special taxes pursuant to the Rate and Method.

BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:

SECTION 1. Each of the above recitals is true and correct.

The map showing the Annexation Territory proposed to be annexed to the District and be made subject to taxation are as shown which map is on file in the office of the City Clerk and was recorded pursuant to Sections 3111 and 3113 of the Streets and Highways Code in the City of County Book of Maps of Assessment and Community Facilities Districts in the Assessor-County Clerk-Recorder’s office of the County of San Bernardino in Book No. 90 Page No. 61, on September 27, 2022, as Instrument No. 2022-0324860.

SECTION 4. The Mayor and City Council hereby adopts the Rate and Method attached as Exhibit “C” to the Resolution of Intention as the applicable rate and method for the Packet Pg. 225
Resolution No. 2022- ___
Annexation Territory. Except where funds are otherwise available, it is the intention of the Mayor and City Council, subject to the approval of the eligible voters within the Annexation Territory, to levy the proposed special taxes at the rates within the Annexation Territory set forth in the Rate and Method on all non-exempt property within the Annexation Territory sufficient to pay for (i) the Services (as defined in the Rate and Method), (ii) fund an operating reserve for the costs of Services as determined by the City, and (v) Administrative Expenses (as defined in the Rate and Method). The District expects to incur, and in certain cases has already incurred, Administrative Expenses in connection with the annexation of the Annexation Territory to the District. The rate and method of apportionment of the special tax applicable to the Annexation Territory is described in detail in Exhibit “C” to the Resolution of Intention which is incorporated herein by this reference, and the Mayor and City Council hereby finds that Exhibit “C” to the Resolution of Intention contains sufficient detail to allow each landowner within the Annexation Territory to estimate the maximum amount that may be levied against each parcel.

The special tax is apportioned to each parcel on the foregoing bases pursuant to Section 53325.3 of the Act and such special tax is not on or based upon the ownership of real property.

SECTION 5. The City Manager will be responsible for preparing annually, or authorizing a designee to prepare, a current roll of special tax levy obligations by assessor’s parcel number and will be responsible for estimating future special tax levies pursuant to Section 53340.2 of the Act. The special tax may be levied for such period as the Services are needed, as further described in Exhibit “B” to the Resolution of Intention.

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Resolution No. 2022- ___
SECTION 10. An election is hereby called for the Annexation Territory on the propositions of annexation to the District and the levying the special tax on the property within such Annexation Territory, pursuant to Section 53339.7 of the Act. The propositions to be placed on the ballot for the Annexation Territory are attached hereto as Exhibit “A.” SECTION 11. The date of the foregoing elections for each Proposed Annexation Territory shall be November 2, 2022, or such later date as is consented to by the City Clerk and the landowners within the Annexation Territory. The City Clerk shall conduct the elections.

Except as otherwise provided by the Act, the elections shall be conducted by personally delivered or mailed ballot and, except as otherwise provided by the Act, the elections shall be conducted in accordance with the provisions of law regulating elections of the City insofar as such provisions are determined by the City Clerk to be applicable.

SECTION 15. Effective Date. This Resolution shall become effective immediately.

APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this ____day of __________ 2022.

John Valdivia, Mayor
City of San Bernardino
Attest:

Genoveva Rocha, CMC, City Clerk
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Resolution No. 2022- ___
Approved as to form:

Sonia Carvalho, City Attorney
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Resolution No. 2022- ___

CERTIFICATION

STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss

CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2022-___, adopted at a regular meeting held on the ___ day of _______ 2022 by the following vote:

Genoveva Rocha, CMC, City Clerk
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EXHIBIT A

CITY OF SAN BERNARDINO

COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA
COMMUNITY FACILITIES DISTRICT NO. 2018-1 (SAFETY SERVICES) ANNEXATION NO. 7
(November 2, 2022)
This ballot is for the use of the authorized representative of the following owner of land within Community Facilities District No. 2018-1 (Safety Services) (“CFD No. 2018-1”) of the City of San Bernardino:

Name of Landowner Number of Acres Owned Total Votes
Chenmei Cheng 4.265 5
According to the provisions of the Mello-Roos Community Facilities Act of 1982, and resolutions of the City Council (the “Council”) of the City of San Bernardino (the “City”), the above-named landowner is entitled to cast the number of votes shown above under the heading “Total Votes,” representing the total votes for the property owned by said landowner. The City has sent the enclosed ballot to you so that you may vote on whether or not to approve the special tax.

Personal
Delivery: If in person, deliver to the City Clerk at any time up to 7:00 p.m. on November 2, 2022, at the Clerk’s office at 201 N. “E” Street, Bldg A, City of San Bernardino, CA 92401.

However delivered, this ballot must be received by the Clerk prior to the close of the public meeting on November 2, 2022.

Very truly yours,
Genoveva Rocha, CMC, City Clerk
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TO CAST THIS BALLOT, PLEASE RETURN THIS ENTIRE PAGE.

OFFICIAL SPECIAL TAX BALLOT
Name & Address of Property Owner: Assessor’s Parcel Number(s):

Chenmei Cheng
Attn: Matthew Esquivel
3090 Pullman Street
Costa Mesa, CA 92626
0285-211-05 and 0285-211-25

CITY OF SAN BERNARDINO

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ____________, 20__.

Chenmei Cheng
Owner
Signature
Print Name
Title
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EXHIBIT A

CITY OF SAN BERNARDINO

Name of Landowner Number of Acres Owned Total Votes
Ann C. Lau 0.853 1
According to the provisions of the Mello-Roos Community Facilities Act of 1982, and resolutions of the City Council (the “Council”) of the City of San Bernardino (the “City”), the above-named landowner is entitled to cast the number of votes shown above under the heading “Total Votes,” representing the total votes for the property owned by said landowner. The City has sent the enclosed ballot to you so that you may vote on whether or not to approve the special tax.

Personal
Delivery: If in person, deliver to the City Clerk at any time up to 7:00 p.m. on November 2, 2022, at the Clerk’s office at 201 N. “E” Street, Bldg A, City of San Bernardino, CA 92401.

However delivered, this ballot must be received by the Clerk prior to the close of the public meeting on November 2, 2022.

Very truly yours,
Genoveva Rocha, CMC, City Clerk
Packet Pg. 232
TO CAST THIS BALLOT, PLEASE RETURN THIS ENTIRE PAGE.

OFFICIAL SPECIAL TAX BALLOT
Name & Address of Property Owner: Assessor’s Parcel Number(s):

Ann C. Lau
Attn: Matthew Esquivel
3090 Pullman Street
Costa Mesa, CA 92626
0285-211-05 and 0285-211-25

CITY OF SAN BERNARDINO

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ____________, 20__.

Ann C. Lau
Owner
Signature
Print Name
Title
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EXHIBIT A

CITY OF SAN BERNARDINO

Name of Landowner Number of Acres Owned Total Votes
Hanhsing Li 3.412 4
According to the provisions of the Mello-Roos Community Facilities Act of 1982, and resolutions of the City Council (the “Council”) of the City of San Bernardino (the “City”), the above-named landowner is entitled to cast the number of votes shown above under the heading “Total Votes,” representing the total votes for the property owned by said landowner. The City has sent the enclosed ballot to you so that you may vote on whether or not to approve the special tax.

Personal
Delivery: If in person, deliver to the City Clerk at any time up to 7:00 p.m. on November 2, 2022, at the Clerk’s office at 201 N. “E” Street, Bldg A, City of San Bernardino, CA 92401.

However delivered, this ballot must be received by the Clerk prior to the close of the public meeting on November 2, 2022.

Very truly yours,
Genoveva Rocha, CMC, City Clerk
Packet Pg. 234
TO CAST THIS BALLOT, PLEASE RETURN THIS ENTIRE PAGE.

OFFICIAL SPECIAL TAX BALLOT
Name & Address of Property Owner: Assessor’s Parcel Number(s):

Hanhsing Li
Attn: Matthew Esquivel
3090 Pullman Street
Costa Mesa, CA 92626
0285-211-05 and 0285-211-25

CITY OF SAN BERNARDINO

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ____________, 20__.

Hanhsing Li
Owner
Signature
Print Name
Title
Packet Pg. 235

EXHIBIT A

CITY OF SAN BERNARDINO

Name of Landowner Number of Acres Owned Total Votes
Pacific West Company 6.599 7
According to the provisions of the Mello-Roos Community Facilities Act of 1982, and resolutions of the City Council (the “Council”) of the City of San Bernardino (the “City”), the above-named landowner is entitled to cast the number of votes shown above under the heading “Total Votes,” representing the total votes for the property owned by said landowner. The City has sent the enclosed ballot to you so that you may vote on whether or not to approve the special tax.

Personal
Delivery: If in person, deliver to the City Clerk at any time up to 7:00 p.m. on November 2, 2022, at the Clerk’s office at 201 N. “E” Street, Bldg A, City of San Bernardino, CA 92401.

However delivered, this ballot must be received by the Clerk prior to the close of the public meeting on November 2, 2022.

Very truly yours,
Genoveva Rocha, CMC, City Clerk
Packet Pg. 236
TO CAST THIS BALLOT, PLEASE RETURN THIS ENTIRE PAGE.

OFFICIAL SPECIAL TAX BALLOT
Name & Address of Property Owner: Assessor’s Parcel Number(s):

Pacific West Company
Attn: Matthew Esquivel
3090 Pullman Street
Costa Mesa, CA 92626
0285-211-21, -22, -23

CITY OF SAN BERNARDINO

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ____________, 20__.

Pacific West Company
Owner
Signature
Print Name
Title
Packet Pg. 237
Resolution No. 2022-229
RESOLUTION NO. 2022-229

RESOLUTION OF THE MAYOR AND CITY COUNCIL OF

THE CITY OF SAN BERNARDINO, CALIFORNIA, ACTING

AS THE LEGISLATIVE BODY OF THE CITY OF SAN
BERNARDINO COMMUNITY FACILITIES DISTRICT NO.
2018-1 (SAFETY SERVICES) CERTIFYING THE RESULTS
OF THE NOVEMBER 2, 2022, ANNEXATION AND

SPECIAL TAX ELECTION
WHEREAS, the Mayor and City Council (the “City Council”) of City of San Bernardino (the “City”) called and duly held consolidated elections on November 2, 2022 within the boundaries of certain territory (the “Annexation Territory”) described in Exhibit “A” to Resolution No. 2022-191 adopted by the Mayor and City Council on September 21, 2022, which territory is to be annexed to Community Facilities District No. 2018-1 (Safety Services) of the City of San Bernardino (“Community Facilities District No. 2018-1” or the “District”) pursuant to Resolution No. 2022-229 for the purpose of presenting to the qualified electors within the Annexation Territory the propositions attached hereto as Exhibit A; and WHEREAS, there has been presented to this Mayor and City Council a certificate of the City Clerk canvassing the results of the election, a copy of which is attached hereto as Exhibit “B”.

BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:

SECTION 1. Each of the above recitals are true and correct and is adopted by the legislative body of the District.

Packet Pg. 238
Resolution No. 2022-229
SECTION 5. That the Mayor and City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.

SECTION 7. Effective Date. This Resolution shall become effective immediately.

APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this ___ day of __________ 2022.

John Valdivia, Mayor
City of San Bernardino
Attest:

Genoveva Rocha, CMC, City Clerk
Approved as to form:

Sonia Carvalho, City Attorney
Packet Pg. 239
Resolution No. 2022-229

CERTIFICATION

STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss

CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2022-229, adopted at a regular meeting held on the ___ day of _______ 2022 by the following vote:

Genoveva Rocha, CMC, City Clerk
Packet Pg. 240

EXHIBIT A

CITY OF SAN BERNARDINO

Personal
Delivery: If in person, deliver to the City Clerk at any time up to 7:00 p.m. on November 2, 2022, at the Clerk’s office at 201 N. “E” Street, Bldg A, City of San Bernardino, CA 92401.

However delivered, this ballot must be received by the Clerk prior to the close of the public meeting on November 2, 2022.

Very truly yours,
Genoveva Rocha, CMC, City Clerk
Packet Pg. 241
TO CAST THIS BALLOT, PLEASE RETURN THIS ENTIRE PAGE.

OFFICIAL SPECIAL TAX BALLOT
Name & Address of Property Owner: Assessor’s Parcel Number(s):

Chenmei Cheng
Attn: Matthew Esquivel
3090 Pullman Street
Costa Mesa, CA 92626
0285-211-05 and 0285-211-25

CITY OF SAN BERNARDINO

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ____________, 20__.

Chenmei Cheng
Owner
Signature
Print Name
Title
Packet Pg. 242

EXHIBIT A

CITY OF SAN BERNARDINO

Personal
Delivery: If in person, deliver to the City Clerk at any time up to 7:00 p.m. on November 2, 2022, at the Clerk’s office at 201 N. “E” Street, Bldg A, City of San Bernardino, CA 92401.

However delivered, this ballot must be received by the Clerk prior to the close of the public meeting on November 2, 2022.

Very truly yours,
Genoveva Rocha, CMC, City Clerk
Packet Pg. 243
TO CAST THIS BALLOT, PLEASE RETURN THIS ENTIRE PAGE.

OFFICIAL SPECIAL TAX BALLOT
Name & Address of Property Owner: Assessor’s Parcel Number(s):

Ann C. Lau
Attn: Matthew Esquivel
3090 Pullman Street
Costa Mesa, CA 92626
0285-211-05 and 0285-211-25

CITY OF SAN BERNARDINO

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ____________, 20__.

Ann C. Lau
Owner
Signature
Print Name
Title
Packet Pg. 244

EXHIBIT A

CITY OF SAN BERNARDINO

Personal
Delivery: If in person, deliver to the City Clerk at any time up to 7:00 p.m. on November 2, 2022, at the Clerk’s office at 201 N. “E” Street, Bldg A, City of San Bernardino, CA 92401.

However delivered, this ballot must be received by the Clerk prior to the close of the public meeting on November 2, 2022.

Very truly yours,
Genoveva Rocha, CMC, City Clerk
Packet Pg. 245
TO CAST THIS BALLOT, PLEASE RETURN THIS ENTIRE PAGE.

OFFICIAL SPECIAL TAX BALLOT
Name & Address of Property Owner: Assessor’s Parcel Number(s):

Hanhsing Li
Attn: Matthew Esquivel
3090 Pullman Street
Costa Mesa, CA 92626
0285-211-05 and 0285-211-25

CITY OF SAN BERNARDINO

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ____________, 20__.

Hanhsing Li
Owner
Signature
Print Name
Title
Packet Pg. 246

EXHIBIT A

CITY OF SAN BERNARDINO

Personal
Delivery: If in person, deliver to the City Clerk at any time up to 7:00 p.m. on November 2, 2022, at the Clerk’s office at 201 N. “E” Street, Bldg A, City of San Bernardino, CA 92401.

However delivered, this ballot must be received by the Clerk prior to the close of the public meeting on November 2, 2022.

Very truly yours,
Genoveva Rocha, CMC, City Clerk
Packet Pg. 247
TO CAST THIS BALLOT, PLEASE RETURN THIS ENTIRE PAGE.

OFFICIAL SPECIAL TAX BALLOT
Name & Address of Property Owner: Assessor’s Parcel Number(s):

Pacific West Company
Attn: Matthew Esquivel
3090 Pullman Street
Costa Mesa, CA 92626
0285-211-21, -22, -23

CITY OF SAN BERNARDINO

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ____________, 20__.

Pacific West Company
Owner
Signature
Print Name
Title
Packet Pg. 248

EXHIBIT B

CITY OF SAN BERNARDINO
COMMUNITY FACILITIES DISTRICT NO. 2018-1 (SAFETY SERVICES) ANNEXATION NO. 7

CERTIFICATE OF ELECTION RESULTS
I, the undersigned, being the Deputy City Clerk or the Acting City Clerk, as the case may be, hereby certify:

In connection with the special mailed-ballot election called by the Mayor and City Council (the “City Council”) of the City of San Bernardino (the “City”) on this same date in the proceedings of the City Council for the annexation of territory to the above-entitled community facilities district, I personally received (a) a signed and dated waiver and consent form and (b) a signed, dated and marked election ballot(s) on behalf of the owner(s) listed below, the entities named are the sole landowners of the land within the boundary of the above-entitled community facilities district in the Certificate Regarding Registered Voters and Landowners, dated September 27, 2022, and on file in the office of the City Clerk of the City in connection with the City Council actions on that date. Copies of the completed waiver and consent form and the completed ballot received by me and on file in my office are attached hereto.

Based upon the foregoing, all votes that were cast having been cast “Yes”, in favor of the ballot measures, the measures have therefore passed.

PROPOSITION A PROPOSITION B
Landowner
Qualified
Landowner
Votes
Votes
Cast YES NO YES NO
Chenmei Cheng 5 5
Ann C. Lau 1 1
Hanhsing Li 4 4
Pacific West Company 7 7
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ____________, 2022.

Genoveva Rocha, MMC
City Clerk
City of San Bernardino
By:

(Attach completed copies of Waiver/Consent and Ballot)
Packet Pg. 249
Packet Pg. 250
Public Hearing
CFD No. 2018-1 Annexation No. 7:
(TR 20495) APN 0285-211-05, -21, -22, -23, -25
Presented by Barbara Whitehorn, Finance Director
Packet Pg. 251
Public Hearing on CFD 2018-1 Annexation No. 7
Discussion
• The Property Owner, Pacific West Company, et al, has requested the City assist them in annexing territory into CFD No. 2018-1 to cover the costs associated with Public Safety services.
• The area proposed within Annexation No. 7 includes one APNs 0285-211 -05, -21, -22, -23, and -25 within TR 20495. This proposed development is to include 133 detached single-family residential lots. • On September 21, 2022 the City Council adopted Resolution No. 2022- 191, a Resolution of Intention to annex these properties into CFD No. 2018-1 and hold a Public Hearing on November 2, 2022. The property owner consented to waiving certain time restriction and conduct the election the same night.

Packet Pg. 252
Public Hearing on CFD 2018-1 Annexation No. 7
Discussion (Cont.)
• The proposed maximum annual tax of $385 per residential unit for Fiscal Year 2022-23.
• The Special Tax is proposed to escalate each year after July 1, 2024 by 4%.
• The services, which may be funded with proceeds of the special tax include:
• Police protection services (including but not limited to criminal justice services) and paramedic services; and
• City and County costs associated with the setting, levying and collection of the special tax, and in the administration of the District including the contract administration and operating reserves.

Packet Pg. 253
Project Location
Packet Pg. 254
Public Hearing on CFD 2018-1 Annexation No. 7
Fiscal Impact
• It is anticipated that at build-out the total Special Tax revenues to pay for public safety services will be approximately $51,205. All costs associated with the annexation is borne by the Developer. There is no fiscal impact to the City’s General Fund.

Packet Pg. 255
Public Hearing on CFD 2018-1 Annexation No. 7
Recommended Action
City Council initiate annexation of territory to City of San Bernardino Community Facilities District No. 2018-1 (Safety Services) ("CFD No. 2018-1" or "CFD") by taking the following actions:
a. Hold public hearing,
b. Adopt a Resolution calling the election,
c. Hold a special landowner election and canvass the election, d. Adopt a Resolution declaring results of special landowner election;

Packet Pg. 256
Questions?
Packet Pg. 257

PUBLIC HEARING
City of San Bernardino
Request for Council Action
Date: November 2, 2022
To: Honorable Mayor and City Council Members
From: Robert D. Field, City Manager;
Nathan Freeman, Agency Director of Community, Housing, and Economic Development
Department: Community, Housing, & Economic Development (CED) Subject: Approval of the Draft Fiscal Year 2021-2022
Consolidated Annual Performance and Evaluation
Report (CAPER) to the US Department of Housing and
Urban Development.

Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, conduct a public hearing on the draft Fiscal Year 2021-2022 Consolidated Annual Performance and Evaluation Report and authorize its submission to the United States Department of Housing and Urban Development (HUD).

Background
The City is a direct recipient of Community Planning and Development formula grants (Community Development Block Grant [CDBG], HOME Investment Partnerships Program [HOME] and Emergency Solutions Grant [ESG]). As an entitlement City, the City is required to provide a report to HUD on its performance in meeting the housing and community development goals and objectives in its approved Five-Year Consolidated Plan. This performance report is called the CAPER.

Discussion
Every year the City receives CDBG, HOME and ESG program funds from HUD. The purpose of the funds is to assist the City in meeting the affordable housing and community development goals and objectives, in the City’s Five-Year Consolidated Plan, particularly for persons and families of low-to-moderate income.

Packet Pg. 258
In order to identify the areas of greatest need and highest priorities in the community, the City undertakes a planning process known as the Consolidated Plan Cycle. This process is documented by three reports:

1. One Five-Year Consolidated Plan;

2. Five annual Action Plans; and

3. Five annual CAPERs.

Consolidated Plan
The Consolidated Plan serves four primary functions:

1. It is a planning document for the community that is built upon public participation and input;

2. It serves as the application for HUD’s formula grant programs (CDBG, HOME and ESG) which focus on providing decent housing, suitable living environments, and expanded economic opportunities for low- and moderate-income families;

3. It identifies the City’s needs in the areas of housing, homelessness, community development, and economic development, and puts forward the City’s strategies and timetables for addressing those needs; and

4. It serves as a five-year planning document for the use of HUD funds and implementation of programs that will meet local needs. The current Five-Year Consolidated Plan covers July 1, 2020, through June 30, 2025.

One-Year Action Plan
The one-year Action Plan describes specific projects and activities the City will undertake, as well as the financial resources it will use to meet the affordable housing and community development needs for a specific fiscal year. The 2020-2021 Action Plan was adopted by the Mayor and City Council on April 15, 2020, the first of five Annual Action plans under the current Consolidated Plan.

CAPER
This report is the first year CAPER under the current Consolidated Plan, which outlines the City’s actual accomplishments for the period of July 1, 2021, through June 30, 2022. It also describes the City’s progress in meeting the goals and objectives outlined in the City’s Five-Year Consolidated Plan.

CAPER Summary
CDBG and ESG Programs
During Planning Year (PY) 2021-22 reporting period, the City of San Bernardino received $3,598,406.00 in CDBG and ESG funds. The City continues to make progress toward meeting its long-term goals. The 2021-2022 CAPER (Attachment 1) contains detailed descriptions of annual goals and accomplishments. City staff continues to achieve the goals and objectives of the Consolidated Plan.

Staff's assessment of the 2020-2021 CAPER indicates there was activity in some areas such jobs created, fair housing/landlord tenant assistance, and homeless prevention, Packet Pg. 259
however, there was no activity within improvement of facilities and infrastructure. This is due to delays of materials because of shortages and the COVID-19 pandemic. As a result of staff shortages, many if not all the subrecipients received their funding late, leaving them little to no time to expend the funds. As a result, many of the ESG subrecipients had nothing to report with the funds since they were not spent.

Additionally, the City recently re-staffed the department. The City has developed policies and procedures for both HOME and CDBG and will work to develop program guidelines to implement a homebuyer program. City staff will make necessary adjustments to make changes and/or comply with the City's goals and objectives with what can be achieved with the given resources. Such as implementing protocols, and monthly monitoring for ESG funded programs.

Select Goals and Accomplishments
Activity Source/Amount Unit of
Measure
Expected
Goal
Actual
Goal
Fair Housing CDBG: $73,000 Persons
Assisted 2,700 3,000
Economic
Development
CDBG:
$23,375.00
Businesses
Assisted 10 10
Improve
Facilities &
Infrastructure
CDBG:
$743,094.61
Persons
Assisted 50 50
Emergency
Solutions
Grant (ESG)
ESG: $243,005 Persons
Assisted Unknown Unknown
Citizen Participation
Federal regulations require that the CAPER be made available to citizens for public comment and to be considered by the City Council at a public hearing. In accordance with HUD guidelines, a notice was published in El Chicano on October 6, 2022, and in the San Bernardino Sun on October 6, 2022, inviting the public to comment on the draft CAPER. The CAPER was also made available on the City’s website, the City’s Information Center, the City’s Housing Division, and the Feldheym Library. 2021-2025 Strategic Targets and Goals
The authorization for submittal of the Fiscal Year 2021-2022 CAPER to HUD meets Key Target 3: Improved Quality of Life, specifically Goal 3a: Reduce the burden of the unsheltered through engagement, collaboration, and partnerships with other entities.

Fiscal Impact
The submission of the CAPER does not have an impact to the City's General Fund.

The activities described in the CAPER were funded entirely with federal funds from HUD. The submission of the CAPER is a condition for the City to continue receiving federal funds.

Conclusion
Packet Pg. 260
It is recommended that the Mayor and City Council of the City of San Bernardino, conduct a public hearing on the draft Fiscal Year 2021-2022 Consolidated Annual Performance and Evaluation Report (CAPER) and authorize its submission to the United States Department of Housing and Urban Development (HUD).

Attachment
Attachment 1 PY 2021-2022 Consolidated Annual Performance Evaluation Report
Ward:

All Wards
Synopsis of Previous Council Actions:

October 6, 2021: FY 2020-2021 HUD Annual Action Plan
September 16, 2020: Substantial Amendment to FY 2020-2021 HUD Annual Action Plan
April 15, 2020: FY 2020-2021 HUD Annual Action Plan
August 7, 2019: FY 2019-2020 HUD Annual Action Plan
Packet Pg. 261
CAPER 1
OMB Control No: 2506-0117 (exp. 09/30/2021)
Packet Pg. 262
CAPER 2
OMB Control No: 2506-0117 (exp. 09/30/2021)
CR-05 - Goals and Outcomes
Progress the jurisdiction has made in carrying out its strategic plan and its action plan. 91.520(a) This could be an overview that includes major initiatives and highlights that were proposed and executed throughout the program year.

The City of San Bernardino (the "City) is a direct recipient of Community Planning and Development formula grants (e.g., Community Development Block Grant, HOME Investment Partnership, and Emergency Solutions Grant). As an Entitlement City, the City is required to provide a report to the United States Department of Housing and Urban Development (HUD) on its performance in meeting the housing and community development priorities listed in its approved Five-Year Consolidated Plan. This report is called the Consolidated Annual Performance Evaluation Report (CAPER) and is due to HUD by or before September 28, 2022. This Consolidated Annual Performance and Evaluation Report (CAPER) outlines the City’s actual accomplishments for the second program year period of the City’s Five-Year Consolidated Plan, of July 1, 2021 through June 30, 2022. It also describes the City’s progress in meeting the goals and objectives outlined in the City’s Five-Year Consolidated Plan FY 2020-2024.

Comparison of the proposed versus actual outcomes for each outcome measure submitted with the consolidated plan and explain, if applicable, why progress was not made toward meeting goals and objectives. 91.520(g) Categories, priority levels, funding sources and amounts, outcomes/objectives, goal outcome indicators, units of measure, targets, actual outcomes/outputs, and percentage completed for each of the grantee’s program year goals.

Goal Category Source /
Amount Indicator Unit of Measure
Expected
–
Strategic
Plan
Actual –
Strategic
Plan
Percent
Complete
Expected
–
Program
Year
Actual –
Program
Year
Percent
Complete
Fair Housing
Non-Housing
Community
Development
CDBG:
$73,000.00
Public service
activities other than
Low/Moderate
Income Housing
Benefit
Persons
Assisted
5000 1911 60% 2,700 3000 111%
Packet Pg. 263
CAPER 3
OMB Control No: 2506-0117 (exp. 09/30/2021)
Improve Facilities
and Infrastructure
Non-Housing
Community
Development
CDBG:
$743,094.61
Public Facility or
Infrastructure
Activities other than
Low/Moderate
Income Housing
Benefit
Persons
Assisted
160000 0 0.03% 50 50 100%
Promote
Economic
Development
Economic
Development
CDBG:
$772,322.5
Public service
activities other than
Low/Moderate
Income Housing
Benefit (Section 108
Repayment)
Persons
Assisted
50 10 20.00% 214 Unknown
Promote
Economic
Development
Economic
Development
CDBG:
$23,375.00
Economic
development (micro
enterprise loan)
Businesses
Assisted
50 10 150% 10 10 100%
Planning and
Administration
Program
administration
funds
CDBG:
$211,626.09
ESG:
$25,131.00
Other Other 1 0 0.00% 1 1 100%
Expand Home
Ownership
Affordable
Housing
HOME:
$625,000.00
First-time
homebuyers
Families
assisted
50 0 0.00% 8 2 25%
Provide Homeless
and Homeless
Prevention
Services
Homeless ESG: $
175,028.04
Homeless Shelter
Persons
Assisted
3000 0 0.00%
Unknown
Provide Homeless
and Homeless
Prevention
Services
Homeless
ESG:
$38,693.49 Street Outreach
Persons
Assisted
0 0 0.00%
Unknown
Provide Homeless
and Homeless
Prevention
Services
Homeless
ESG:
$29,283.47 Rapid Re-Housing
Persons
Assisted
0 0 0.00%
Unknown
Packet Pg. 264
CAPER 4
OMB Control No: 2506-0117 (exp. 09/30/2021)
Table 1 - Accomplishments – Program Year & Strategic Plan to Date Assess how the jurisdiction’s use of funds, particularly CDBG, addresses the priorities and specific objectives identified in the plan, giving special attention to the highest priority activities identified.

City staff continues to achieve the goals and objectives of the Consolidated Plan. Staff's assessment of the 2020-2021 CAPER indicates there was activity in some areas such jobs created, fair housing/landlord tenant assistance, and homeless prevention , however, there was no activity within improvement of facitlities and infrastructure. This is due to delays of materials being delayed due to shortage and the COVID-19 pandemic. Additionally, the City recently re-staffed the department. The City has developed policies and procedures for both HOME and CDBG and will work to develop program guidelines to implement a homebuyer program. City staff will make necessary adjustments to make changes and/or comply with the City's goals and objectives with what can be achieved with the given resources.

Packet Pg. 265
CAPER 5
OMB Control No: 2506-0117 (exp. 09/30/2021)
CR-10 - Racial and Ethnic composition of families assisted Describe the families assisted (including the racial and ethnic status of families assisted).

91.520(a)

CDBG HOME ESG
White 871 1 126
Black or African American 526 1 30
Asian 40 0 0
American Indian or Alaskan Native 8 0 2
Native Hawaiian or Other Pacific Islander 2 0 0
Other 42
Total 1,489 2 164
Hispanic 422 N/A N/A
Not Hispanic 1,067 N/A N/A
Table 2 – Table of assistance to racial and ethnic populations by source of funds Narrative
The demographics of CDBG/HOME/ESG beneficiaries exhibited more diversity than the City’s population as a whole. 60% of the 2021 beneficiaries were White compared to 52% of the City's population that is White according to the 2021 American Community Survey. 34% of beneficiaries were African-American compared to 13.2% of the City's population that is African-American. The various "Other" and multi-racial categories comprised 6% of beneficiaries and 13.2% of the City population and Hispanic residents made up 100% of CDBG beneficiaries and are 66.20% of the total population.

Packet Pg. 266
CAPER 6
OMB Control No: 2506-0117 (exp. 09/30/2021)
CR-15 - Resources and Investments 91.520(a)
Identify the resources made available
Source of Funds Source Resources Made
Available
Amount Expended
During Program Year
CDBG public - federal $3,307,949.00 $1,823,418.20
HOME public - federal $1,395,707.00 $625,000.00
ESG public - federal $290,457.00 $97,578.86
Table 3 - Resources Made Available
Narrative
The figures above represent the total drawn funds from the CDBG, HOME, ESG program during the 2021-22 Program Year.

Identify the geographic distribution and location of investments Target Area Planned
Percentage of
Allocation
Actual Percentage
of Allocation
Narrative Description
CityWide 70 70
Met variety of community
development and housing needs
LMI Areas of the
City 30 30
Met variety of community
development and housing needs.

Table 4 – Identify the geographic distribution and location of investments Narrative
While all funds drawn during the 2021-22 Program Year were invested within the City of San Bernardino, a significant amount of funds were invested on Public Facility Street Improvements at 290 N. D St. ($743,094.61), and on the City’s Section 108 Repyament Program ($772,322.50). These two programs accounted for 83% of CDBG funds spent during the program year. 100% of the HOME funds expended on the program year were for the City’s First-Time Homebuyer program. The majority of ESG funds were spent on homeless shelters in the City of San Bernardino ($175,028.04), which accounted for 61% of the total amount expended in the program year.

Packet Pg. 267
CAPER 7
OMB Control No: 2506-0117 (exp. 09/30/2021)
Leveraging
Explain how federal funds leveraged additional resources (private, state and local funds), including a description of how matching requirements were satisfied, as well as how any publicly owned land or property located within the jurisdiction that were used to address the needs identified in the plan.

In FY 2021-2022, the City was 100% exempt from its HOME match.

Fiscal Year Summary – HOME Match

1. Excess match from prior Federal fiscal year 0

2. Match contributed during current Federal fiscal year 0

3. Total match available for current Federal fiscal year (Line 1 plus Line 2) 0

4. Match liability for current Federal fiscal year 0

5. Excess match carried over to next Federal fiscal year (Line 3 minus Line 4) 0 Table 5 – Fiscal Year Summary - HOME Match Report
Packet Pg. 268
CAPER 8
OMB Control No: 2506-0117 (exp. 09/30/2021)
Match Contribution for the Federal Fiscal Year
Project No. or
Other ID
Date of
Contribution
Cash
(non-Federal
sources)
Foregone
Taxes, Fees,
Charges
Appraised
Land/Real
Property
Required
Infrastructure
Site
Preparation,
Construction
Materials,
Donated labor
Bond
Financing
Total Match
0 0 0 0 0 0 0 0 0
Table 6 – Match Contribution for the Federal Fiscal Year HOME MBE/WBE report
Program Income – Enter the program amounts for the reporting period Balance on hand at
begin-ning of reporting
period
$
Amount received during
reporting period
$
Total amount expended
during reporting period
$
Amount expended for
TBRA
$
Balance on hand at end
of reporting period
$
0 0 0 0 0
Table 7 – Program Income
Packet Pg. 269
CAPER 9
OMB Control No: 2506-0117 (exp. 09/30/2021)
Minority Business Enterprises and Women Business Enterprises – Indicate the number and dollar value of contracts for HOME projects completed during the reporting period Total Minority Business Enterprises White NonAlaskan Hispanic Native or
American
Indian
Asian or
Pacific
Islander
Black NonHispanicHispanic
Contracts
Dollar
Amount 0 0 0 0 0 0
Number 0 0 0 0 0 0
Sub-Contracts
Number 0 0 0 0 0 0
Dollar
Amount 0 0 0 0 0 0
Total Women Business
Enterprises
Male
Contracts
Dollar Amount
0 0 0
Number 0 0 0
Sub-Contracts
Number 0 0 0
Dollar Amount
0 0 0
Table 8 - Minority Business and Women Business Enterprises Minority Owners of Rental Property – Indicate the number of HOME assisted rental property owners and the total amount of HOME funds in these rental properties assisted Total Minority Property Owners White NonAlaskan Hispanic Native or
American
Indian
Asian or
Pacific
Islander
Black NonHispanicHispanic
Number 0 0 0 0 0 0
Dollar
Amount 0 0 0 0 0 0
Table 9 – Minority Owners of Rental Property
Packet Pg. 270
CAPER 10
OMB Control No: 2506-0117 (exp. 09/30/2021)
Relocation and Real Property Acquisition – Indicate the number of persons displaced, the cost of relocation payments, the number of parcels acquired, and the cost of acquisition Parcels Acquired 0 0
Businesses Displaced 0 0
Nonprofit Organizations Displaced
0 0
Households Temporarily Relocated, not
Displaced 0 0
Households
Displaced
Total Minority Property Enterprises White NonAlaskan Hispanic Native or
American
Indian
Asian or
Pacific
Islander
Black NonHispanicHispanic
Number 0 0 0 0 0 0
Cost 0 0 0 0 0 0
Table 10 – Relocation and Real Property Acquisition
Packet Pg. 271
CAPER 11
OMB Control No: 2506-0117 (exp. 09/30/2021)
CR-20 - Affordable Housing 91.520(b)
Evaluation of the jurisdiction's progress in providing affordable housing, including the number and types of families served, the number of extremely low-income, low-income, moderate-income, and middle-income persons served.

One-Year Goal Actual
Number of Homeless households to be
provided affordable housing units 50 0
Number of Non-Homeless households to be
provided affordable housing units 318 0
Number of Special-Needs households to be
provided affordable housing units 75 0
Total 443 0
Table 11 – Number of Households
One-Year Goal Actual
Number of households supported through
Rental Assistance 75 0
Number of households supported through
The Production of New Units 79 2
Number of households supported through
Rehab of Existing Units 239 0
Number of households supported through
Acquisition of Existing Units 50 0
Total 443 45
Table 12 – Number of Households Supported
Discuss the difference between goals and outcomes and problems encountered in meeting these goals.

The City of San Bernardino will continue to evaluate and assess the goals and outcomes identiifed in the 2020-2024 Five Year Consolidated Plan. For FY 2021-2022, progrss toward meeting the City's second year of the five-year goals and objectives was a challenge.

The shorfall between the City's one-year goal and the actual was due to the City needing to prioritize and work with the chronically homeless through the City's street outreach program. The chronically homeless are difficult to house especially during these difficult times.

Packet Pg. 272
CAPER 12
OMB Control No: 2506-0117 (exp. 09/30/2021)
The City continued to face challenges as a result of the Covid-19 pandemic, which was an impact the City faced in mid March of 2020. On June 25, 2020, the City of San Bernardino officially declared the City as a disaster area due to the new coronavirus known as SARS-Co V-2 first detected in Wuhan, Hubei Province, People’s Republic of China, causing outbreaks of the coronavirus disease COVID-19 that has spread globally. As a consequence, the City is facing challenges in ensuring appropriate measures on how to prevent, prepare and respond to this pandemic. Many of its programs came to a halt negatively causing the ability to meet its goals and outcomes.

Additionally due to a change in the Housing and Homelessness Divions of the City’s Economic Development Department, not all metrics were successfully captured.

Discuss how these outcomes will impact future annual action plans.

The City will continue to assess its progress in meeting its Consolidated Plan goals and objectives and make adjustments as necessary. The outcomes not met this program year due to lingering COVID-19 impact will need to be carried over to future annual action plans.

1. Infill lots - MECH had been approved to complete 3 infill projects for the City, but due to an issue with one of the property titles, the project will carry over to the next program year. The City is contracting with a Title company to examine the title cloud. NPHS on the other hand has recently completed 3 premanufactured homes on in-fill lots.

Include the number of extremely low-income, low-income, and moderate-income persons served by each activity where information on income by family size is required to determine the eligibility of the activity.

Number of Households Served CDBG Actual HOME Actual
Extremely Low-income 0 0
Low-income 0 0
Moderate-income 0 0
Total 0 0
Table 13 – Number of Households Served
Narrative Information
CDBG and HOME affordable housing production were significantly inhibited by the COVID-19 pandemic.

Both contractors and homeowners were reluctant for fear of contracting and spreading the corona virus and the availability of cost estimators and inspectors were also limited.

Packet Pg. 273
CAPER 13
OMB Control No: 2506-0117 (exp. 09/30/2021)
CR-25 - Homeless and Other Special Needs 91.220(d, e); 91.320(d, e); 91.520(c) Evaluate the jurisdiction’s progress in meeting its specific objectives for reducing and ending homelessness through:

Reaching out to homeless persons (especially unsheltered persons) and assessing their individual needs
The City's Homeless Street Outreach Team continues to provide daily mobile outreach to the most serviceresistant homeless population in San Bernardino. The Outreach Team will have generally engaged about 400 homeless individuals per year. During PY 2021-2022 the City continues to support the efforts of its service providers in ending homelessness through the Regional Continuum of Care strategy. In terms of reaching out to homeless persons, the City continued with its initial objective of the Homeless Street Outreach Team. The City contracted with Step Up on Second, whose goal was to enhance the quality of life of residents of the City by meeting the social services needs of those within City boundaries who are experiencing chronic homelessness and mental health issues and/or chronic medical conditions. Their program consisted of street-based outreach and engagement. Outreach Workers assisted individuals with a variety of services that ranged from getting vital documents to medical services; transition into permanent supportive housing with case management. They also linked homeless persons and families to permanent supportive housing.

Addressing the emergency shelter and transitional housing needs of homeless persons The City continues to fund various organizations that provide emergency shelter and transitional housing for the homeless. During PY 2021-2022, ESG funds were awarded to the following non-profit agencies that specialize in providing support services and emergncy shelter to homeless populations:
• Central City Lutheran Mission
• The Salvation Army, 180 E
• Family Service Association Of Redlands
Helping low-income individuals and families avoid becoming homeless, especially extremely low-income individuals and families and those who are: likely to become homeless after being discharged from publicly funded institutions and systems of care (such as health care facilities, mental health facilities, foster care and other youth facilities, and corrections programs and institutions); and, receiving assistance from public or private agencies that address housing, health, social services, employment, education, or youth needs The City of San Bernardino continues to fund various non-profit organizations that address the needs of low income residents that are at risk of becoming homeless. With the collaboration of these non-profit organizations and the City, a total of 164 persons were served. Case management, rapidly reconnecting them to permanent housing, Rapid Re-Housing, rental assistance and homelessness prevention were Packet Pg. 274
CAPER 14
OMB Control No: 2506-0117 (exp. 09/30/2021)
done when these non-profit organizations assisted their low-income individual clients and families. The Coordinated Entry System (CES) was used for clients to quickly identify, assess, refer and connect clients to housing assistance and services. Those clients exiting institutions or experiencing a housing crises were connected to CES to quickly place them in shelter while getting case management to place them in some type of housing. Once the clients were placed in either a shelter or housing, case management was still provided until the client was stabilized. During PY 2021-2022, ESG funds were awarded to the following non-profit agencies that specialize in providing support services and Homelessness Prevention/Rapid Re-Housing to those that can become homeless:
• Community Action Partnership Of San Bernardino County • Family Service Association Of Redlands
• The Salvation Army
Helping homeless persons (especially chronically homeless individuals and families, families with children, veterans and their families, and unaccompanied youth) make the transition to permanent housing and independent living, including shortening the period of time that individuals and families experience homelessness, facilitating access for homeless individuals and families to affordable housing units, and preventing individuals and families who were recently homeless from becoming homeless again
In PY 2021-2022, The City provided ESG funding to Step Up On Second that provides essential service referrals and housing placement services to homeless and near-homeless persons. They also provide daily street outreach to the most service-resistant homeless population in San Bernardino.

Packet Pg. 275
CAPER 15
OMB Control No: 2506-0117 (exp. 09/30/2021)
CR-30 - Public Housing 91.220(h); 91.320(j)
Actions taken to address the needs of public housing
The City falls within the jurisdiction of the Housing Authority of the County of San Bernardino (HACSB).

HACSB administers the Housing Choice Voucher Program, which provides rental assistance to eligible residents of San Bernardino by providing monthly rental assistance to participants who want to rent from a private landlord, but cannot afford the entire monthly rental payment.

Actions taken to encourage public housing residents to become more involved in management and participate in homeownership
The City does not own any public housing units, and therefore has not undertaken efforts to encourage public housing residents to become more involved in the management of public housing units. As for homeownership opportunities, the City has implemented an Infill Housing Program that uses HOME funds to construct housing units on City-owned or Redevelopment Agency owned parcels which are sold to lowincome qualified homebuyers. The City helped 2 familys become first time homebuyers in PY 2021-2022.

The City also works with Inland Fair Housing and Mediation Board and Neighborhood Partnerships Housing Services, Inc. to provide First Time Homebuyer workshops to educate potential borrowers in the complete process of purchasing a home. These agencies also provide other services such as Default/Foreclosure Prevention and Reverse Mortgage counseling services; and financial education workshops that help homeowners preserve their housing.

Actions taken to provide assistance to troubled PHAs
The Housing Authority of the County of San Bernardino (HACSB) accepts applications for Section 8 ProjectBased housing for families and senior households. Each year HUD reviews and scores the housing authority’s Section 8 program management based on 14 different criteria. This score is a reflection of how well the Housing Authority manages the Section 8 waiting list, the physical quality of housing assisted with Section 8 and the financial management of the program. As a “Moving to Work Demonstration” provider, HACSB is not subject to the traditional Public Housing Authority (PHA) and Section Eight Management Assessment Program (SEMAP) scoring; however, HACSB is a “High Performer” agency per HUD standards Packet Pg. 276
CAPER 16
OMB Control No: 2506-0117 (exp. 09/30/2021)
CR-35 - Other Actions 91.220(j)-(k); 91.320(i)-(j)
Actions taken to remove or ameliorate the negative effects of public policies that serve as barriers to affordable housing such as land use controls, tax policies affecting land, zoning ordinances, building codes, fees and charges, growth limitations, and policies affecting the return on residential investment. 91.220 (j); 91.320 (i) The City is currently working on a comprehensive update to the Development Code and has begun community outreach for a new General Plan. Placeworks, a consulting firm, has been chosen to develop the General Plan, which has begun with community engagement in January/February 2021. The work includes eliminating constraints, with respect to land use regulations, by developing and adopting a new Development Code that unifies and simplifies the City’s development regulations and processes, and a new General Plan that will include land use designations to facilitate the development of housing and mixed-use development. The City is identifying its obstacles that slow down the City's housing pipeline and working to improve the enabling environment that includes internal and external policies and constraints.

General Lot Consolidation Incentive - Small, individual lots offer limited development potential, and generally cannot support onsite property management. Development opportunities could be increased through a small-lot consolidation program that offers a 15 percent density bonus for projects with a residential component that are committing to a maintenance plan and having on-site management. The City is anticipating amending the Development Code to incentivize lot consolidation and the reuse conversion of commercial space to housing.

Density Bonus Provisions - Density bonus projects can be an important source of housing for lower and moderate income households. The City will amend the Development Code to reflect the latest amendments to State density bonus law.

Transitional and Supportive Housing - The City plans to amend the Development Code to adequately define transitional and permanent supportive housing in order to eliminate confusion and facilitate the review and approval process for this housing type.

Streamlined Processing - The City is committed to continuing the streamlining of development activities and is applying for an SB2 planning grant that will assist with streamlining. The City will continue to analyze potential programs that seek to eliminate land use constraints, particularly as related to the provision of new housing and rehabilitation of existing housing. The City amended its Development Code in 2012 to make it more user-friendly. As part of the Development Code update, the City also introduced a new streamlined type of Conditional Use Permit: the Minor Use Permit (MUP). The MUP is reviewed by the Development/Environmental Review Committee rather than the Planning Commission, which requires less staff time (and a relatively shorter process for developers), lower fees, and can be used in lieu of a Conditional Use Permit (CUP) for certain qualified projects.

Packet Pg. 277
CAPER 17
OMB Control No: 2506-0117 (exp. 09/30/2021)
Actions taken to address obstacles to meeting underserved needs. 91.220(k); 91.320(j) The greatest obstacle to meeting the needs of the underserved is a lack of public and private resources to fully address the priorities identified in this Consolidated Plan. The City of San Bernardino has targeted its CDBG, HOME and ESG in PY 2021-2022 to fund activities that meet the needs of the underserved. Additionally, the City is working with the Center for Community Investments (CCI) and Dignity Health in the Accelerating Investments in Healthy Communities (AIHC) initiative whose goal is to address the housing and health needs of the underserved in our community. Actions taken:

1. Development of Owner Occupied Rehabilitation to address health and safety needs of owner occupants;

2. ESG Street Outreach

3. Infill Housing utilizing blighted vacant lots for new owner housing to improve neighborhoods.

Due to lack of public resources the City has partnered in order to leverage additional resources with the Mexican Consulate, Inland Empire Small Business Development Center to train prospective future small business owners.

Actions taken to reduce lead-based paint hazards. 91.220(k); 91.320(j) An estimated 17,809 housing units occupied by low- and moderate-income households in San Bernardino may contain lead-based paint; this constitutes approximately 27% of the City's housing stock. To reduce possible lead-based paint hazards, the City has taken the following actions:
• Included lead testing and abatement procedures in all rehabilitation activities, where appropriate.
• Monitored the lead-poisoning data maintained by the San Bernardino County Department of Health Services.
• Educated owner occupants, participating in City funded rehab programs on the health hazards of lead-based paint through the use of brochures and encouraged screening children for elevated blood-lead levels.
• Sent housing staff to the Lead Safe Housing Rule Amendment Training. Sent subrecipient/CHDO staff to the Lead Safe Housing Rule Amendent Training.

Procedurally, the City will continue to monitor the HUD website for any revisions to the lead-paint hazards regulations and ensure that the City’s policies and procedures remain current.

Packet Pg. 278
CAPER 18
OMB Control No: 2506-0117 (exp. 09/30/2021)
Actions taken to reduce the number of poverty-level families. 91.220(k); 91.320(j) Actions taken to reduce the number of poverty-level families in PY 2021-2022:
• The City established a First Time Homebuyer program (Infill Housing), which instead of requiring that a family resell their home to another low-income household, utilizes recapture provisions to allow a family to capture the equity in their house, thus accumulating wealth which is the most effective way of reducing the number of poverty level households. • The City funded five (5) subrecipients under the ESG grant: Community Action Partnership of San Bernardino County, which they assisted clients with Homelessness Prevention; Family Service Association of Redlands, that assisted clients with Emergency Shelter/Motel Voucher, and Homelessness Prevention; Lutheran Social Services assisted clients with Emergency Shelter; Step Up on Second assists clients with Street Outreach; and The Salvation Army Hospitality House, which they assisted women and children with Emergency Shelter.

Actions taken to develop institutional structure. 91.220(k); 91.320(j) There are a variety of agencies, local governments, non-profit organizations, businesses and financial institutions play a vital role in carrying out San Bernardino’s housing and community development goals and objectives. The relationships and interaction of these entities as they work toward achieving these goals and objectives is referred to as institutional structure. As the lead for the City's 2020-2024 Consolidated Plan, the City’s Community and Economic Development Department analyzes its performance in addressing the community’s housing and community development needs and develops strategies to improve its institutional structure.

The City has revised its policies and procedures for CDBG, OORP, and ESG. The City has an organizational chart for its Community and Economic Development Department and Housing Division functions. If and when the opportunity arises, City staff will attend trainings such as HEROS, HOME, IDIS, CDBG, and Lead Based Paint.

In conjunction with other City departments, such as Public Works, Parks, Recreation and Community Services, staff will continue to identify the community's greatest needs and allocate resources accordingly.

Staff will continue to work with for-profit and non-profit developers and lenders to facilitate the improvement, preservation, and/or creation of affordable housing opportunities for low and moderate income households within the City.

Furthermore, the City will continue to work on coordinating activities with County of San Bernardino agencies such as the Department of Behavioral Health, Community Development and Housing Agency, CAPER 21 OMB Control No: 2506-0117 (exp. 06/30/2018) Office of Homeless Services and the San Bernardino County Housing Authority to continue to meet the needs of the City's special needs Packet Pg. 279
CAPER 19
OMB Control No: 2506-0117 (exp. 09/30/2021)
populations by providing services and affordable housing opportunities.

In addition, the City will continue to improve internal processes regarding the allocation and administration of all federal and state funded programs by identifying structural gaps and enhancing protocols to allow for greater accuracy in reporting and monitoring.

Actions taken to enhance coordination between public and private housing and social service agencies. 91.220(k); 91.320(j)
During PY 2020-2021, the City made the following progress toward improving communication and coordination between itself, nonprofit service organizations, and residents:
• The City improved its Notice of Funding Availability (NOFA) application for federal funding and housing staff held public meetings to announce the release of the CDBG Program NOFA, to explain the application process and answer questions.
• The City posted its Consolidated Plan, Action Plan, CAPER, and Notice of Funding Availability (NOFA) for federal funds on the City’s website (www.sbcity.org). • The City has developed a two year affordable housing pipeline to identify projects and capital needs.

Identify actions taken to overcome the effects of any impediments identified in the jurisdictions analysis of impediments to fair housing choice. 91.520(a) Each year the City pledges to affirmatively further fair housing and take appropriate actions to overcome the effects of the impediments to fair housing that are identified in the City’s five-year planning document called the Analysis of Impediments (A.I.) to Fair Housing Choice (A.I.). HUD guidance indicates that the City must report on the actions taken during the fiscal year to overcome the effects of private sector. Accomplishments were made during PY 2020-2021 in the City of San Bernardino's A.I.

Packet Pg. 280
CAPER 20
OMB Control No: 2506-0117 (exp. 09/30/2021)
CR-40 - Monitoring 91.220 and 91.230
Describe the standards and procedures used to monitor activities carried out in furtherance of the plan and used to ensure long-term compliance with requirements of the programs involved, including minority business outreach and the comprehensive planning requirements
As the lead for the City's Consolidated Plan, the Community and Economic Development Department is continually improving its standards and procedures to monitor the performance and effectiveness of housing and community development activities. The Community and Economic Development Department is responsible to monitor all housing projects and federal compliance of housing and nonhousing projects funded with CDBG, HOME, and ESG. It undertakes two types of monitoring: program monitoring (which includes the Minority Business Outreach efforts) and Consolidated Plan monitoring.

Both types of monitoring ensure the success of Consolidated Plan projects and activities.

Program Monitoring The City implements several monitoring techniques in which to assess the effectiveness of its activities. These techniques include a mandatory Subrecipient Training Workshop with its subgrantees to discuss methods for complying with federal and city requirements prior to the start of the fiscal year, and a combination of desk review and on-site monitoring techniques to ensure on-going compliance of Federally-funded activities.

Minority Business Outreach As an Entitlement recipient of CDBG, HOME and ESG funds, the City of San Bernardino is required to provide business opportunities to minority and women-owned businesses in connection with the activities funded through the CDBG, HOME, and ESG grant. To comply with these requirements, the City participated in outreach events for disadvantaged business enterprises, posted its bid documents on the City's website and other e-Procurement websites where potential bidders may obtain these request for bids through the internet. The City also encourages MBE-WBE firms to compete for CDBG, HOME and ESG construction contacts. City staff ensures the Contractor-Subcontractor Activity Report and the MBE-WBE Summary report is submitted to the HUD as required.

Consolidated Plan Monitoring Staff oversaw the planning and budgeting process to ensure that federally-funded activities were consistent with the Consolidated Plan’s identified high- and possibly medium-priority objectives and grant requirements. Staff also provided technical guidance regarding program structure, income requirements, and document compliance. For IDIS, staff gathered quarterly program statistical reports and updated all necessary fields from setup to completion of each project and activity. Environmental reviews records were prepared for each federally-funded activity and monitoring of construction activities that triggered Davis-Bacon and Federal Labor compliance was conducted. The City will continue to monitor the progress of its PY 2020-2021 Consolidated Plan goals and objectives and make any necessary adjustments to ensure the effective use of these federal dollars.

Citizen Participation Plan 91.105(d); 91.115(d)
Packet Pg. 281
CAPER 21
OMB Control No: 2506-0117 (exp. 09/30/2021)
Describe the efforts to provide citizens with reasonable notice and an opportunity to comment on performance reports.

The City encouraged public participation in the review and assessment of PY 2020-2021 by making the draft CAPER available for public review and comment beginning September 16, 2022 and up to and including September 30, 2022. A notice was posted within the City Hall and on the City’s website inviting the public to comment on the draft CAPER. The CAPER was also made available on the City’s website, the City’s Information Center, and the City’s Community and Economic Development webpage.

See attached copy of this notices. The City held a public hearing on the CAPER and the City’s performance for Program Year 2021-2022 on October 19, 2022 at 7:00 p.m. in the City of San Bernardino Council Chambers at Feldheym Public Library.

No public comments were received.

Packet Pg. 282
CAPER 22
OMB Control No: 2506-0117 (exp. 09/30/2021)
CR-45 - CDBG 91.520(c)
Specify the nature of, and reasons for, any changes in the jurisdiction’s program objectives and indications of how the jurisdiction would change its programs as a result of its experiences.

There was no activity in areas such as jobs created/retained because the City's department does not have enough staff to oversee the prgrams. These adjustments were made during the PY 2020-2021. The City will continue to monitor the progress of its PY 2021-2022 Consolidated Plan goals and objectives and make any necessary adjustments to ensure the effective use of these federal dollars.

All funds were used to meet a qualified national objective. For activities that served a target clientele that was not presumed to be primarily low- and moderate-income, the City or its designated subrecipients documented household income.

CDBG funds were not used on a project that led to the displacement or relocation of a household or business.

The City does have an existing Section 108 guaranteed loan. In PY 2021-2022, the City expended $772,322.50 fpr Section 108 Repayments.

Does this Jurisdiction have any open Brownfields Economic Development Initiative (BEDI) grants?
No
[BEDI grantees] Describe accomplishments and program outcomes during the last year.

Not applicable.

Packet Pg. 283
CAPER 23
OMB Control No: 2506-0117 (exp. 09/30/2021)
CR-50 - HOME 91.520(d)
Include the results of on-site inspections of affordable rental housing assisted under the program to determine compliance with housing codes and other applicable regulations Please list those projects that should have been inspected on-site this program year based upon the schedule in §92.504(d). Indicate which of these were inspected and a summary of issues that were detected during the inspection. For those that were not inspected, please indicate the reason and how you will remedy the situation.

Due to staff changes in the Housing Division attending other time constraint projects, those units that were scheduled for PY 2021-2022 and not inspected will be inspected during the PY 2022-2023.

The City is developing a Housing Compliance position to undertake the inspection of rental units.

The City has completed a schedule and anticipates having inspections completed by the end of PY 2022- 2023 so it may be able to report its results in the PY 2022-2023 CAPER.

Provide an assessment of the jurisdiction's affirmative marketing actions for HOME units.

92.351(b)
According to the regulations, HOME rental projects consisting of five or more assisted units must include and adhere to affirmative marketing procedures and requirements. For each HOME project the city undertakes, that triggers this requirement, an affirmative marketing plan is developed. Each Affirmative Marketing Plan includes the following:
§ List of methods to inform the public, owners and potential tenants about fair housing laws and the City’s marketing policy;
§ Description of the efforts that will be made to conduct affirmative market housing units assisted with HOME funds.
§ Owners and leasing agents will place advertisements to market HOME-assisted units through local sources, public agencies and social service organizations; § Description of outreach efforts to people not likely to apply for housing without special outreach.

These efforts will include the distribution of marketing materials to organizations that likely have contact with these populations;
§ Maintenance of records to document actions taken to affirmatively market HOME-assisted units and to assess marketing effectiveness; and
§ Description of actions that will be taken if requirements are not met Packet Pg. 284
CAPER 24
OMB Control No: 2506-0117 (exp. 09/30/2021)
Refer to IDIS reports to describe the amount and use of program income for projects, including the number of projects and owner and tenant characteristics Describe other actions taken to foster and maintain affordable housing. 91.220(k) (STATES ONLY: Including the coordination of LIHTC with the development of affordable housing).

91.320(j)
With approximately 33% of the City’s families below the poverty level, the need for affordable housing continues to be a priority for the City. To foster and maintain affordable housing in San Bernardino, the City has the following goals:
• Expand homeownership opportunities
• Provide access to fair housing services
• Preserve and Rehabilitate Housing
For PY 2021-2022, actions taken by the City to foster and maintain affordable housing include:
• Collaborated with Housing Partners I and Neighborhood Partnership Housing Services (designated CHDOs) to develop single-family homes on vacant city-owned properties to be sold to income-qualified families
• Initiated the Owner Occupied Residential Rehabilitation Program that provides financial assistance to income-qualified San Bernardino homeowners to make necessary repairs to their homes.
• Funded Step Up On Second to assist chronically homeless person(s) find housing.

Packet Pg. 285
CAPER 25
OMB Control No: 2506-0117 (exp. 09/30/2021)
CR-58 – Section 3
Identify the number of individuals assisted and the types of assistance provided Not applicable
Total Labor Hours CDBG HOME ESG HOPWA HTF
Table 14 – Total Labor Hours
Qualitative Efforts - Number of Activities by Program CDBG HOME ESG HOPWA HTF Table 15 – Qualitative Efforts - Number of Activities by Program CR-60 - ESG 91.520(g) (ESG Recipients only)
ESG Supplement to the CAPER in e-snaps
For Paperwork Reduction Act

1. Recipient Information—All Recipients Complete
Basic Grant Information
Recipient Name SAN BERNARDINO
Organizational DUNS Number 073604563
UEI
EIN/TIN Number 956000772
Indentify the Field Office LOS ANGELES
Identify CoC(s) in which the recipient or
subrecipient(s) will provide ESG
assistance
San Bernardino City & County CoC
ESG Contact Name
Prefix Ms
First Name Cassandra
Middle Name
Last Name Searcy
Suffix
Title Deputy Director Housing & Homelesness
ESG Contact Address
Street Address 1 201 North E Street
Street Address 2
City San Bernardino
State CA
ZIP Code 92401
Phone Number 909-384-7270
Packet Pg. 286
CAPER 26
OMB Control No: 2506-0117 (exp. 09/30/2021)
Extension
Fax Number
Email Address [email protected]
ESG Secondary Contact
Prefix Ms
First Name Princess
Last Name Wilson
Suffix
Title Management Analyst
Phone Number 909.384.7272 | x3064
Extension
Email Address [email protected]

2. Reporting Period—All Recipients Complete
Program Year Start Date 07/01/2021
Program Year End Date 06/30/2022
3a. Subrecipient Form – Complete one form for each subrecipient Subrecipient or Contractor Name: COMMUNITY ACTION PARTNERSHIP OF SAN BERNARDINO COUNTY
City: San Bernardino
State: CA
Zip Code: 92408, 2607
DUNS Number: 144663296
UEI:

Is subrecipient a victim services provider: N
Subrecipient Organization Type: Other Non-Profit Organization ESG Subgrant or Contract Award Amount: 54446
Subrecipient or Contractor Name: CENTRAL CITY LUTHERAN MISSION City: San Bernardino
State: CA
Zip Code: 92405, 5045
DUNS Number: 179884713
UEI:

Is subrecipient a victim services provider: N
Subrecipient Organization Type: Other Non-Profit Organization ESG Subgrant or Contract Award Amount: 70000
Packet Pg. 287
CAPER 27
OMB Control No: 2506-0117 (exp. 09/30/2021)
Subrecipient or Contractor Name: The Salvation Army, 180 E City: Long Beach
State: CA
Zip Code: 90802, 4708
DUNS Number: 074629460
UEI:

Is subrecipient a victim services provider: N
Subrecipient Organization Type: Other Non-Profit Organization ESG Subgrant or Contract Award Amount: 72444
Subrecipient or Contractor Name: Step Up on Second
City: San Bernardino
State: CA
Zip Code: 92408, 1016
DUNS Number: 362990244
UEI:

Is subrecipient a victim services provider: N
Subrecipient Organization Type: Other Non-Profit Organization ESG Subgrant or Contract Award Amount: 86168
Subrecipient or Contractor Name: Family Service Association of Redlands City: Redlands
State: CA
Zip Code: 92374, 3013
DUNS Number: 153691985
UEI:

Is subrecipient a victim services provider: N
Subrecipient Organization Type: Other Non-Profit Organization ESG Subgrant or Contract Award Amount: 63000
Packet Pg. 288
CAPER 28
OMB Control No: 2506-0117 (exp. 09/30/2021)
CR-65 - Persons Assisted

4. Persons Served
NOTE: Due to a change in the staff in the Housing and Homeleness Division of the Economic Development Department, the information for persons served is incomplete and unknown.

11. Project Outcomes Data measured under the performance standards developed in consultation with the CoC(s)
In PY 2021-2022, the City's ESG subrecipients demonstrated the financial management and programmatic expertise to successfuly develop, implement and monitor the ESG-funded activities. Each subrecipient participated in HMIS, making sure each client was screened, evaluated and determine the eligibility of each individual or family's eligibility for ESG assistance and the amount and types of assistance the individual or family needs to regain stability in permanent housing. This was a challenge despite the pandemic everyone was and is still facing.

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CR-75 – Expenditures

11. Expenditures
11a. ESG Expenditures for Homelessness Prevention
Dollar Amount of Expenditures in Program Year
2018 2019 2020 2021
Expenditures for Rental Assistance 28,716 18,398 0
Expenditures for Housing Relocation
and Stabilization Services - Financial
Assistance 0 0 0
Expenditures for Housing Relocation &
Stabilization Services - Services 0 0 0
Expenditures for Homeless Prevention
under Emergency Shelter Grants
Program 0 0 0
Subtotal Homelessness Prevention 28,716 18,398 0 18,398 Table 25 – ESG Expenditures for Homelessness Prevention 11b. ESG Expenditures for Rapid Re-Housing
Dollar Amount of Expenditures in Program Year
2018 2019 2020 2021
Expenditures for Rental Assistance 17,245 10,300 0
Expenditures for Housing Relocation
and Stabilization Services - Financial
Assistance 0 0 0
Expenditures for Housing Relocation &
Stabilization Services - Services 0 0 0
Expenditures for Homeless Assistance
under Emergency Shelter Grants
Program 0 0 0
Subtotal Rapid Re-Housing 17,245 10,300 0 29283.47
Table 26 – ESG Expenditures for Rapid Re-Housing
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11c. ESG Expenditures for Emergency Shelter
Dollar Amount of Expenditures in Program Year
2018 2019 2020 2021
Essential Services 0 0 0
Operations 101,184 54,773 0
Renovation 0 0 0
Major Rehab 0 0 0
Conversion 0 0 0
Subtotal 101,184 54,773 0 175,028.04
Table 27 – ESG Expenditures for Emergency Shelter
11d. Other Grant Expenditures
Dollar Amount of Expenditures in Program Year
2018 2019 2020 2021
Street Outreach 29,609 38,693 0 38,693
HMIS 20,000 0 0 3,641
Administration 16,754 16,506 0 21,490
Table 28 - Other Grant Expenditures
11e. Total ESG Grant Funds
Total ESG Funds
Expended
2018 2019 2020 2021
352,178 213,508 138,670 0 286,534
Table 29 - Total ESG Funds Expended
11f. Match Source
2018 2019 2020 2021
Other Non-ESG HUD Funds 0 0 0 0
Other Federal Funds 283,117 131,231 0 0
State Government 0 0 0 0
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Local Government 279,889 0 0 0
Private Funds 86,840 91,504 0 0
Other 250,000 11,101 0 0
Fees 0 0 0 0
Program Income 0 0 0 0
Total Match Amount 899,846 233,836 0 0
Table 30 - Other Funds Expended on Eligible ESG Activities 11g. Total
Total Amount of Funds
Expended on ESG
Activities
2018 2019 2020 2021
1,485,860 1,113,354 372,506 0 286,534
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Fair Housing Update
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PUBLIC HEARING
City of San Bernardino
Request for Council Action
Date: November 2, 2022
To: Honorable Mayor and City Council Members
From: Robert D. Field, City Manager;
Barbara Whitehorn, Agency Director of Administrative Services Department: Finance
Subject: Community Facilities District No. 2021-1 (Ferree Street) 2022 Special Tax Bonds (Ward 3)
Recommendation:

Adopt Resolution No. 2022-225 of the Mayor and City Council of the City of San Bernardino, California, authorizing the issuance of, not to exceed $4,000,000, aggregate principal account of Community Facilities District No. 2021-1 (Ferree Street) of the City of San Bernardino Special Tax Bonds, Series 2022; approving a form of preliminary official statement, a form of the fiscal agent agreement, a form of bond purchase agreement, and a form of continuing disclosure agreement; making certain determinations relating thereto; and authorizing certain other action in connect therewith.

Background
The City Council formed the Community Facilities District No. 2021-1 (Ferree Street) of the City of San Bernardino, County of San Bernardino, State of California” (“CFD No. 2021-1”) on March 3, 2021, under the provisions of the Mello-Roos Community Facilities Act of 1982 (the “Act”), which authorizes CFDs to levy special taxes (the “Special Taxes”) to pay for the costs of certain public facilities, including the Facilities, and to issue bonds payable from the Special Taxes. In 2021, the City Council authorized the sale of up to $4 million in bonds.

In accordance therewith, CFD No. 2021-1 now intends to issue its Special Tax Bonds, Series 2022 (the “Series 2022 Bonds”), secured by the Special Taxes levied on 6.38 taxable acres which upon build out will consist of 96 single family homes within the boundaries of CFD No. 2021-1. The City Council action proposed approves the sale and issuance of up to $4 million in CFD No. 2021-1 Special Tax Bonds and approves forms of related documents including the Preliminary Official Statement, Fiscal Agent Agreement, Bond Purchase Agreement, and other related documents. The bond sale is proposed for the week of November 14, 2022, and a bond closing at the beginning of December. The Series 2022 Bonds will be sold by the City to finance the City Packet Pg. 305
Facilities and repaid over a term of 30 years in approximately equal annual payments.

In addition to bond debt service, Special Taxes will be levied to pay for annual administration of the Series 2022 Bonds by CFD No. 2021-1.

Century Communities of California, LLC, a Delaware limited liability company (the “Developer”) acquired the property in the District on March 1, 2021. As of the September 1, 2022 date of value (the “Date of Value”) of the Appraisal Report 28 of the 96 planned single family residential homes had been completed and conveyed to individual homeowners. Of the remaining 68 residential lots, the Developer owned 3 model homes (none of which were in escrow), 21 homes, which were over 95% completed (10 of which were in escrow), 35 homes under construction had not yet reached 95% completion (2 of which were in escrow) and 9 finished lots (none of which were in escrow), as of the Date of Value. Homes under contract may not result in closed escrows as sales contracts are subject to cancellation by the homebuyers.

The CFD 2021-1 contains approximately 9.66 gross acres or approximately 6.38 net taxable acres, located in the City, north of the I-10 Freeway, south of Sycamore Lane between Ferree Street and Richardson Street. The District encompasses Tract Map No. 20293 (the “Property”) and is planned for 96 single family residential homes at buildout (the “Project”). Homes within the District are planned to consist of 96 single family homes with three floor plans (“Plan 1,” “Plan 2,” and “Plan 3”) ranging in size from approximately 1,796 square feet to approximately 1,955 square feet.

Discussion
For CFD No. 2021-1, it is proposed that bonds be sold to generate approximately $2.810 million in bond proceeds, depending on bond market conditions at time of sale.

The bond sale is expected to occur the week of November 14, 2022, with a closing by the beginning of December 2022. Bond proceeds will be used to fund reimbursements for public improvements and public facilities fees paid by the Developer, fund a reserve fund, and fund costs of bond issuance, including a fee to cover City staff time spent towards issuing the Series 2022 Bonds. The term of the Series 2022 Bonds will be 30 years and debt service is expected to not exceed $220,000 per year. The bond true interest rate, depending on bond market condition at time of sale, is expected to be approximately 5.567%.

The Series 2022 Bonds will be sold by CFD No. 2021-1 through a negotiated sale.

Hilltop Securities is the proposed bond underwriter procured by the City following an RFP process earlier this year. The Series 2022 Bonds will be non-rated as development related CFD bonds like the Series 2022 Bonds do not qualify for investment grade bond ratings from Standard and Poor’s, Moody’s, or any major bond rating agencies even though sufficient CFD special taxes can now be levied against developed property to cover annual debt service. In the future, once all the homes have been developed and sold, an investment grade bond rating may be possible.

In May of 2022, the City retained Kitty Siino & Associates, Inc., an experienced MAI appraiser and qualified appraiser of CFD projects, following an RFP process, which Packet Pg. 306
has valued the property subject to the CFD No. 2021-1 Special Taxes. The appraised value of the properties in CFD No. 2021-1 totals $30,604,567 and will in aggregate exceed the amount of Series 2022 Bonds issued by a factor of 9.45 (the appraised value exceeds the amount of the bonds by 9.45 times). This is known as the value to lien ratio. Annual special taxes are expected range between $2,266 and $2,433 per home depending on home size. Actual closed prices have ranged from $529,990 to $626,190. In accordance with the Local Goals and Policies for all Community Facilities Districts of the City of San Bernardino, the total tax burden on the homes will be under 2% of assessed value.

The property values become significant in the event a property owner fails to pay special taxes and it becomes necessary to initiate foreclosure proceedings in order to obtain payment of special taxes to pay bond debt service. In the bond Fiscal Agent Agreement, the City has covenanted to initiate property foreclosure proceedings in the event of a failure to pay the special taxes by the following October 1st of each year.

This covenant is required in order for investors to buy the bonds. The Special Tax lien is co-equal in priority to general property taxes and is senior to any mortgages. Property owners can prepay their respective share of CFD No. 2021-1 Special Taxes on any interest payment date. The CFD No. 2021-1 Bonds will also be subject to early redemption for refinancing or special tax prepayment. The Series 2022 Bonds will have a maximum allowable funded bond reserve fund equal to maximum annual bond debt service to help cover delinquencies. The CFD law allows the City to raise CFD taxes on each home by up to 10% to cover delinquencies. Buyers of homes in CFD No. 2021- 1 have, and will, receive detailed disclosure notices related to CFD 2021-1 regarding the terms of the special taxes levied on their homes and its impact on their property tax bill.

The City will be required to annually calculate the special taxes necessary to pay bond debt service and pay annual administrative costs. The City CFD Administrator, Spicer Consulting Group LLC will place the special tax amounts on the County property tax roll annually. Once the City collects the taxes, the funds will be sent to the Fiscal Agent to make interest and principal payments on the bonds. The City together with the Fiscal Agent will also manage the bond reserve fund to apply any investment earnings to the related bond debt service. If there are property owners who are delinquent in their payment, as referenced above, the City will be required to initiate foreclosure actions.

The City CFD Administrator will monitor and take any required actions. Any costs associated with administering the CFD will come from the Administrative Expense account funded by the special taxes set up for such purposes.

CFD No. 2021-1 bond and disclosure counsel, Best Best & Krieger (who also serves as City Attorney), has prepared a Preliminary Official Statement to be approved by the City and provided to investors. A substantially final draft is attached as part of this Staff Report together with the Fiscal Agent Agreement, Bond Purchase Contract, and other legal documents related to the sale and issuance of the Bonds. The Preliminary Bond Official Statement will disclose information about the CFD and will describe the risks associated with the bonds to investors. The final Bond Official Statement will be Packet Pg. 307
available after the bond sale and will be delivered to investors. Neither the City nor CFD No. 2021-1 has any obligation to pay debt service on the bonds in the event of default or non-payment of CFD 2021-1 Special Taxes by property owners. 2021-2025 Strategic Targets and Goals
The issuance of Facilities District No. 2021-1 (Ferree Street) of the City of San Bernardino Special Tax Bonds will meet Key Target No.1: Improved Operational and Financial Capacity, by securing a long term revenue source. This project will contribute to ensure that the City is clean and attractive and provide infrastructure designed for long term economic growth.

Fiscal Impact
There is no direct fiscal impact to the City. Any bonds issued by CFD No. 2021-1 are not obligations of the City and will be secured solely by the Special Taxes levied in CFD No. 2021-1. All staff costs associated with administering the CFD will come from the CFD funds.

Conclusion
Adopt Resolution No. 2022-XX of the Mayor and City Council of the City of San Bernardino, California, authorizing the issuance of, not to exceed $4,000,000, aggregate principal account of Community Facilities District No. 2021-1 (Ferree Street) of the City of San Bernardino Special Tax Bonds, Series 2022; approving a form of preliminary official statement, a form of the fiscal agent agreement, a form of bond purchase agreement, and a form of continuing disclosure agreement; making certain determinations relating thereto; and authorizing certain other action in connect therewith.

Attachments
Attachment 1 Resolution No. 2022-225
Attachment 2 Fiscal Agent Agreement
Attachment 3 Bond Purchase Agreement
Attachment 4 Preliminary Official Statement
Ward:

Third Ward
Synopsis of Previous Council Actions:

March 3, 2021 Mayor and City Council of the City of San Bernardino, California, adopted Resolution No. 2021-42 establishing Community Facilities District No. 2021-1 (Ferree Street) of the City of San Bernardino, County of San Bernardino, State of California, and the boundaries thereof and approving a Funding Agreement.

March 3, 2021 Mayor and City Council of the City of San Bernardino, California, adopted Resolution No. 2021-43 determining the Packet Pg. 308
necessity to incur a bonded indebtedness for Community
Facilities District No. 2021-1 (Ferree Street), submitting to the qualified electors of the Community Facilities District a proposition to authorize the levy of a special tax therein, to authorize such Community Facilities District to incur a bonded indebtedness secured by the levy of a special therein to finance certain types of public facilities and to establish an
appropriations limit for such Community Facilities District and calling a special election for the Community Facilities District on a proposition for incurring such bonded indebtedness.

March 3, 2021 Mayor and City Council of the City of San Bernardino, California, adopted Resolution No. 2021-44 calling a special election and submitting to the voters of Community Facilities District No. 2021-1 (Ferree Street) of the City of San Bernardino propositions regarding the annual levy of special taxes within the Community Facilities District to pay principal of and interest on bonds thereof and to pay the costs of public facilities and establishing an appropriations limit therefore.

March 3, 2021 Mayor and City Council of the City of San Bernardino, California, adopted Resolution No. 2021-45 of the declaring the results of the consolidated special elections within Community Facilities District No. 2021-1 (Ferree Street).

March 3, 2021 Mayor and City Council of the City of San Bernardino, California, conducted first reading of Ordinance No. MC-1555 of the acting as the legislative body of Community Facilities District No. 2021-1 (Ferree Street), authorizing the levy of special taxes in such community facilities district.

March 20, 2021 Mayor and City Council of the City of San Bernardino, California, conducted a final reading and adopted Ordinance MC-1555 levying special taxes to be collected during Fiscal Year 2020/21 to pay the annual costs of certain public
improvements and costs of administration with respect to City of San Bernardino Community Facilities District No. 2021-1 (Ferree Street).

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Resolution No. 2022-225
Resolution No. 2022-225
November 2, 2022

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Mayor and City CouncilNovember 2, 2022

Mayor and City Council
November 2, 2022